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Justice, law, and order: Addressing trust deficit a long road ahead

By Asiri Fernando

The alleged actions of former State Minister of Prison Management and Prisoners’ Rehabilitation Lohan Ratwatte has once again focused the spotlight on justice, law, and order in Sri Lanka. Much has been said about the controversial incident which occurred when Sri Lanka was under the “microscope” of international scrutiny.

However, the alleged action of the State Minister is but one of many, and highlights the need to address enduring concerns regarding justice and law enforcement in the country.

Over the last decade, Sri Lanka struggled to achieve a smooth transition from a conflict-oriented posture to peacetime democracy. Ill-advised policies and short-term political ambitions have left the social fabric strained, with the resulting fault lines threatening further instability. Facing threats from extremism, an economic crisis, and a global pandemic, Sri Lanka needs to be resilient. The need to rebuild the public’s trust in state institutions, the Judiciary in particular, and law and order will be a vital factor to build resilience and move towards recovery.

In an interview with The Sunday Morning, Minister of Justice Ali Sabry discussed how the Government plans to address some of the long-standing concerns on justice, law, and order through a range of reforms.

Following are excerpts from the interview.

The public’s trust in judicial processes and law enforcement has eroded over the years. How do you plan to improve public confidence through reforms?

The efficacy and efficiency of the system in terms of time taken to resolve a dispute is, I think, at an all-time low. We have to concede that. In terms of time taken to enforce a contract, we are (ranked) around 164 out of 189 countries in the world. This is a complex situation; there is no quick fix. We need a holistic plan structured to achieve that. As such, we are trying to double the size of the Judiciary to make the hearing of cases quicker, by bringing in technology and changing archaic laws and procedural roadblocks.

For example, last week in Parliament, we introduced amendments to the Criminal Procedure Code which requires criminal cases to be heard on a day-to-day basis and concluded soon without the possibility of seeking postponement after postponement.

These measures will help to bring relief and build trust in the long run. However, it may take some time.

The arrest of more than a dozen Police Narcotic Bureau and Special Task Force (STF) officers on charges of being involved in drug trafficking last year highlighted long-standing issues with corruption and abuse of power within law enforcement agencies. Such arrests also raise questions on whether the agencies were compromised by organised criminal groups. In your opinion, what reforms are needed to improve integrity and professionalism of law enforcement personnel?

This is a serious concern. I think there are several areas we can look at. Most countries use technology to reduce corruption. So, the use of technology is one way, and we are trying to do that. Secondly, our intelligence network has to be strengthened, even within the ranks and cadre of the law enforcement authorities, so that any malpractice can be quickly identified and dealt with. We also understood that some of the key drug traffickers have been operating from within the prisons. So, we have moved to isolate some of them and block their phone communications.

We are also in the process of equipping some parts of the prisons with CCTV coverage, such as (the) Welikada and Anuradhapura (Prisons).

It is a complex task. When I met the Chief Justice, the Attorney General (AG), and the Inspector General of Police (IGP) some time back, I suggested that these cases, particularly the ones regarding the Narcotics Bureau officers and other law enforcement authorities, should be heard on a day-to-day basis by a trail-at-bar and concluded as soon as possible in order to send a message to society. With such measures, hopefully, we can minimise such issues.

There are continued allegations regarding custodial deaths and police brutality towards suspects, protestors, and detainees. How will reforms address these long-standing issues?

The Police have to take steps within their organisation to stop the abuse of power. However, we have brought in some changes already. A few months ago, I introduced a law that empowers the magistrate of the area to visit police stations and prison facilities, talk to the accused and detainees, and find out about their wellbeing, with the possibility of making unannounced visits. This will act as checks and balances, and I hope the magistrates will use it and check on the welfare of prisoners.

There is a move within the Police Department to use body cameras, like ones used overseas, when they go for search operations, raids, and arrests so that they will not be able to abuse their powers, and everything will be recorded.

Several steps are being taken, but challenges remain. There has to be a change in the culture amongst them too. They (law enforcement) have got used to a culture over a period of time. I think that needs to be looked at as part of long-term reforms.

Do you think there is a problem with a subculture of impunity within the law enforcement and corrections agencies? What needs to be done to change it and improve professionalism within the agencies?

Yes, we get complaints about professionalism and how the public is being treated by law enforcement. So, there needs to be continuous improvement in training regarding that. Most of those concerns need to be addressed within the rank and file of the law enforcement agencies, and we need to work towards that.

In a post-war country, while maintaining national security, do you think it is time to revisit the current police powers of arrest and bring them in line with international best practices?

That is not an area we have looked at specifically. Basically, the arrests are made according to the law. There are only a few instances where they can arrest without a warrant. The arrest powers are needed, because sometimes, by the time you go to a magistrate and come with a warrant, the suspects can evade (arrest) and go into hiding. You have to be practical. But the safeguards are there. Within 24 hours, they (suspects) have to be produced before the magistrate; otherwise, they need to get a detention order, which has to be reported.

Going towards international best practices is good. However, we need to have a balance between our domestic needs and threats that are there. Unfortunately, even though the war is over, remnants of the past exist with unnecessary interference from some in the Diaspora. We also saw the unfortunate extremist attacks on Easter Sunday (2019). So, there is a need to carefully monitor the local threats. We can’t be weakening the law enforcement authority. But there has to be a balance; there has to be discipline within. Professional conduct has to be improved by the Police in order to deal with threats in a more acceptable way.

Prisoner rights and safety has once again entered the spotlight due to the alleged actions of a government state minister. How will reforms help uphold state obligations to ensure the rights, wellbeing, and safety of those incarcerated?

Yes, there is much in terms of prison reforms to be done. I believe the previous commissioners of the Human Rights Commission of Sri Lanka (HRCSL) did a good study on that. I have that report.

We want good prison administration and want to move towards using it as a correctional facility. At any given time, more than 50% of remand prisoners and those serving short sentences are those linked to drug abuse. We need to categorise them and separate the narcotic traffickers and major dealers who need to be dealt with separately from the abusers, as they are a threat to the community.

A vast majority of remandees are those addicted to drugs, so there is no point in punishing them. You put them behind bars, and they come back to society and get addicted again. It is a vicious cycle, and we need to break it. Let me be clear – these are not the major drug dealers or traffickers; they are those arrested with the possession of three or four grammes of narcotics for personal use. What we are looking to do is to rehabilitate them. We are in the process of building a rehabilitation centre for them in the South. The President recently visited a site in Horana where a state-of-the-art prison complex is to be built on a 200-acre plot, which will address the prison overcrowding issue. Once completed, it will become a proper rehabilitation centre rather than a facility to detain.

Are there plans to introduce new legislation regarding de-radicalisation? Is the Government consulting community and religious leaders or local and foreign experts on establishing a de-radicalisation programme?

That is an important question. De-radicalisation is being handled by the Ministry of Defence. There is a necessity to expedite the process and have a proper programme for de-radicalisation. I hope it will take place in the near future.

The European Union (EU) and the United Nations (UN) called for the repeal of the Prevention of Terrorism Act (PTA). The legislation has long been criticised by many human rights groups. Is there a timeline for the PTA reforms process?

There was a joint cabinet paper presented by the Ministry of Foreign Affairs, the Ministry of Defence, and the Ministry of Justice on this matter a few months ago. We gave three months’ time for the Expert Committee to study it and submit a report to us. Hopefully, the report will be delivered next month.

Allegations have been made that the International Covenant on Civil and Political Rights (ICCPR) legislation is abused by law enforcement agencies. What are the guidelines issued to the Police regarding the use of this legislation, and is it time to review them?

I don’t know if there were guidelines issued for that. We must look into it.

A new constitution is being drafted. From the Justice Ministry’s point of view, what has been done to ensure broad stakeholder consultation on it?

We have appointed a versatile committee comprising all ethnicities; it was a diverse group of people with a gender balance. It included lawyers, jurists, intellectuals, and others. They had continuous public engagements. The draft is in the last stages and at the Legal Draftsman’s Department. Once it is ready, it will be discussed by the politicians.

In your opinion, what can be done through a new constitution to improve the independence of key public institutions in Sri Lanka?

Where we are now is the post-18th Amendment situation. There was debate that the 19th Amendment went a bit too far and that it was difficult to work with too many controls. As a result, it was difficult to reach the objectives of any institution.

There is a thinking pattern that there has to be a balance between these two, so that some sort of control is there in overseeing suggestions at the table for the President to decide what to pick.

Let’s see how it evolves through the constitution-making process.

Will the new constitution have an impact on land rights, particularly of the minority community?

I don’t know if there is a particular way of looking at land rights for a minority or majority community. There has to be a transparent, open, and reasonable process of allocation of all resources of the government amongst the people, irrespective of their race, religion, caste, or even the region they are from.