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These two incidents are just recent examples of the misuse of powers of criminal investigation and prosecution for which there are vast numbers of illustrations in recent decades. There have been recent revelations by the inspector general of police, for instance, of police, military men and deserters being involved in grave crimes, such as kidnapping for ransom, and this criminal behavior has become possible, among other things, due to a long period of abuse of the criminal investigation and prosecution functions.
The politicization of these basic legal institutions, which are supposed to uphold the rule of law, has created such arbitrariness in the country that conditions like those described by the celebrated novelist Alexander Solzhenitsyn in his book "The Gulag Archipelago" now exist in Sri Lanka. "The Gulag Archipelago" refers to the penal system rehabilitation centers located in the Solovetsky Islands of the former Soviet Union, in which the citizen was a plaything of unscrupulous security agencies of the state.
A former deputy minister of defense, Ranjan Wijeratne, stated in Parliament when massive disappearances were taking place in the South in the late 1980s that such disregard for people's lives and violation of their rights were illegal and that other means were needed. A similar sentiment has been expressed by some leaders of the present government.
Such abuse has taken two forms: (1) grave crimes are not investigated, and therefore, the perpetrators are not prosecuted; (2) investigations are hurriedly launched, and actions are hurriedly taken to prosecute or otherwise legally affect individuals who are known to be political opponents.
For example, a complaint of alleged corruption involving the purchase of two military aircraft was not investigated, and thus, no one was arrested and prosecuted. However, the complainant was charged, arrested and remanded for alleged misuse of an "official vehicle." Meanwhile, the Janatha Vimukthi Peramuna (People's Liberation Front), or JVP, has claimed that on the basis of the misuse of public property, half of the cabinet ministers should be serving jail terms, and according to other reports, 10 percent of the vehicles used by parliamentarians, both present and past, under various regimes are missing.
Consequently, when political opponents arbitrarily face penal action, the country's citizens begin to see the manipulation behind purported security measures. Moreover, all sense of the predictability of the law loses meaning, and people expect to be arbitrarily treated by the basic legal organs that are supposed to provide and uphold criminal justice.
There are other incidents that cause citizens to worry about the nature of these institutions. Can the state, for instance, authorize abductions -- as they have become common phenomena and there are revelations that the police and military officers are engaged in these acts? Added to these recent abductions is a tradition spanning several decades of disappearances in which commissions appointed by the government have identified officers of the state as taking part in them. Generally speaking, all of these state officers have enjoyed impunity. Therefore, Sri Lanka's citizens can be understandably confused about whether these are legitimate actions of the state.
The overall impact is that citizens can no longer predict what is possible within the law and what is not. The law may state that illegal arrests are wrong, but state officers may engage in abductions and suffer no consequence. The law may state that murder is wrong, but state officers may engage in causing disappearances. The law may state that extortion and demanding ransoms is illegal, but state officers may engage in these activities. The law may state that bribery is wrong, but state officers are frequently reported to be accepting bribes on a very large scale.
In this environment, the country of Sri Lanka itself is becoming something akin to a gulag archipelago. Some people may object to this description of the country on the basis of different political ideologies and the historical circumstances involved in this comparison. However, the very essence of the gulag archipelago is the condition of helplessness a citizen suffers when the state becomes an instrument that has turned hostile against him or her.
To judge from the mentalities that are developing among people living in all parts of the country, it is quite evident that the people's attitude about what the state is and what it does have changed dramatically, so much so that people have abandoned the expectation that state agencies will work within the rule of law.
When confronted with this new mindset among Sri Lankans, leaders of the present government only ask why such criticisms are not also directed against terrorists. The assumption is that we are no longer a state that respects the rule of law and we act arbitrarily in the same manner as the terrorists. The implication is that people should not expect anything more from the state than they might expect from the terrorists. This idea of explaining away the responsibilities of the state on the basis of comparing itself to an enemy is also part of the mentality of a gulag archipelago.
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(Basil Fernando is director of the Asian Human Rights Commission based in Hong Kong. He is a Sri Lankan lawyer who has also been a senior U.N. human rights officer in Cambodia. He has published several books and written extensively on human rights issues in Asia.)
