Monday, January 30, 2017

Basil Fernando's Deterioration of the Legal Intellect in Sri Lanka Reviewed by Hemantha Situge


BOOK REVIEW

Title                             :           Deterioration of the Legal Intellect in Sri Lanka
Author                         :           Basil Fernando
Publishers                   :           Kalyana Mitra Publishers
                                                Legal Literature Books, Colombo-08.
Reviewed by               :           Hemantha Situge
                                                e-mail:hsituge@gmail.com
                                                blog: Hemantha Situge@blogspot.com

The book entitled : “Deterioration of the Legal Intellect in Sri Lanka” authored  by Basil  Fernando  that indefatigable internationally famed, Sri Lankan human rights activist, is published by Kalyana Mithra  Publishers  - Legal Literature Books YMBA Colombo 8 and was released recently . The book contains a collection of eleven essays that were appeared in the Asian Human Rights Commission network, counter current.org, Colombo Telegraph and the Sri Lanka Guardian in May and June 2015.

The book is dedicated : “To Gerald Perera a torture victim who was later assassinated (2004) to  prevent him from giving evidence before the High Court against the police, the perpetrators, cases against whom are still pending courts’.

[This cause célèbre case is a reported judgment found in the 2003(1) Sri Lanka Law Reports (SLR) 317 ] thereafter, ‘to Rita a young rape victim whose case is pending after 14 years to day … and also to Premalal de Silva and his father and mother who were all associated as revenge for making a complaint against some police officers … And, for thousands of others who continue to suffer due to the defects of our justice institutions’. Indeed a heart rending dedication for all those who yearn for justice and suffer in prolong silence.

The introduction written by Basil Fernando states that: “The theme common to the articles is the crisis of law in Sri Lanka due to 40 years of assault by several regimes that pursued an authoritarian agenda. With the electoral change on 8th January 2015, the challenge now is how to undo the damage suffered by the legal and judicial system. This requires a sound understanding of how deep is this damage and what are the basic changes that must  be undertaken. These short pieces are an attempt to answer both of these issues.

For an outsider to Sri Lanka, the events discussed in these essays may be disturbing. However, to any adult Sri Lankan, they may even sound like understatements. I hope the essays may give rise to a public discussion on these issues. Every Sri Lankan would have lot to add to this discussion”.

In the foreword written by Dr.Jayantha Almeida Gunaratne President’s Counsel, Visiting Justice of Appeal of the Republic of Fiji aptly states that: “I would have liked of Mr.Fernando has suggested a transparent mechanism by which ‘the way investigations and prosecution of murder is dealt with’ could be monitored in order to “undo the damage suffered by the legal and judicial system.”

The book is an eye – opener which deals with not only some timely incidents but a clamour for the justice that never saw the light of the day. The first essay has dealt with: “Quelling mass protests with extra- judicial killings” where the discovery of your members of one from Wennappuwa was found at the eve of the new  year January 2015. Basil Fernando states that: “In tracing the rapid deterioration of the legal intellect in Sri Lanka, the extra judicial killings committed by the State should be scrutinized as one of the most significant  factors of such deterioration”. The second deals with a triple murder where father, mother and the son was killed in retaliation for filing of a fundamental rights petition against five police officers”. This case is a reported case found in the 1991(2)  Sri Lanka Law Reports 307 . Basil Fernando states that: “To anyone who is left with an iota of legal sensitivity, this triple  murder of a father, a mother and a son carried out solely with the view of subverting the law, should become a challenge. If there is a will, even now, it is not too late to investigate this ugly and horrible affair”. The third article has dealt with an incident of selling of a child in April 2015 from Ambathenna, Katugastota where he demands for the basic capacity for child care. The fourth article contains a pronouncement made by the UNHCR Committee on 1st April 2015 on a custodial death that has taken place on 26th July 2003 at the Moragahahena police. viz one Sunil Hemachandra.  Basil Fernando also states that: “What is also unique in this case, is that UNHCR has made observations regarding failures  of the Supreme court of Sri Lanka to call for a fresh  inquiry, whereby the Court have intervened to defeat the police  scheme to deny justice by subverting inquires into a custodial death”. In the fifth article Basil  Fernando criticizes the Prime Minister Ranil Wickramasinghe’s ITN interview done  on 23rd April 2015 where he agitates that: “……… to place before the nation a more comprehensive  response, as to how the prime and the government envisions carrying out his duty, to inculcate an attitudinal  change into the armed forces and the police where they would observe the  normal decencies that they are expected to observe is relation to persons they have taken into these custody”. The sixth article of the book has dealt with Patini Razeek’s murder a disappearance that took place on 11th February 2010 which is also highlighted as a disturbing allegation in the LLRC Report. Thus Basil Fernando states that: “The failure to prosecute this case therefore is not due to absence of evidence it suggests a deliberate scheme for preventing a due prosecution. Such a scheme for prosecuting criminals itself is a horrendous crime. In the seventh and ninth articles he has encompasses: “Justice delayed is justice denied” where the seventh deals with a 18 years old whose case is still pending in Sri Lankan Court of Law, the ninth article he has dealt with a rape   victim of a in Nuwara Eliya High Court. In the eight article he deals with a rape murder victim Vidya in Jaffna which has caused a cause célèbre.

Basil Fernando sets out an example from Hong Kong in the final chapter where he has been living for the past 25 years. Fernando does not advocate the “Hong Kong model” that could be monitored in order to “undo the damage suffered by the legal and “judicial system” of Sri Lanka”. However he is quite optimistic not be a day dreamer or to be in a State  of  Utopia but on “the good they can do to the society” through  the action of pressure of groups when where the need  arose to put the State in the right direction.

The book contains an appreciation from K.G.Sankarapillai. Is he another victim? Thus: “One of the most significant analysis of the new Sri Lankan sad waves. An in-depth study of violence, brutality, and shocking human condition in a modern democracy. A brand new narrative to  be told to the whole world. My salute!”  

May the clarion call uttered  by Basil Fernando is heeded in the interest of justice, as the law enforcement authorities would not turn a blind eye for the sordid crimes that is committed by the perpetrators. Basil Fernando grave concerns on human rights records could be summed up in one word that is Appalling!!   Thus O tempora! O mores!  What times! What practices! This reviewer fervently believes that Basil Fernando’s book merits serious  reading and incisive reflection for the law enforcement authorities in our country to be awake from the deep slumber. Let us cry a halt in the name of humanity for these mayhem and waves of crime! This reviewer can only conclude this review by the concluding lines of his introduction. Thus: “we can ignore these fundamental issues only at the cost of further peril.”



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