Mr Speaker, I welcome this opportunity to speak on an Adjourment Motion that seeks to strengthen the Rule of Law in Sri Lanka. This is an admirable aim, and I will give the mover of this motion the benefit of the doubt, and treat that as his principal aim. It would be a pity then if we allowed ourselves to be distracted, in discussing the matter, by efforts to make petty political points, as he seemed to do in his speech, or rather his performance.

Unfortunately much of the text of the motion brought before this House deals with the aftermath of terrorism, and goes against one of the most important principles in the administration of Justice, graphically expressed by Shakespeare in the lines

Earthly power doth then show likest God’s
When mercy seasons justice.

This was the principle government decided to adopt in dealing with former combatants. In fact, whereas earlier it had thought three of the seven categories into which former LTTE combatants were divided might be prosecuted, it has released almost all of them. Just a few in the category of the most committed remain in custody, but most of them too will soon be released. And while the majority of these were conscripts, forced to fight, so that the sympathy with which we have dealt with them is understandable, government has also decided to send for rehabilitation rather than prosecution many of those who had been detained on suspicion of terrorism before the conflict concluded. So, while I agree with the Hon TNA member, about the need for quicker resolution of those cases, what has already been done should be recognized. That is why the LLRC Action Plan Task Force should have a website to set down what has been achieved, as well as timelines for further action.

In such a context, to go on and on about extradition with regard to a particular case smacks of cynicism. It betrays an unwillingness to move forward, and suggests a very old fashioned approach to justice.

Sadly, we still have elements amongst those in authority with regard to the law who see justice as retribution, and incarceration as the way to deal, not just with those guilty of minor as well as major offences, but even those under suspicion. As we have found when looking at protecting the Rights of Children, we still have mindsets springing from the old British Poor Law system – which the British thankfully got rid of when social welfare became a right, rather than something contingent upon charity. In the old days however, it was a crime to be poor, and incarceration was the remedy. Thus, even recently we had an instance of a child being tried for reportedly stealing a pigeon. That is not what we mean, Mr Speaker, by the Rule of Law, what we mean is equity as well as justice, and mercy and reform, not retribution.

This has indeed been one of the main problems in promoting prison reform, as we found when the Human Rights Commission of Sri Lanka held a consultation on the matter last month. At that meeting it was suggested that we needed the following measures to limit the numbers of remanded, namely

  1. Legislative changes to expand the number of bailable offences
  2. Guidelines to police to work in terms of bailable offences where possible and recommend bail
  3. Guidelines to magistrates to allow bail whenever possible
  4. Guidelines to magistrates to ensure that records are kept of all those remanded, with reminders of when they should be produced again, and rulings that limit continuing remand for no good reason
  5. Guidelines to magistrates not to allow postponements except for good reason, with the JSC maintaining records of statistics of case completion by magistrates
I have been writing about these matters to the Judiciary, since the beginning of this year, but their responses tended to be cursory, and they did not seem to see themselves as responsible for finding solutions. I suppose in every political dispensation it is difficult to ensure accountability in the judiciary, but this must be done, if only by requesting them to make clear the procedures and guidelines that are to be followed, and to make these available to the public. I have written accordingly to the Presidential Secretariat, noting that, while the independence of the Judiciary must be sacrosanct in terms of the judgments they deliver, they must be subject to rules of procedure that are consistent and transparent. I can only hope then that the present discussion, about ensuring norms of conduct for the Judiciary, will establish principles through a process of consultation and consensus, rather than confrontation.

There is another area I should mention, where I believe we can do more to strengthen the Rule of Law, but where we are moving in the right direction. When I was Secretary of the Ministry of Disaster Management and Human Rights, and chaired a Committee on Police Training, some of the senior police officials who were on that Committee accused me of being negative about the police. And indeed I was negative, for I felt a serious lack of professionalism in the police in general, unlike in the army, which contributed to the breakdown in law and order we experienced when terrorism lurked round any corner. But I found even then that senior police officials too worried about the decline in training, the shortening of courses because of increasing need for personnel. And they noted that it was not just training in Human Rights, as I advocated, that was needed, but also training in Investigation, in Interrogation, and in Prosecution.

In the last few months however I have seen a remarkable transformation in the Police, and it would be churlish not to record the seminal contribution of the Inspector General of Police in reviving a sense of professionalism. Officers in the North and East, which I visit regularly, have responded magnificiently to the expectations he has imposed. At almost all Divisional Secretariat Reconciliation meetings I have attended in recent months, special mention has been made of relations between the police and the community.

Whether this is true in other parts of the country or not, I cannot say, but the change from a couple of years ago is remarkable. I hope however that this professionalism extends also to the areas senior police mentioned four years ago, namely investigation and interrogation, because there are still too many cases of significance where no leads have been found. This is not good enough, and it would be sad if inadequacies with regard to a few cases took away from the generally good record, in particular in the North.

Mr Speaker, as our National Human Rights Action Plan makes clear, and as the Action Plan formulated with regard to the Lessons Learnt and Reconciliation Commission also indicates, we have a long way to go, to reach an ideal situation. But the same is true of many other countries too, and not all of them have suffered as we did from vicious terrorism. And if we consider the situation now, in comparison with what we were suffering four years ago, we have much to be thankful for. Systemic change is essential, given the rapid decline of so many of our institutions in the thirty years before that. But in pursuing such change, let us also remember the dark night from which we have emerged, and the much better situation we are in now, as compared to four years ago.

http://www.liberalparty-srilanka.org/speeches/213-speech-of-prof-rajiva-wijesinha-during-the-adjournment-motion-on-the-rule-of-law-november-6th-2012.html

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