Lankan
crisis and return of the dinosaurs
One does not need a doctorate from the London School of Economics nor be
a pundit from the Central Bank to realise the vulnerability of the Sri
Lankan economy. Tragically, it is an economy that is exposed at both ends.
As an import-export economy it is extremely susceptible to the vagaries
of international trade and commerce.
But what happened to us the other day had nothing really to do with
global trade and fluctuating prices of commodities or a headlong drop in
the value of our currency. It was essentially domestic.
It was very simply this. Those who had been mandated with the task of
securing our one and only international airport and main base of our air
force fell down on their job and fell down badly.
One of the problems is the foolhardiness of our political establishment
where pocket Napoleons delude themselves into believing they are military
commanders with the genius of Alexander the Great, Field Marshal Rommel
and General Giap all rolled into one. Taking a man and putting him in uniform
does not make a soldier of him.
The other problem is corruption. The talk of Colombo society is the
millions of dollars being stashed away by people at the top with their
kith and kin being involved in the arms trade. Why is the average person
in Sri Lanka being asked to pay the price of such perfidy?
Was it prescience or political buffoonery that made the government put
out a statement the other day, that Colombo was under threat by the LTTE?
Who in the so-called Special Media Information Unit wrote it and permitted
it to be released?
At the time when the whole effort of the country should have been channelled
to persuade foreign governments, foreign institutions and foreign business
organisations that the worst was over and a return to relative normality
can be expected, what does the government do? It looks straight up and
spits on its collective face.
Immediately after the attack on Katunayake, insurance underwriters imposed
heavy surcharges on shipping and cargo in and out of Sri Lanka. Within
a couple of days the increased surcharge of US$ 50,000 for the larger container
ships was pushed up to an astronomic US$ 550,000.
Furthermore the Lloyds war risk rating committee in London declared
the whole of Sri Lanka a war risk zone unlike previously when only the
north and east were considered susceptible areas.
The situation was critical. Shipping lines were by-passing Sri Lanka
because they could not afford to pay the surcharge.
In short our economy would have been in one big mess in a month or so.
Not that it is not so even now. But had the surcharges continued for any
appreciable length of time, "the consequences would have been totally catastrophic",
Ports Minister Ronnie de Mel told me in London last month.
Mr de Mel was heading a delegation to persuade Lloyds underwriters to
lift the prohibitive surcharge which would have very simply crippled the
Sri Lankan economy.
One of the arguments that Mr de Mel, a past master in the art of financial
negotiations having been finance minister for 12 consecutive years, adduced
was that Colombo had not been under LTTE attack for four years or so- not
since the bombs that destroyed much of the Galadari Hotel and part of the
new World Trade Centre.
Hardly had Ronnie de Mel uttered those words and Lloyds agreed to withdraw
the surcharge on specified conditions when, what do we read? The government's
curious statement that seemed to suggest the Tigers were at the gates.
While a concerted effort is being made to convince the rest of the world
that we are returning to normal, in Colombo, some one in his or her Socratic
wisdom is preparing the country and the world for more high jinks.
Can someone please tell me from where they excavate these intellectual
dinosaurs?
As lawlessness appears to be
the order of the day, eminent defence lawyer Ranjit Abeysuriya says our
law has enough teeth but no bite
It's a crime
By Sonali Siriwardena
Seventy-five per cent of those accused of crimes as grave as rape and murder
in Sri Lanka are released after trial.
This sky-high acquittal figure together with a spiralling crime rate
aptly illustrates the state of orderly confusion
that reigns in our country today.
As we grapple with a protracted civil conflict and mismanaged power
crisis compounded by an imminent economic slump, a blatant disregard for
the rule of law seems to pervade every segment of Sri Lankan society. Instead
of principles, we now have placards and instead of leaders we now have
politicians. The criminal justice system, it seems, has failed to deliver.
"The figures are alarming, for the conviction rate of cases taken to
court, is a paltry 25 per cent," laments eminent defence lawyer Ranjit
Abeysuriya, P.C. The high rate of rape and murder recorded in Sri Lanka
is even more shocking considering that the country boasts of all the main
religions in the world, he said.
In an interview with The Sunday Times following a recent discussion
on the law and order situation in the country, Mr. Abeysuriya said that
the non-implementation of laws is one of several contributory factors breeding
a culture of lawlessness in the country. A good example is the Firearms
Ordinance (Amendment) No. 22 of 1996, which, having come into operation
from January 1, 1997, provides ample penal sanctions for those found guilty
of the possession and use of weapons in committing crime.
According to this enactment, possession of an automatic weapon is punishable
by imprisonment for life. Any person who uses a gun, in the commission
of any offence, would be subject to punishment based on the gravity of
the crime committed. Schedules C and D of the Ordinance specify a punishment
that could extend up to death for offences such as robbery and criminal
trespass, while less serious offences such as cheating and home trespass
would carry a minimum of 15 years imprisonment.
But despite the high rate of robberies in the country, not a single
prosecution has been recorded under this provision since it came into operation
over four years ago.
Such blatant disregard for the proper implementation of laws calls for
a scrutiny of the criminal justice system that seemingly protects the very
elements it is designed to wipe out. As a member of the Sri Lanka Law Commission,
Mr. Abeysuriya is convinced that the laws available are adequate to deal
with the growing gun culture in the country. "There is enough teeth in
the law but the question is why are they not implemented," he said.
Reports that there are over 7,000 weapons missing from the security
forces, of which a majority are suspected to be in the possession of around
25,000 army deserters further increases the gravity of the problem.
Half-baked investigations carried out by the Police have also contributed
to the virtual failure of the justice system, says Mr. Abeysuriya. "Today
the Police don't appear to be doing their ordained duty for fear of running
foul of politically powerful persons. The nature of investigations carried
out is far below standard," he said. "One reason for this is the lack of
sufficient manpower due to the multi-politicization of the Police force."
" Police personnel do not have enough time to devote to crime investigation
and prevention," he points out. This situation needs immediate attention
because the maintenance of law and order in society is heavily dependent
on the strength and efficacy of law enforcement institutions such as the
Police.
Citing other impediments to the workings of the criminal justice system,
Mr. Abeysuriya believes that the procedural law of the country is too heavily
weighted in favour of the accused. The Criminal Procedure Code of Sri Lanka
recognizes that an accused enjoys a right of silence, which exempts him
from being compelled to give evidence in a case brought against him. The
burden of proving an accused guilty of the charge lies inextricably in
the hands of the prosecution, which also has the onerous task of proving
this guilt beyond reasonable doubt.
"My idea is not to do away with the burden of proof assigned to the
prosecution. It obviously is the basis of logic that the person who brings
the accusation must be able to prove the fact. My complaint is that in
deciding whether a case is proved, an overly rigid adherence to the concept
of the right of the silence of the accused stands in the way of the effectual
working of the criminal justice system," says Mr. Abeysuriya.
"The principle that the accused has a right not to be compelled to testify
must stay. But if the accused chooses to remain silent in a certain situation
where it is reasonable to expect him to offer an explanation; where it
is within his power to explain his course of action, then his failure to
do so must be permitted to be used against him to enhance the credibility
of the prosecution evidence," he said.
"No sane person would choose to remain silent in the face of a false
accusation brought against him- and in this light, I find this procedure
to be nonsensical," added Mr. Abeysuriya. "Today courts in other countries
like the US and Britain have decided that if an accused chooses to remain
silent in the face of mounting evidence against him, then his silence will
be taken into account in deciding his guilt. So our law is in fact out
of step and has to be amended so as to empower the criminal justice system
to utilize the silence of the accused in considering whether the prosecution
has proved its case," he said.
This detail was amply provided for in the Administration of Justice
Law No. 44 of 1973 which came into operation in 1974 but was later repealed
in 1979 by the government in power. This law, which immediately preceded
the present statute governing the area of criminal procedure, not merely
permitted both judges and prosecutors to utilize the silence of an accused
but also abolished the non-summary procedure which is seen as a major obstruction
to the expeditious disposal of court cases today.
According to the law of 1973, the accused was put on trial directly
after a police investigation without a magisterial inquiry as required
under the present law. "Discarding this innovative provision was a monumental
folly that has contributed in no small way to the backlog of cases congesting
the courts today," says Mr. Abeysuriya. An effective justice system that
delivers expeditiously, requires having the accused brought to court as
soon as possible. However, steps to remedy the problem are underway in
the form of a proposal, presently at bill stage, to streamline the non-summary
procedure.
A system, which enables authorities to screen cases before they go to
court, is also recommended by Mr. Abeysuriya. "This would ensure that the
cases taken to court are those that have a very good chance of ending in
a conviction," he said. "The 75 per cent acquittal rate in the country
is not only bad for the system but also emboldens the accused and dispels
his fear of getting convicted. And the message this sends out to those
resorting to criminal activity in society needs little elaboration."
"These ideas may not be easy to implement but a good start would be
to rethink all concepts, which govern the criminal justice system in the
country," he said. This includes a whole network of persons and institutions,
foremost of which is the Attorney General's Department, which is presently
housed in Colombo. The decentralization of its offices to other parts of
the country is a step that would greatly minimize the inconvenience faced
both by counsel and litigants and cure the inequitable disease of law's
delays. |