They bring the realisation that history does the rounds through time and space! And that some fundamental aspects of humanlife and nature do not change. Especially the obsession with power, the lulling of conscience, the construction of state machinery, the destruction of communities, the betrayal of trust, the twisting of words…

He could almost have written these for our times!

“Though it (Sri Lanka) does not belong only to us, it is the only place that really belongs to us and in the final analysis, the only place we really belong to. It is not only ours, but it is ours. We must protect it and ourselves, for no one else will.”

The duplicity is stunning. He really does believe that the Sinhalese bear the sole burden of protecting the country, because, in his words “no one else” (i.e- Tamils, Muslims and other ethnic minorities) will. If that’s not racist, someone tell me what is.

Disappointing…really.

what a sad come back from Dayan. He cannot deal with the critic so he relies on personal attacks on the writer. Looks like he is still writing his CV …

Well done! Excellent response to Dayan. Thank you! Of course you know that Dayan, in his Leftist past, used to be proud ‘Stalinist’ and openly defended the Gulags. When he in Premadasa’s favour, he once wrote a centre page article in the Daily News all about why Stalin’s repression was fully justified.

The concept of the gulag, first used by Aleksandr Solzhenisyn it in the Gulag Archipelago 1918 – 1956, has come to mean a particular system of repression imposed on a whole country, and which has some definite characteristics.

In an earlier article, I described these characteristics as:

The loss of the meaning of legality within a particular country;
A predominant position played by the security apparatus;
The emergence of a propaganda apparatus that is not bound by any rules relating to truth or falsehood;
The emergence of a superman controller who manipulates all the three elements mentioned above in any way that he wishes;
A doomed citizenry reduced to zero status;

The position on which this article is based is that Sri Lanka is now such a gulag. All the above mentioned characteristics are now quite prominently visible within Sri Lanka. However, a phantom limb disorder still continues to exist. The people wish to believe that the old legal system and social system are still intact despite some unhappy new aspects that cannot be denied.

The loss of the meaning of what is legality and illegality

A usual question asked in any society is whether somebody can do this or that. Normally when such a question is asked, it is to inquire whether this or that can be done legally. For example, can somebody be shot after arrest? The question asks whether any person can be legally authorised to do such an act. Hundreds of such questions may be asked each day on various other subjects. Let us narrate some frequently asked questions.

Can somebody be assassinated merely because he is a journalist? Can somebody be put under detention orders because he wrote one or two passages that someone in power might not like, or because he carried some pictures of atrocities to be shown at a meeting? Can a ballot box be filled with votes that are not placed in it by people in the normal process of voting? Can the official website of a ministry label some people as traitors because they may have done something that the particular ministry does not like? Can somebody be arrested on the basis of a fictitious charge? Can a government ministry refuse the auditors permission to look into their accounts? Can a report of a parliamentary committee on corruption and its recommendations be completely ignored?

Can any government authority stop a criminal investigation? Can any powerful person in government give direct or indirect orders to judges? Can the police decide not to do any investigations into the complaints regarding opponents of the government? Can a local parliamentarian give orders either to release people or arrest people simply because he wanted it that way? Can the police or the military shoot anyone simply because he is identified as an underground element?

Can a judge make a judicial order without following due process and procedural obligations? Can the head of the state decide not to implement the constitution? Can the police or any other law enforcement authority use illicit drugs or liquor that they have confiscated either for purposes of making private profit or to give as gifts? Can public documents maintained by the authorities be altered or falsified as anyone would wish? Can bombs or other firearms be utilised to attack political opponents and these attacks be attributed to terrorists?

Can people who are displaced be kept in camps and deprived of the right to return to their homes? Can people be taken out of the camps of Internally Displaced Persons without leaving any trace of their removal from the camp? Can the government allow the abduction of persons to take place for ransom or for any other reason?

The answer to all these questions will depend on whether there is a criterion based on legality. If this criterion is accepted, then one can look into the law and give a reply to the question that has been raised. However, if there is no such criterion about legality the only answer to any of these questions is, yes, anything can be done.

In this way the question of legality disappears. It becomes irrelevant to find out what is really stated in a valid law.

The desire of people to have a legal explanation can be placated by an artificial creation of special laws, such as emergency laws, anti-terrorism laws and other similar laws which suspends the normal framework of the law that existed before. The previous system of law are suspended by these laws. That very suspension is called a law.

Now in Sri Lanka whether a particular act is legal or illegal has become virtually irrelevant. At the inquest of the incident of the murder of the two Angulana boys, it was revealed that at that police station, a sweeper was “paid” in the evenings with packets of heroin. Was that illegal? No criminal inquiry was made into this revelation and naturally no one has been arrested and prosecuted for it. Thus, the question of legality or illegality about the issue is just irrelevant.

Was it illegal to kill Lasantha Wickramatunga? Despite of local and international outrage and pressure, hardly any credible inquiry was conducted into the matter and no prosecution has been undertaken about this murder. Is there any relevance at all of discussing the legality or illegality of a murder when no action on the part of the state is expected as a response to such murders? Whether the action is legal or otherwise, the reaction of the state is inaction and such inaction is a matter of an undeclared but quite evident policy.

The factors that have made the law irrelevant in Sri Lanka

a. The Constitution of 1978: This constitution was meant to create a leader who is above the law. With that creation, the rule of law simply cannot survive. Enough has been written on this issue. In my book, Recovering the authority of public institutions this aspect has been dealt with at length. This book is available at: http://www.ahrchk.net/pub/mainfile.php/books/318/

b. The suspension of much of the criminal procedure law by anti-terrorism laws and emergency laws: All that used to be the law of the country in relation to arrest, detention and fair trial has been suspended. Now people can be arrested, detained and punished without trial, without any recourse to the protection that was inbuilt into the Criminal Procedure Code of Sri Lanka. By the suspension of such protection, abductions, disappearances, torture and abuse while in detention, and all kind of abuse relating to those who are arrested and their families, and many forms of extortion relating to arrest and detention, have become a common affair. There is nothing that can practically be done to stop any of the kinds of abuse of the process.

c. The emergence of a security apparatus that is above the law: The so-called law that they act within is the ‘Emergency Law’ and ‘Anti-Terrorism Law,’ which simply means the suspension of all safeguards of the citizens. Very little of what is done by this security apparatus is transparent. In fact, this apparatus can act with unlimited secrecy. The pretext is always that for reasons of national security such secrecy is necessary. What they do cannot be challenged on the basis of legality of these acts.

d. The disempowerment of judiciary and the undermining of judicial power: Due to the factors mentioned about, particularly the enlargement of executive power through the 1978 Constitution, the very conceptual basis of judicial independence has been displaced. In the early years of the operation of the constitution, there were still mindsets formed in earlier times among judges, lawyers and citizens, which acted as a buffer against the full impact of the constitution being felt on the judiciary. However, after 31 years of the operation of this “constitutional order”, such resistance has greatly diminished. The system has gotten adjusted to the president’s absolute power.

e. The virtual collapse of all public institutions: This is primarily a consequence of the operation of the 1978 Constitution, in which absolute power was placed in the hands of the Executive President. The law, when it exists, operates through the public institutions. When these institutions are no longer capable of exercising their regulatory and supervisory capacity, any of these institutions can be utilised without regard to the law. This means all kinds of corruption with regard to tenders, purchases, and even the ways of keeping accounts. There is nothing sacrosanct about any of the practices that these institutions are expected to perform. The citizen who goes before these institutions does not know what to expect.

It also means that when it comes to recruitment, promotion, transfers and disciplinary actions, there is no criterion placed on merit, and various types of undue influences and politicisation creeps into the system. Under such circumstances no one with any common sense would insist that the law or regulations have to be followed.

f. Disregard of the duty to investigate crime: Under the normal criminal procedure it was an obligation to investigate all crimes, and the methods of investigation were standardised. However, now there is no such obligation to investigate crimes. And where investigations are carried out, they are done so manipulatively. If someone desired to destroy another person, (for example, having them imprisoned in order to destroy their career) completely bogus inquiries can be carried out in the most fraudulent manner. The victim is quite helpless under these circumstances. Thus, the criminal investigation process ceases to be a mode of maintaining law and order, and becomes a mode of abuse of power.

g. Harsh repercussions on complainants and witnesses and the resultant fear psychosis: Within a rule of law framework those who have grievances are encouraged to come forward and are protected when they make their complaints. However, under the present circumstances those who complain about the abuse of power run the risk of threats to their lives. The consequence of these repercussions on complainants is the creation of a paralysing fear psychosis. Such fear spreads into every grain of sand.

Conclusion

Thus, the result of this total situation is that it becomes senseless to ask whether something is legal or illegal. What is illegal under the normal law takes place all the time and there is nothing anyone can do about it. If someone wants to insist on the implementation of the law, he or she undertakes an impossible task that will bring more adverse consequences that positive ones.

“For a few decades the word Holocaust has served us well as a shorthand term for man’s inhumanity to man. In recent years a second such shorthand term has entered our working vocabulary: Gulag. This term comes to us not from a host of witnesses but from one lone man: Aleksandr Solzhenitsyn, whose very name has become a household word around the world. Even people who have not read him seem to have an opinion about him.”

My advice to Indi and Dayan is that they read (or re-read) Solzhenitsyn’s Gulag and explain to us how the repression that is expressed in so much of detail in that book is different to the type of repression we have in our country.

About other points raised, Dayan has excelled in the Brahminical art of evading all the key issues of discussion in this debate. These issues, in short, are:

Why does he say that he is being irrationally treated due to ignoring merit in his removal from the ambassador’s post while he ignores that in the whole country there is no recognition of merit, as demonstrated by the refusal to implement the 17th Amendment to the Constitution?

Is the 1978 Constitution a constitution of a dictatorship, which has created a head of state above the law?

Is the country now virtually under the control of a security apparatus who is also above the law?

Is the virtual ceasing of criminal investigations under the criminal procedure code compatible with a rule of law state?

If Sri Lanka is not a rule of law state, then how is it different from other states which displace rule of law with the rule by security apparatus, like Russia under Stalin?

In the same Brahminical style, Dayan tries to drag the discussion into an ugly personal level. While many things can be said about Dayan, about his entire political past, I will not enter into that ugly area.

As for my having a bitter hatred for Sri Lanka, may I state that I only hate repression. I hate dictatorship. I hate extrajudicial killings. I hate torture. I hate officials who make it their job to lie about their own country, and whose sole role is to deny the suffering of the people of Sri Lanka. For me, it is not the country that matters, but the people. Democracy and human rights are about people and not just about land. What Dayan’s thinking is totally lacking is the people. People didn’t matter to JR Jayawardene, Premadasa, Sirisena Kooray, and now to Mahinda Rajapaksha. I have had no links with any of these, simply because I have hated, and I do hate, the politics of all these people.

What each individual loves and hates only matters to the extent that issues of public interest are involved in such matters. Reducing the people of a country to victims of a security apparatus and a ruler who is above the law are matters of public interest. My interest in this discussion is only to the extent of exposing the way the freedoms of the people are being crushed with the hope that the public debate on such matters will help a vibrant democracy within which the rights of all the people would be respected. If that is what Dayan calls bitterly hating the country, so be it.

I have written a weekly column to UPIAsia for over three years, under the title Burning Points, which is all available at my blog Sri Lanka Lawlessness. To struggle for a country that respects the rule of law and thereby provide an environment for people to live in, free from corruption and abuse of power, is my understanding of patriotism. Can those who support the destruction of the rule of law and allow limitless corruption to thrive say “I am proud of my country” with any sense of sincerity?

May I say that I don’t have a bitter hatred for Sri Lanka or even for Dayan. I only feel sorry that my country has come to this, and I also only feel sorry for Dayan.

His almost child-like need to believe that Menik farm was not a brutal manifestation of race politics and a reflection of the fundamental rot within the country that he wants to remain a part of was actually rather heartbreaking. For, unlike Dayan, he seems to sincerely believe what he says and attempts to be even keeled about it; but that need to believe always acts as a block. A recent post, where he was struggling with (and starting to reject) the cracking veneer of the pathetic rhetoric being doled out for the continued incarceration of these people, was rather telling. But also reflective of the immense intellectual naivety that underscores all of his observations.

Sometimes the unassuming ingénue can unwittingly play the same white-washing role as the cynical politician, which is why he draws much criticism for his nervous and visceral avoidance of all the issues that President Bean is raising.

You may scorn us for our anonymity – but who wants to do 20 years hard labour a la Tissa, my dear Dayan?

It is a big deal though for the Sri Lankan media , which reflects Lankan public opinion, and also for Indian press and the Economist (London) which quizzed me on the matter.

I think these anonymous writers to GV should take more seriously the sober, balanced views of Indi , whom I have had occasion to disagree with, but who unlike most of them, is a courageous, openly practising young Sri Lankan dissident using the alternative media. I last saw him on Al Jazeera’s Listening Post, critiquing the state of media freedom. He writes with greater authenticity than the permanent self-exile Basil Fernando, with his bitter hatred of our country.

Accepting cruel treatment silently is considered rational. To protest against it is considered hysterical, over emotional and irrational.

How has such an ugly mentality become part of the heritage-urumaya of Sri Lankans?

From 1971 up to now, in all parts of the country, we have seen the worst form of cruelties. We have also seen so many who enjoy seeing and remembering such cruelties as triumphs. The causing of such cruelties is even seen as heroic.

Every attempt to express human reactions to such cruelties is talked about as hysteria.

There is hardly any commonly shared mentality about what is cruel and what is not. Even the causing of forced disappearances is not considered as outrageous or inhuman.

Those who manifest such mentalities are mostly are among the educated and affluent classes. Among the ordinary folk, there is overflowing of compassion and anger against injustice. Such compassion is seen by those others as a simpleton’s mentality and the hysteria of the masses.

Our academics and researchers have not done much by way of studies into the kind of cruelty that creates such a mentality. Research into any locality in the country will reveal histories of cruelties by the more powerful families on the weaker ones. However, many young people from poorer families have been killed or otherwise seriously harmed simply because of jealousy and other petty reasons.

If all this is well documented the people of this country will have quite a different view of themselves.

However, even this would not be an easy task. They also may face serious repercussions.

Basil Fernando

But when the cry has been released and the feelings vented, when people begin to see the injustice and harm, and realise that something is rotten in the state, then there is a time for calmer voices.

There is no dialogue with a scream of anguish, or a torrent of outrage. But dialogue is needed. Un-hysterical voices and, most importantly of all, listening ears. People who will listen to the pain and fear of the other, as well as voicing their own.

Calm, rational dialogue while injustice screams from the rooftops, while barbed wire divides the nation, and while the white vans of injustice prowl the streets – all that may seem like so much Churchillian jaw jaw. Hopelessly impractical. Useless. But If there is not jaw jaw, there may instead be war war…

Give rational dialogue a chance, as the Beatles would never in a million years have put it (but probably should have).

I’m pretty sure ‘gulag’ isn’t remotely the right word to describe what’s going on.