This dharmadvipa, the land of crime without punishment

Usvatte-aratchi-May 12, 2018, 6:34 pm 

The past twelve months and more have been momentous to those who, perhaps guileless, care about law and order, one part of which is that those who commit crimes, after due process in courts, must be punished as prescribed in the law. There was Xi Jinping in China who punished severely those found guilty of offences in the use of public funds. They were given due process, as prescribed in the laws of that country, though those laws are considered unsatisfactory by many. It is also alleged that Xi used these mechanisms to get rid of his powerful rivals.

More recently, courts in India punished a powerful former minister in Uttar Pradesh, Lalu Prasad Yadav for corrupt practices. He was sent to prison, for 12 years.Three weeks back, Nawaz Sharif, the powerful former Prime Minster of Pakistan from the rich Sindh province, was banished from standing for election to political office for the rest of his life. His crime had to do with the accumulation of wealth for which there was no reasonable explanation. The Prime Minister of Malaysia has been charged with the offence of money laundering. A former President of the Republic of Korea was found guilty according to law and duly punished. In Thailand, a former Prime Minister is before courts accused of several misdeeds, including abuse of public property.

Further away, Ignacio Lula da Silva, former two-term President of Brazil, was found guilty according to law and punished. There are cases against powerful politicians in several countries in Central and Latin America, including Peru. In Africa a highly respected leader of the struggle against apartheid in South Africa , Jacob Zuma resigned from the post of President of the Republic, under pressure from the Legislature. So did Robert Mugabe in Zimbabwe. In US, there are two investigations into the conduct of President Trump in office: one, by the Special Counsel Robert Mueller III and the second initiated by the Department of Justice after the dismissal of James Comeyfrom the office of Director of FBI.

A columnist in The Economist of April14, 2018 commented on the election of Trump as President: ‘It reflects the still-dumbfounding reality that one of the world’s oldest democracies elected a fully formed rascal to its highest office. Mr. Trump did not even try to hide his designs. He promised to run the country as he ran his family businesses, which would logically mean nepotistically, autocratically, with great regard for his personal interests and little for the rules. And so he has.’ Those features of a President’s conduct sound entirely familiar to us. For those in Sri Lanka planning to vote in 2019 and 2020, let them be forewarned that history shall not record that they elected a ‘fully formed rascal’ for high office in the oldest democracy in Asia. Rascals are lining up in cleverly disguising garb and sycophants are willing and ready with hosannas to them.

Amidst this whole plethora of instances of the supremacy of the law, in this thrice blessed dharmadvipa, it is adharma that reigns. Except in one recent instance, which has netted a high level bureaucrat and a private sector wealth owner, politicians who held the highest level positions and committed depraving crimes have been protected from punishment. Dharmadvipa indeed! It is not uncommon for criminals carrying machine guns, to travel to commit murder in luxury cars with the statement dhammo have rakkhati dhammachari (Those that live by the dhamma are protected by the dhamma.) pasted prominently on their cars. It helps to have a second string to one’s bow!

It is not uncommon in Sri Lanka for someone charged with criminal offenses to receive ‘blessings’ from high ranking bhikkhu. (This whole idea of blessing (ashirvada) by persons who are not priests is bogus and should be examined for legitimacy).We expect even trees to bless us! In an exceptional display, in 2017, one man lost his job as minister and the Prime Minister himself lost his much coveted Teflon cover against allegations of financial impropriety. Another implicated in the case is a fugitive from justice. This whole rigmarole of a Presidential Commission and Parliamentary Select Committees could have become wholly superfluous in 2015 itself, had the Supreme Court permitted a petition presented to it by three citizens to proceed.

In contrast with the experience in the lands of infidels, several dozen criminals who ruled the country previously strut on political platforms with heads held high for any cruising knight to lop it off, if he would dare. Over a long infernal ‘night of knives’, all tall and handsome knights turned into midgets and ugly knaves. We saw one man who imagined himself to be of knightly material, pull only the scabbard of Excalibur when he tried to pull it out from the rock. We have not seen either the pretentious knight or the scabbard ever since.

In place of the supremacy of the law, fear, power and corruption rules the behaviour of all in public life. You do not, out of fear for your life, complain to the police of a crime committed against you by anyone who exercises some power. We all were witness to the ignominy of a Principal of a school falling at the feet of a mostly illiterate Chief Minister of a Province and he is now the Minister of Education in that Province. His appointment to that position tells a lot about leadership in this society. With this sort of leadership there is reason why you would not bear witness to a crime. Your child must go to school, you and your spouse must venture out to work and your house must be left unguarded to the wrath of ruthless criminals who may be politicians or work for hire by powerful people, mostly politicians. It was reported today (April 20) that nobody appeared in court to identify a gang of hoodlums that assaulted a number of foreign young people in a bar in Mirissa. Those young people never may have justice meted out to them in this dharmadvipa because nobody would come out to identify the criminals. The police would often present a report to the magistrate with sufficient loopholes for the accused to wriggle out, if they paid off the officer adequately.

Files of powerful people accused of high crimes including murder are lost in the bureaucracy and these cases would never see light of day. Forensic evidence in the care of highly paid professionals are mislaid or lost to ensure that those powerful people charged with the commitment of murder will not be prosecuted. A man who was bold enough to appeal to courts that he was a prisoner in Welikada jail and was witness to the crimes of murdering 27 prisoners on November 9-11, 2012, who therefore were wards of government, has not had his appeal been promptly dealt with because the accused are too hot to handle.

One man is repeatedly prevented from being arrested by the police while another is incarcerated because his passport is with another court and cannot be brought to a particular court right away. Is inequity written into the rules of conduct of our courts? Instances pile upon one over the other of the planned denial of justice. In these circumstances, it was a miracle that the ‘bonds scam’ case was proceeded with such alacrity, for which all citizens must stand grateful. Lord Bingham’s (Lord Chief Justice of England and Wales) statement, in 2010, ‘The judges are not, of course, the only guardians of the rule of law, perhaps not even the most important’, applies in our circumstance with vehemence.

According to an official announcement, if I have got it right, there are 750,000 cases pending in courts. This figure does not seem unlikely in light of numbers put out by Shelani de Silva of Law and Society Trust that out of 7,802 rape and other grave sexual offences that came up for appeal between 2012 and 2016, no more than 156 were heard to closure, 7.646, a little more than one percent, accumulating in that total of 750,000. There are less than 200 judges on roll. If we take 200 for rough and easy calculation, each judge will have to decide, on average, 3,750 cases to simply work off the backlog. If each judge worked 50 weeks a year and took one week, on average, to decide on each case, each judge would need to work 75 years to clear this backlog. That is two times the working life of a normal judge, engaging all judges in the system. Now recall that some cases may go through the entire cycle of appeals. And soon you realize that the whole exercise is absurd in its practicality. One needs to think up a radically different but effective solution. Yet the Bar Association of Sri Lanka objects to the creation of more courts to hear some cases!

It takes 17 years, on average, to bring a case to closure after all appeals. The first appeal takes seven years to be heard. Recently, a High Court judge released from imprisonment a pair of senior bureaucrats when their counsel pleaded that their incarceration was for seven years and that their appeal to higher courts would take more time than that to be heard and that therefore it would be unjust to keep them in prison until after their appeals were heard to closure. Justice, indeed. The less sophisticated and the less moneyed prisoners, though in the same circumstances, would languish in jail simply because they lacked information and are poorer. What kind of justice is that?

Most people involved in the administration of justice in our country seem extra enthusiastic about obstructing justice in the present circumstances. If those alleged to have committed crimes were to regain control of government, then all pending judicial proceedings against them would cease. Those public servants whose reluctant responsibility it is to proceed now to take those accused to courts, find it in their interest to delay proceedings one way or another. They form a ‘deep government’ within the government and has its own agenda and priorities. (‘Deep state’ is a misnomer.) Doing so, they would save themselves a lot of trouble, should government change. Politicians now in government who may have things to hide have an interest in being kind to those now accused should there be a change of tables. Absent a system of inquiring magistrates as in statute law countries, unless the senior judiciary becomes aggressive as in India now, adharma or lawlessness will rule this country.

The foregoing appreciation of the situation on my part, makes unacceptable what university teachers of law and the Bar Association claim that we have a system of judicial administration adequate to meet the challenges before it. Numbers prove otherwise. Our institutions cannot withstand abuse of power and our organizations have no strength to stand against an onslaught by interested parties. President Trump would much like to dismiss the Special Prosecutor Robert Mueller III and disrupt the inquiry into his conduct by his own Department of Justice. Congress would not let him do either. Those who argue for more power to an Elected President do not realize the disaster that he/she could pose to the wellbeing of ordinary citizens. That the 19th Amendment to the Constitution removed the power of the President to dismiss Parliament is an object lesson in the value of separation of powers. I would go further and urge that Parliament run for a term specified in the constitution leaving no one with power to end its life. The law will specify when government holds elections to elect a new Parliament or a President. So must the period of office of the President of the Republic be fixed by law. Sumanadasas and Peirises will have to seek other gullible victims. Such provisions in the Constitution will end the shenanigans that we have seen under the 1978 Constitution.

There are institutions besides laws that govern peoples’ lives. Buddhists use two Pali words hiri and ottappa and in Sinhala hiri and otap. Hiri is remorse or guilt that one feels for having done something wrong. It is the pain you have when you face the mirror in the morning, after the night when you raped a helpless young woman. Ottappa is the shame that you have in facing others after having done something wrong. It is the pain you feel when your long standing friend crosses over to the other side of the street, the moment he notices you on the same side of the road as he. We seem to have lost all sense of hiri otap.

Let me quote for you a quatrain which I enjoy much:

‘Venurnanali karkatakascha rambha

Vinashakale phalmud bhavanthi,

Evang naranang mativi prakaram

Vinashakale viparita budhih.’

‘As in calamitous death throes, the bamboo, the crab and the banana plant bloom and bear fruit, so do men in their own destruction lose their mind.’

Let the old order die. Their day and destruction are done. The young will live and so their progeny and theirs. Let the young wrest control of organizations and re-fashion institutions to suit their minds, always aware that they threw away the old order because it was short sighted, ignorant, selfish, ugly and uncivilized.