What is sometimes forgotten is that even during those rare periods in recent decades when Sri Lanka was not governed by emergency law, both the members of the public and law enforcement officers behaved as if, in fact, the emergency regime was still in operation. Emergency law operated not only in the shadows but openly to the extent that abuse of the powers of office was accepted as a matter of course.

It is this mentality that is highly disturbing. Today when emergency law continues in all its repressive force despite the end to active fighting, we have reached a stage very akin to the manner in which we have accepted with scarcely a murmur, the wholesale negation of the 17th Amendment to the Constitution. This is a predictable pattern and would be indeed boring if the consequences of such a course of action did not wreak such terrible consequences on our governance and constitutional structures. In the case of the 17th Amendment, there was one excuse trotted out after another, each more unconvincing than the previous.

Dishonouring a constitutional promise

First it was the plea that all the nominations for the members to the Constitutional Council had not been sent to the President. Then, after in fact, consensus was reached with extreme difficulty on the nominations, all the might and main of government politicians and their allies were directed towards breaking this consensus. In addition, we had the farcical excuse of a Parliamentary Select Committee sitting ostensibly with the objective of further fine-tuning this constitutional amendment. The fact that this Committee had scarcely the quorum to sit at times was an illustrative aspect of this peculiar situation. This farce of a Select Committee is still being maintained (apparently) to even less purpose, it would seem as it has now become clear that this government has no intention of honouring this constitutional promise.

Illogical continuation of emergency

This same logic is unashamedly applied to the continuation of emergency law. Worse, there is no reason given at all as to why some of the more obnoxious Regulations cannot be withdrawn. This column has questioned time and time again as to the ultimate legacy of the Public Security Ordinance (PSO) and the Prevention of Terrorism Act (PTA) in a context where state terror and militant terror are now almost synonymous concepts. Have they helped to rein in anti state elements?

The answer is that, on the contrary, rather than helping to restrain terrorism, both the PSO and the PTA have helped to create even more hardened terrorists of ordinary Tamils caught between the Liberation Tigers of Tamil Eelam (LTTE) and the State. Now when the LTTE is no longer militarily in existence, the rationale for these laws has lost force. It is time that sensible reform of emergency laws take place. Crucially, ordinary Sri Lankan criminal procedure prescribing that an arrested suspect must be brought before a judicial officer within 24 hours, thus reducing the likelihood of abuse by arresting authorities must be adhered to. Similarly, the ordinary legal bar against the admissibility of confessions to police officers must be restored. In the minimum, the burden of proof in regard to the involuntariness of a confession should not be put on the accused.

Driven from pillar to post

In a general context, the failure of the rule of law is shown not only in the replacement of the ordinary law by emergency law without just reason. Increasingly now, the onus has shifted from state authorities to the victims themselves to obtain justice when violations of rights occur, whether the case may be a serious violation of assault, detention or disappearance or relatively minor problems involving land disputes or money disputes. In some cases, obtaining redress becomes next to impossible for either the aggrieved person or his or her loved ones driven from pillar to post. This is what is basically wrong with the due process of law in Sri Lanka at present.

Meanwhile, no government monitoring organisation or unit appears to bestir itself, at least in the minimum, to engage in immediate inquiries when complaints of human rights violations are recorded. Bodies such as the Human Rights Commisison and the National Police Commisison have been effectively negated. Further, the absence of effective sanctions against aberrant state officers who violate the basic norms of due process means that the delivering of fundamental rights judgements that are excellent in theory, has had little deterrent value in a system where police brutality has become a fact of normal life. Where the judiciary itself becomes unsympathetic to citizens who bring their appeals before the highest court, the situation becomes much worse.

Disregarding of court authority

Even when fundamental rights litigation was evidenced in its glory before judges of the Court who were not motivated by personal or political agendas, there was a tremendous distance between judicial pronouncements and their implementation. For example, decisions handed down by the Court finding torture to have been committed by police officers but these officers continues unscathed in their abuses. They were not removed from their positions or interdicted.

One particular feature in this respect was the contempt that police officers named in such applications showed to court including resorting to practices of falsifying official documents, including the Information Book. In one case where the court found that Grave Crimes Information Book and the Register/Investigation Book had been altered with impunity and utter disregard for the law, the view was taken that it was unsafe for a Court to accept a certified copy of any statement or notes recorded by the police without comparing it with the original (Kemasiri Kumara Caldera 's case, S.C. (F.R.) 343/99, SCM 6/11/2001). This judicial warning still stands good today.

Prevention, investigation and countering Impunity

This situation needs to change. Three strategies of prevention, investigation, and countering impunity needs to be acknowledged and implemented in government policy.

Addressing these problems is a matter of political will and a fundamental duty of the Sri Lankan State owed to all its citizens.