Basil Fernando’s Perceptive Fulminations on Legal System in Lanka

Chathuri Dissanayake, in The Daily News, 7 December 2015, with title “Critical changes necessary to restore eroding public faith”

basil f“It’s time to come up with a proper implementation plan to investigate and punish those involved in the corruption and crimes that occurred during the previous decades, says leading Human Rights activist, Basil Fernando”

The former Executive Director of the Asian Human Rights Commission (AHRC) highlighted that if the positive tide created in January 2015 is to be transformed in to a long-term movement, urgent legal reforms aimed at tackling graft and serious crime is a vital necessity. “I don’t say the government could have dealt with everything in eight months. But they could have declared a proper implementing policy, let it be known to everybody. By now, people should be talking of this policy, not creating political gossip about who was arrested,” claims Fernando.

Taking stock of 2015, Fernando is appreciative that the country has been able to arrest a dangerous downward trend in governance. According to him the decline started as far as 1978. Sri Lanka failed in every aspect of governance, although changes were made in the name of development, the country failed in development and governance and there was an extraordinary increase in the level of corruption, he argues.

Continuing abuses: “Above all, the legal system collapsed with a huge amount of human rights abuses taking place throughout the period.” The most significant change [since then] has been the reversal of the expanding role of the Ministry of Defence, he claims. The country was developing a type of Ministry of Defence which was being characterized as a ‘state within a state,’ where the intelligence services were seriously manipulated for political purposes; the worst possible development in any country, according to Fernando.

“In the past decade, there was a frightening development of the Ministry of Defence, and to me that is a defining change than many other aspects. If that trend continued, Sri Lanka would have become a completely closed country where everybody would have been under some form of surveillance and media freedom would have further eroded. The electoral system too would have suffered a major setback where a free and fair election would not have been possible for many years to come,” he claims, emphasising on the significance of the political change that occurred this year.

In comparison, he appreciates the enhanced level of freedom of expression and the space for freedom of assembly and pays tribute to political leaders speaking of good governance “even for mere rhetoric.” “It is some change,” he observes.“When a Head of State begins to talk about his ideology and refers to good governance, there is something to be happy about,” claims Fernando, who has been a defiant rights advocate for decades.

However, he insists that it is now time to move forward and to deliver on promises made. Both the former and current governments have promised to deal with corruption and other grave crimes but little has been done in this regard. “If the government does not make some courageous and drastic changes, they will be incapable of achieving what was promised,” he said. “Good governance is not just words, but is a serious policy approach. It is about a functioning legal system. If the legal system is not reliable, it will create adverse conditions. Nothing we envisaged could be achieved then and the public has begun to realise that,” said Fernando.

Accordingly, he said, urgent reforms are needed and bottle necks cleared. The country has “an inherently bad situation in the courts.” On an average, a criminal case takes over a decade to draw to a close. Many cases get stretched beyond that time period. These delays make the country’s legal system lose its meaning.

A criminal case should not take more than one year for trial and another one year for the appeal process to conclude, Fernando insisted. “The idea is not that you punish the criminal ‘someday.’ Because of laws delays, criminal justice is failing to be a deterrent. This ails the entire country,” he said. The poor law enforcement capacity in Sri Lanka is seriously counterproductive in achieving anything tangible, he noted. “If one has to wait for 15-20 years to have something happen, that something won’t be effective or meaningful. That time period can be used by an offender to commit may more offenses and to intimidate victims.”

“The system betrays you,” he claims. The same fate may befall the current investigations into abuse of power and resources by the former regime.

Curbing corruption: The government has indicated a broader policy framework for dealing with corruption and crime but a practical policy is needed to put a broad policy in to action, he said. “This is the main reason why we have not been able to achieve good governance. Unfortunately everyone is talking about everything else,” claimed Fernando. Accordingly, Fernando advocates the introduction of an implementation policy that is designed to achieve the goals set. “We need the hands and feet necessary for achieving good governance. The hands and feet are the Police Department and the Attorney General’s Department. If the hands and feet are paralysed, then there is little one can do,” claimed Fernando.

It was a priority to identify shortcomings in the police, the investigating bodies, the Attorney General’s Department, the Judiciary and the Bribery Commission. A key problem is the delay in court houses. The government must allocate more funds to double the number of high courts and for training and technology facilities, he said.

Reform the Police:  Added to this, the country’s main law enforcement authority, Police, is not disciplined to carry out their duties efficiently, Fernando claims. Referring to the rape and murder case of Seya, he claimed that “terrible miscarriages of justice” occurred in the hands of the police. Under pressure to investigate and bring justice to the victim, the police acted irrationally and without evidence, he claims.

“They just listen to gossip and without evidence, take this man and boy in to custody. And when they deny the police beat them up. Worse is telling the media, ‘we have solved the problem, the culprit is him’ and they tell the names of the arrested and the police think the crime is solved. That’s deception,” Fernando says severely critical of the conduct of the Police. “Secondly all the rights of those accused have been violated. That is not a criminal Justice system”. The Rights of accused should equally be protected, Fernando insists, if not “it is not a proper Criminal Justice system”.

aa-riot police  Riot police vs NDA students– Pic by Rukmal Gamage

Applauding the response of the Human Rights Commission in dealing with the complaint on police attack on the demonstration held by Higher National Diploma in Accounting (HNDA) students on October 29, he said that the Police lacks experience and understanding of how to deal with riots.

However, he is doubtful of the follow up, as the Commission can only make recommendations, as the authorities have a bad record in implementing recommendations. “We have a tradition of publicly saying ok there is a recommendation and then ignoring it.” The situation has opened up an opportunity for reforms and future discussion, to ensure that the Commission has enough power. Secondly, there is room to establish a system to monitor the recommendations being out. This could also highlight the reforms needed in the Police Department.

“The Police need to learn the distinction about a demonstration and a riot don’t treat a demonstration as a riot,” he claims, and “learn how best to respond to them”. The current system is faulty, he claims, and doesn’t serve anybody. All that is required to fix the system is to instil discipline. “This doesn’t require money, this is where discipline has to be brought in. And this requires both for the IGP and the Police Commission to act. This is also the easiest step towards good governance,” Fernando insists.

All Pictures by Rukmal Gamage 

A Note by Editor Thuppahi: One should not dwell on this topic by surveying criminal and high-profile political cases only. Take a moment to reflect on divource cases and how delays in the legal process a e used by the powerful partner –invariably the male –to intimidate and overcome the female litigant. As a further note criticism can be levelled at the whole corpus of lawyers for perpetuating postponement which have the effect, whether intended or not, of boosting their returns.

As an another aside Note that Basil Fernando has been a key figure in the ASIAN HUMAN RIGHTS COMMISISON in Hong Kong for years and chose to reside there because he would have been in danger if he returned to Sri Lanka to certain stages in its history. Nilantha Ilangamuwa fled to HK to join him a few decades back.


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One response to “Basil Fernando’s Perceptive Fulminations on Legal System in Lanka

  1. Dickie Bird.

    Basil Fernando is an arm chair critic. Making statements to the satisfaction of his pay masters.
    He is the only torture claimant to receive the right of abode in Hong Kong. There are so many other deserving Torture claimants who languish in Hong Kong whom Basil fernando has ignored.;

    We have listened to this know all critic and HR activists. He was in SL during last (02) weeks in November and from there gone on to Europe and to Belgium. It appears he is hatching something for his pay masters or gone there to combat ISIL ?????????.

    he is another Roman catholic Clergy and rest is common knowledge.
    Basil & Nilantha in the name of Human Rights living off the Country.
    if they are know all people, its not only to be critical but they must go to SL and put things in order which they are not prepared to do nor give up their perks.

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