Wednesday, December 7, 2011

The Next War in Sri Lanka: Law, Order, Justice and Law Enforcement

By Sanjeewa Karunaratne

Law, order, justice and law enforcement are pillars of a strong society. If they break, the fabric of the society shatters, resulting immense sufferings to its members. Recently, two incidents took place in two different countries across the globe—one is trying to be a developed nation; one is already a developed nation. These two incidents showcase how this basic norm of the society operates in these two countries.

In 2002, Mike McQueary, a graduate assistant in Penn State, USA, saw its assistant coach for 30 years, Jerry Sandusky sodomizing a 11-year-old boy in a shower in a campus locker room. He immediately reported the incident to Penn State’s legendary coach, Joe Paterno who reported it to its athletic director. The matter ultimately reached Penn State’s vice president and president who decided to put it to rest.
In November 2011, a grand jury charged Jerry Sandusky for sexually abusing 8 young boys over a period of 15 years; and he was arrested. It also charged Penn State’s athletic director and vice president for failure to report the 2002 incident. They were also arrested. Based on this incident, Penn State fired its head coach for 46 years, Joe Paterno; its president for 16 years, Graham Spanier, vice president and athletic director.

Joe Paterno, the head coach of Penn State with the highest number of wins (409) in college football history, is one of the best and most powerful coaches in USA. He is the most influential figure in Penn State for the last four decades. One can hardly find a single building or a program on campus that did not bear his name. Jerry Sandusky, his assistant coach for 30 years and his heir apparent, who is also the founder of “The Second Mile”—a charity designed to help disadvantaged kids—were the uncrowned kings in Penn State. Their football program brought over 70 million dollars annually to the university. Nevertheless, their money, power and stature did not deter the university to take the right step.

In sharp contrast, in Sri Lanka, a member of parliament who was involved and engaged in a shooting incident, where his bodyguards or he killed a presidential advisor and four others, was permitted to leave the country.

In my brief legal career in Sri Lanka, I particularly remember one case where a person was involved in a fist fight, resulting another person being hit in the face several times and losing four teeth. The victim was immediately admitted to the government hospital in Homagama. The suspect was promptly arrested at his home and was charged with committing serious injury. The police and state attorney opposed bailing out the suspect as long as the victim was in the hospital with injuries and the magistrate agreed. That is the law for the ordinary citizens in Sri Lanka.
On the other hand, MP Duminda Silva, according to eye witness accounts, who was at the crime scene; exchanged heated arguments with the victim; hit him and gave verbal orders; and whose bodyguards were charged for killing the presidential advisor was permitted, not only to leave the hospital but also to leave the country.
The government says, it is because no charges were filed against him—a very convenient loophole.

In a capital murder case like this, the police investigates and provides the list of suspects and evidence against them to the Attorney General who files the charges. First, the suspect must be produced before a magistrate who would allow or deny bail. If the suspect was admitted to a hospital, the magistrate visits the hospital. That procedure had not been taken place in this case because, simply, MP Silva was not a suspect.

Interestingly, the Assistant Superintendent of Policy (ASP) who was in-charge of the investigation has been transferred to another police station and was relieved of the investigation responsibilities. The entire management at the Sri Jayawardenapura General Hospital, where MP Silva was treated, had been replaced immediately after MP Silva was admitted there. The doctors at the hospital neither allowed police to record a statement from MP Silva nor allowed them to observe him, citing his unstable condition. Did the doctors, at least, take steps to obtain tissue samples from MP Silva’s hand to test for gunpowder residue which is a critical piece of evidence in a shooting case?

After the war with the LTTE was successfully over, it is imperative for the Government of Sri Lanka to assure its citizenry and the international community that law, order, justice and law enforcement is maintained. The ramifications of failure to do so are grave. Frustrated citizens would take law into their hands (e.g., burning vehicles after a fatal accident); incite civil unrest (e.g., JVP, LTTE) which may lead to civil uprisings and wars. It would hinder reconciliation efforts; cultivate insecurity and anxiety among citizens, especially minorities; tarnish human rights record of the country and fuel war crimes investigations. It would deter investors and foreign governments from conducting business in Sri Lanka. It may also negatively impact Sri Lanka’s efforts to stimulate economic growth (e.g., failure to host 2018 Common Wealth Games.)

The Penn State incident is a classic example of what it takes to be a developed nation. Until and unless Sri Lanka comes closer to that level, real progress would evade it.


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