By Kishali Pinto Jayawardene (Sunday Times)
The assertion that Sri Lanka’s criminal justice system is so weak in capacity that justice is well nigh impossible is one of the most dangerously misleading misconceptions that we constantly hear.
No simplistic reasons for failures in justice
When acquittals are handed down as illustrated most recently in the jury trial relating to the killing of parliamentarian N. Raviraj or when investigations drag on tortuously for several years as we see in the rape and murder of schoolgirl Vidya Sivaloganthan, the reasons behind these failures of justice are complex and multilayered.
Certainly the fact remains that the capacity of Sri Lanka’s law investigation machinery is not the sole factor in issue. Instead, we see other examples where, driven by strong political will, the investigations are completed in record time and trial processes in court are expedited with equal promptness.
A most recent example bears out this premise very well. Late last month, the Avissawella High Court handed down the death sentence to eighteen accused including former Chairman of the Deraniyagala Pradeshiya Sabha in regard to the gruesome murder of planter Nihal Perera, superintendent of Noori Tea Estate in Basnagala, three years ago.
The ‘uncleared areas’ in the South
This was no ordinary murder. The murder exposed a dark and brutal nexus between the impunity with which local level politicians with direct connections to the Rajapaksa administration at the time held sway over the people in their area. In this case, Noori Estate was controlled by members of a lawless political gang (many of them related to each other) operating under the leadership of the former Pradeshiya Sabha chairman. The gang members engaged in systematic terror involving slavery, rape, gang rape, and extortion of villagers, including the operation of ‘rape centres’ where women were kept imprisoned to be used at will.
Indeed, the Chief Priest of Noori, Deraniyagala described the terrorizing of his villagers from as far back as 2008 at the hands of local politicians benefitting from high political patronage, as living in an area that was ‘un-cleared’. In other words, the analogy drawn was in regard to living in a land that was ruled by terrorism. The murdered estate superintendant had incurred the wrath of the unlawful gangs as he refused to give in to their demands.
The Noori estate terrors were symptomatic of the times. During that period, Sri Lanka became a vast criminal enterprise, run by thuggish politicians where courts of law had little voice and law enforcers became worse than the law breakers. The Deraniyagala atrocities took place over several years with terrible impunity and in the face of silence on the part of all parliamentarians representing the Kegalle District. Then Sabaragamuwa Chief Minister rejected allegations that he had provided protection for sponsoring and protecting former Pradeshiya Sabha Chairman Anil Champika Wijesinghe who was convicted in the High Court last month.
Classic example of a good trial
Political and police complicity in the reign of terror which prevailed in Noori estate at the time was well established. The area police had been complicit in aiding the local thugs to carry on their reign of terror at the time. Disciplinary inquiries were initiated against seven policemen, including the OIC (Crimes) of the Deraniyagala Police. The policemen were later transferred. But no further punishment followed.
In contrast, the prosecution and trial of the accused in the murder of the estate superintendant is a classic example of how a trial should proceed. The investigations took place efficaciously and with deadly intent. Special law enforcement teams of the Criminal Investigation Department (CID) including senior officers with demonstrated competency were sent to the estate to commence the investigations. Villagers were gently persuaded to shake off the fear which had rendered them mute all these years. They were assured that no harm would come to them if they testify. Protection was assured.
Efforts to intimidate the CID were not successful. The efforts bore spectacular fruit within a short time with a formidable case being built as to the direct culpability of the accused. The murder had been carefully planned as he conducted his regular estate inspection in the wake of his having clashed with the criminal gang earlier. In court, the trial process continued with speed despite a record number of witnesses and concluded within a period of almost two years. It was an excellent example that Sri Lanka’s criminal justice systems works when it is allowed to operate without political pressure.
Same logic needs to be followed
Were the villagers of Deraniyagala able to draw public attention to their plight because they are members of the majority Sinhalese community? Should not such stern political will in brigning about justice be demonstrated when villagers of Tamil communities have been terrorized? The same logic indeed applies to the criminal investigations of the murdered ruggerite Wasim Thajudeen and journalists Lasantha Wickremetunge and Pradeep Ekneligoda.
Then again, what of the other longstanding instances of extrajudicial executions such as the killings of the students in Trincomalee and the aid workers in Mutur almost ten years ago? The easy explanation of government authorities that they cannot proceed as the eye witnesses have all fled abroad and that their testimony is essential is quite unacceptable. Similar to the manner in which the CID officers proceeded in the Noori estate case, confidence must be inculcated in the witnesses for them to be able to testify with some guarantee that reprisals will not ensue against their family members in Sri Lanka. In the absence of such proactive measures, a mere call to testify will not do.
Criminals waiting in the shadows
In sum, the conviction in the murder of the Noori estate superintendant Nihal Perera, one rare Sri Lankan of principle who refused to bend to political terror despite his failing years and paid for that obstinacy with his life, too will be of little use if it stands by itself.
A few officers or local level politicians may be punished by court. But this will have little impact on the overall structure of the vast criminal enterprises which came into its own during the Rajapaksa Presidency and which still lies in abeyance, waiting for a chance to emerge from the shadows into the sunlight again.
This is a warning that is evident to all but the most sublimely complacent.