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Leo Tolstoy once wrote that the art of his time in Europe was counterfeit. In counterfeit art, the artist believes himself to be creating a work of art but is in fact only creating impressions of art. These impressions are derived from an understanding of some external qualities of art, which the artist tries to recreate. The work produced in this manner appears to have the external characteristics of genuine art. By imitation, artwork was mass-produced to suit the appetites of people willing to pay for it.
The analogy is relevant for the protection and the promotion of human rights. Do activities really address the problems towards which they are directed? Do they really go into the deeper qualities or are they merely restricted to the superficialities? This depends upon the extent to which the real problems are addressed through mature use of judgment. It depends on the extent to which the solutions are real ones, not mere imitations of other works.
In counterfeit human rights work the actor begins on the basis of some training or some understanding gained from observation or reading on the general nature of some problems and assumes that there is no need at all to develop specific knowledge about the specific problems that they may encounter in real life, in the particular circumstances in which they have to work.
It is possible for someone to gain some knowledge of what other people have done to resolve some problems without understanding the particular reasons as to why those things were done in those other circumstances. The person might get some impressions about those activities and then try to replicate them. Externally, the replicated activities will have some of the qualities of the original. They may have the appearance of genuine human rights efforts, but will in fact be mere counterfeits.
In a particular country, disappearances, extrajudicial killings, torture, illegal arrest and detention may have taken place on a large scale. Well-intentioned and highly motivated citizens may demand that impartial and competent bodies investigate and prosecute perpetrators. If these demands are made within a country where criminal justice institutions genuinely exist, then there will be results sooner or later. But if these institutions do not exist at all or are completely dysfunctional, however long demands for justice are made nothing will happen, because there are no institutional possibilities. Even with regime change, institutional capacity will not be automatic.
Under such circumstances, the honest citizen who engages in work with the best of intentions can make demands for many years but not attain results. The citizen may think that he or she has done as much as possible, on the basis of impressions gained from others who have dealt with similar problems in other circumstances. Both in terms of attempts and in terms of failure, the citizen¡¦s honest activity remains a mere imitation.
Where institutional impediments to justice exist, it is the task of anyone who desires justice to struggle for the creation or improvements to its institutions. Particular methods and strategies need to be developed with comprehensive knowledge of the local context. Lessons learned or impressions gathered from others can be useful, but are no substitute for knowledge of the actual circumstances.
For some years, the Asian Legal Resource Centre (ALRC) and its sister organisation the Asian Human Rights Commission (AHRC) have through article 2 and other publications attempted to bring this point home very firmly with regards to the human rights situation in Sri Lanka. Just a few of the major reports and other publications that it has produced towards this end include: Sri Lanka: Disappearances and the collapse of the police system, AHRC, 1999; "Torture committed by the police in Sri Lanka", article 2, vol. 1, no. 4, August 2002; "Endemic torture and the collapse of policing in Sri Lanka", article 2, vol. 3, no. 1, February 2004; An exceptional collapse of the rule of law, AHRC, 2004; "UN Human Rights Committee Decisions on Communications from Sri Lanka", article 2, vol. 4, no. 4, August 2005; An x-ray of the Sri Lankan policing system & torture of the poor, Basil Fernando & Shyamali Puvimanasinghe (eds), AHRC, 2005; The other Lanka, by Meryam Dabhoiwala & Rob Hanlon (eds), AHRC, 2006; Sri Lanka¡¦s dysfunctional criminal justice system, by Jasmine Joseph (ed.), AHRC, 2007; Conversations in a failing state, by Patrick Lawrence, AHRC, 2008; Recovering the authority of public institutions, by Basil Fernando (ed.), AHRC, 2009; and, A baseline study of torture in Sri Lanka, by Basil Fernando & Sanjeewa R. Weerawickrame, AHRC, 2009. Most of these are available online at the article 2 website (www.article2.org) or the AHRC bookstore (http://www.ahrchk.net/pub/mainfile.php/books/).
From these publications and the work that it has conducted with partners in the country over the last 15 years, the centre has concluded that what exists in Sri Lanka today is a situation of abysmal lawlessness, resulting in the zero status of citizens. The word ¡§abysmal¡¨ is here used in its ordinary meaning to mean limitless, bottomless, immeasurably bad and wretched to the point of despair. Lawlessness of this sort differs from simple illegality or disregard for law, which to differing degrees can happen anywhere. Lawlessness is abysmal when law ceases to be a reference. What would normally be crime ceases to be thought of crime and lawlessness becomes routine. This kind of abysmal lawlessness manifests itself in ¡§arrests¡¨, ¡§detentions¡¨, and ¡§trials¡¨ that require no legal justification.
Under these circumstances, the idea of legal remedy or redress also ceases to have any meaning. All legal systems are built around the idea of legal redress. Laws and procedures are meant to make redress possible, to one degree or another. Abysmal lawlessness implies a complete loss of the linkage between redress and whatever that may be called law.
The situation of abysmal lawlessness will not be changed through the victory over the Liberation Tigers of Tamil Eelam (LTTE) that the military finally achieved this year. The suppressing of violence does not in itself guarantee that human rights will be better protected. In fact, the military victory can easily be utilized to further strengthen authoritarianism and to suppress democracy and the rule of law even more.
With this perspective, this edition of article 2, ¡§An essay on abysmal lawlessness and the zero status of Sri Lankans¡¨ (vol. 8, no. 4, December 2009), is organised according to the following themes:
1. The lost meaning of legality: how the notion of legality itself has been defeated, accompanying the collapse of institutions for justice and leading to the zero status of citizens to which the title alludes; the loss is associated with the suspending of criminal procedure law through antiterrorism and emergency laws.
2. The predominance of the security apparatus: with the decades of conflict and final victory over armed groups in the country, the security apparatus is now both the paramount and most comprehensive agency for political and social control in Sri Lanka; it is unbound from conventional rules that once at least delimited its sphere of activity and extent of its authority thanks to the use of the emergency and antiterrorism laws; it can act with unlimited secrecy and without challenge, on the pretext of national security.
3. The disappearance of truth through propaganda: with the first two elements of the state in Sri Lanka, the government propaganda machinery is no longer bound by any rules of truth or falsehood; even the distinction between the two is completely lost.
4. The superman controller: a constitutional and political arrangement that allows a single person to manipulate the three elements above as he or she wishes; the superman controller was created through the political and legal vacuum of the 1978 Constitution, in which the rule of law could not survive, but has over time accumulated even greater powers through the combination and manipulation of the three elements.
5. Destroyed public institutions: the institutions for the administration of justice are completely destroyed through the combination of the four elements; this is the feature of life in Sri Lanka today on which a great deal of the earlier work of the ALRC has turned, so as to document and demonstrate this fact and in order to arrive at the understanding of the present situation in terms of the four elements; there is nothing sacrosanct or predetermined about any institutional practices now, and the citizen who goes before public institutions knows not what to expect.
6. The zero status of citizens: Sri Lanka¡¦s citizenry, while believing that nothing has significantly changed, is doomed by the four elements and the consequences of its destroyed institutions; due to conflict on the island, at present the hundreds of thousands of persons detained in camps outside the framework of law and without legal status are suffering the greatest consequences of this zero status, but in fact it is a feature of the situation in the country that is common to all citizens to one degree or another.
The material used for this essay has been variously drawn and adapted from the ALRC¡¦s and AHRC¡¦s statements and other appeals, articles by the organisations¡¦ director, Basil Fernando, on online websites, including the Sri Lanka Guardian and Ground Views, and some outside sources, which are cited in the text.
Posted on 2009-11-24
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