In my book on Political Principles and their Practice in Sri Lanka, which Cambridge University Press in Delhi published a decade or so back, I wrote that ‘Undoubtedly, the most important function of a government is to ensure the security of its people.’ People needed to ensure their safety from external threats, and they also needed security from others within the community. For the latter they needed laws to govern relations internally, with mechanisms to defend against attacks from outside – though initially these were not subject to law.
Among the most essential functions of government then are security (external and internal) and justice. So in many countries amongst the most important members of the cabinet are the minister of defence and the minister of justice. The former looks after the armed forces and sometimes the police as well, although in some countries there is a separate Ministry for this purpose.
The Ministry of Justice regulates the courts and ensures that those who break the law are brought before the law. In certain exceptional cases, as in the United States, where the doctrine of Separation of Powers is implemented thoroughly, the courts are independent of the cabinet and come under a chief justice. However, there too, there is an attorney general in the cabinet who has to ensure that the laws are implemented and those suspected of criminal acts prosecuted in the courts.
Sri Lanka has recently been bedeviled by controversy about what are claimed to be trumped up cases. The Prime Minister set up what is termed a Financial Crimes Investigation Department which seems to function directly under him. Claims are made that a body has been exhumed simply to provide propaganda material against the opposition.
But this is nothing new. Fifteen years ago, similar allegations were made with regard to the inquiry promoted by the then President with regard to Batalanda. A newspaper sympathetic to the UNP noted shortly before the 2000 General Election that ‘The ‘arrest’ of Peiris will surely be a prelude to a major onslaught on Ranil Wickremesinghe linking him to the alleged atrocities committed at the so-called torture chamber in Batalanda..
But even that newspaper referred to previous persecution of the SLFP in the guise of justice in noting that President Kumaratunga ‘was witness to JRJ stripping her mother of her civic rights over some alleged land transaction and then saw the same JRJ accuse her husband of being a “Naxalite” and then having him imprisoned’.
All this suggests that in Sri Lanka the internal security apparatus has often been used for what seem blatant political purposes. This is not acceptable, and we should be thinking of measures to entrench protection against such abuse. This will not be easy but, as I told Minister Karu Jayasuriya who is supposed to be Minister of Democratic Governance, it is no excuse to say that it will be difficult to change the political culture of the country. The government elected in January 2015 had a mandate to move on such matters, and there was no excuse not to try.
One obvious mechanism is the one Sri Lanka had initially, which was to try to ensure that the Minister of Justice was not a politician. The Soulbury Constitution specified that two Ministers, including the Minister of Justice, should be from the Senate. This provision is not fool proof, but certainly in many instances Sri Lanka had Ministers of Justice – such as Sir Lalitha Rajapaksa and M W H de Silva – who seemed to be above party politics.
Given what seems serial abuse too of the Ministries responsible for the police, it would make sense to have a similar mechanism for a Ministry of, not Law and Order, but Law and Human Rights. I welcomed the decision of the last government to divide up Defence, but I thought the title of the new Ministry that was created implied that Law was about holding people in check, whereas it should be about expanding their freedoms. Now the term is simply ‘Public Order’ (to which Christian Religious Affairs has been added for good measure) but I would prefer assertion of a Rights based approach to Law.
Of course simply appointing someone who is not a politician to a Senate or National List, and then making them Minister of Justice or of Law (and Rights) will not ensure objectivity. Such mechanisms have to be combined with stringent criteria for such appointments (to the National List and then even stronger ones for such Ministerial positions). It might also make sense to have a proviso that anyone appointed to such Ministries should only serve one term. There will then be no temptation to serve a political master or agenda.
Such a system will also help to solve the problem of what should be done with regard to provincial police services. According to the constitution, policing is a devolved subject, but this has not been implemented because of worries about national security. These worries cannot be dismissed, but we should also realize that most policing is about day to day concerns. For these to be swiftly addressed, the police service must understand local priorities. In recent years there were efforts to develop community policing, but this must be done more systematically, with provision for coordination between the police and government departments dealing with subjects as to which problems arise – for instance land disputes, or issues concerning women and children.
If the Minister in charge of the subject of policing is above politics, he will be better able to coordinate matters with Provincial Ministries. Given the principle of removing policing from politics, it would not be appropriate for any Chief Minister to be in charge of the police either. Instead administration could be entrusted to a Secretary working direct with the Governor – who should also be an apolitical figure who is required to work in close consultation with both the Chief Minister and, on this subject, the apolitical Minister in charge of policing and Rights.
Such a system may sound complicated, but clearly we need to set up systems that will avoid the abuses that seem to be rampant at present. It is no excuse to say that Ranil Wickremesnghe suffered similar persecution in President Kumaratunga’s time, since she in turn could point to what was done to her mother and her husband. Thankfully we have not since then had the exclusion from political activity that J R imposed on Mrs Bandaranaike by taking away her Civic Rights and on Vijaya Kumaratunga by jailing him during the Referendum campaign. But we must look to develop mechanisms to ensure that history does not repeat itself in any form or other.