An election can give political power to the winning political party and its leadership. Thereby, they could claim that their exercise of power is legitimate. From the point of view of formal legitimacy, that claim is justifiable.
However, elections cannot create the authority of the state if it has lost that authority. In quite a few Asian countries today, we can see how the power transfer is legitimate but the elected governments cannot exercise their authority in order to fulfill the purposes for which that power was given to them. This article explores how this conflict between political power and the authority of the state developed in Sri Lanka.
In essence, the state is supposed to exist regardless of the particular governing party in charge. The institutions of the state are supposed to function in accordance with certain innate principles and within their legal framework. When they do not, the elected governing party or coalition adopts two ways of dealing with this: one, institutions are taken over to serve political interests of the leadership or those they grant favours to; and, secondly, ad hoc methods of running of these institutions are taken up in order to fulfill the immediate needs of the moment. The illustrative example in this article is about the way police functions were handed over to the military, in contravention of the law and established norms, which revealed a deep failure in the underlying institutions of the state.
To understand this, we need to go back several decades. We may begin with the 1958 race riots and the declaration of emergency. The 1958 race riots and the manner in which the emergency regulations were used was one of the first examples of the failure to control violence by those who had the authority to deal with such a situation.
After the 1958 race riots, there was a secret meeting of the officers of the police hierarchy to have what they called a postmortem of what took place during this time, particularly on why the police failed to predict and control the situation efficiently. A related question was whether it had been necessary to call in the military to deal with the situation when there was a police force that had a large group of officers and also an adequate legal framework within which they could operate in order to prevent such occurrences and/or bring them under control within the shortest possible time.
The assumption that underlay this discussion, judging from a report of the meeting published by Tarzie Vittachi in his famous book Emergency 58, clearly shows that the police hierarchy at that time thought that it was the police’s duty to deal with the situation and the military need not have been called had the police ably carried out their duties. They admitted the general principle that maintaining law and order is the function of the police, and that the military could only be on standby. However, in 1958, the military had to be called, and they took control of the law and order function, and this was an indication of the failure of the policing system to deal with the situation. The postmortem, as they called it, was an attempt to understand how such a situation had occurred.
Top police officers of the time gave their opinions during this gathering, as recorded in the meeting’s minutes.
One clear agreement that seems to underline the comments that were made by these higher officers was that there had been a serious failure of the policing system and that, for various reasons, a tendency towards police inaction had entered into the system.
The discussion centered on the need to get back to the proper functioning of their system, and thereby to assert the authority given to the police. Some of the reasons that emerged for inaction within the policing system were as follows: that there was an apprehension widespread among the police that the top officers may not stand by the police carrying out the operations that needed to be carried out in a situation of tension and violence because they lacked the confidence that they will be protected by the headquarters. This apprehension has caused a certain levels of demoralization among the police force. Under those circumstances, a tendency to not to get too involved - meaning not to take necessary action - had developed among the police officers in general.
A further reason that was mentioned by one of the DIGs of the time, Sydney Soida, is that there had been an overall undermining of the rule of law. These background developments affected everyone. In these situations, rioters and those stirring up discord were encouraged because they were aware of the overall breakdown, and they perceived that this could be utilized to their advantage. Meanwhile, the police as the agency responsible for handling such riots was affected by the overall breakdown of the rule of law, which creates a crisis in all institutions, including the police.
However, in 1958, there was still the determination at the top to examine the problems that had developed within the system, and to make an attempt in order to regain the authority that they had lost.
1962 the Coup Attempt
There was a coup attempt to overthrow the government of Mrs. Sirimavo Bandaranaike, which was led by some officers of the armed forces and police. This coup has been well documented in the book of an American researcher who interviewed almost all of the persons who were later charged for attempting this coup. The primary objective of the coup was to oust Mrs. Sirimavo Bandaranaike as a Prime Minister and to arrest all the cabinet ministers. In their place, the military was to appoint a ruling council, which would also include all the surviving prime ministers in the country. Their expressed belief was that this would be a bloodless coup, and while the ruling council prepared the way, fresh elections could be conducted in order to elect the next government.
The reason why they wanted this change was as a reaction to the forces that were unleashed in the 1956 elections in which Mr. S.W.D. Bandaranaike won a massive victory and became the Prime Minister, defeating the former ruling party, the United National Party, by reducing their numbers to 8 seats. The reason for this massive victory was the pressures which came from the rural areas particularly in the South where the people had a general feeling that, from the beginning of the British Colonial rule up to that time, they had been neglected and that the perks of whatever developments that had happened had gone to a small minority of persons who spoke English and who were educated in the few prestigious schools which were mainly situated in Colombo. These vast masses wanted a change of this situation so that their children would also be able to claim jobs in much sought after government services and professions.
This led to conflict between the more privileged sections of society and the overwhelming majority of people belonging to the rural areas, who happened to be mainly Sinhalese and Buddhist.
The leaders of the military and the police that had participated in the conspiracy for the coup were people who thought they had been disadvantaged by this social change and their children will not have the prestigious positions that they used to hold under former times.
The coup was defeated due to information leaked by someone who passed the information to political authorities who in turn got the Inspector General of Police (IGP) to act immediately in order to arrest the conspirators and to stop the execution of the coup. The coup was to happen at the midnight of a particular date, but by that morning the conspirators had been arrested.
What is important for the purpose of this article is to show that already there was a strong tendency at the top of the armed forces and the police to be deeply demoralized by the changes which were happening in the country, and that they wanted to alter the course of history. Thus, this marked a higher stage of demoralization when compared to the situation in 1958. Though the coup was exposed and defeated, and the coup leaders were brought to trial and convicted according to the law, nothing was done in order to examine the causes of dissatisfaction and demoralization.
1983 Anti-Tamil Pogrom
1983 marks a more prominent expression of police inaction than it has ever happened before. 1983 riots were spread nationwide, but were particularly strong in the South, closer to capital Colombo, and it was this event that marked Sri Lanka as a violent spot in the political map of the world. It has been extensively recorded how the police just stood by and hardly took any action in order to decisively intervene against the rioters, and that in many instances, the police themselves participated in provoking violence as well benefitting from the looting.
There were many reasons for this behavior on the part of the police. One was that the riots were reaction to the killing of about 13 persons by the LTTE in the North. The demand for burial for all the 13 together at the Colombo main cemetery was allowed by the then President J. R. Jayewardene, despite him being warned that riots would follow. It was considered politically expedient for his consolidation of power.
The police would have seen the attack on the military as an attack on themselves. It was the attack on the protective arm of the state of which they were also a part. Further, the cause of the riots was racial, between the Sinhalese and the Tamils. The vast majority of the policemen were also Sinhalese; therefore their sympathies would have also lay with the rioters.
There was clear evidence that the military in many areas passed information informally to the police stations a few hours before the riots broke out about what might happen that day, and with a request that they should not interfere to stop the riots.
Above all, the attacks on houses, individuals, and business premises of Tamil people were led in many places by the local UNP organizers. That very fact would have indicated which side the government was in this matter, and that would have influenced the manner in which the police would have acted on those circumstances.
Above all, there was no clear evidence of strong assertions of authority by the top police officers in order to mobilize the police in order towards decisive actions. The failure of leadership, whether it was deliberate or not, was a factor of the police inaction which led to huge loss of lives and property, and created an undeniable mark of shame on Sri Lanka as a whole.
This was a key moment in the process towards entrenched inaction within the policing system, which had reached much higher stage than in 1958 or in 1962.
The two JVP uprisings
The 1971 and 1987-91 JVP insurgencies saw the police being used to commit heinous crimes, such as enforced disappearances and widespread torture, including the creation of torture chambers.
Such crimes took place on a large scale. Institutionally, this meant the breakdown of discipline. The creation of a disciplined police force takes a long time. When discipline can be flouted without consequences, institutional memory of functioning according to laws and guidelines begins to disappear. As people have said, the disappearance of persons was accompanied by the disappearance of a system. The influence of this factor remains unaddressed.
The fight against the LTTE
The former Secretary to the Ministry of Defence in Mahinda Rajapaksha’s regime openly admitted that in guarding Colombo against LTTE attacks, police were taken away from their policing duties and used for national security functions. Tha also contributed to the loss of whatever institutional habits were inbuilt over a long period beginning with colonial times to be lost. The result, once again, was transforming a civilian policing system into more of military functions. No real attempt was made since the end of the fight against the LTTE in order to have a drastic reform to bring back the institution into its primary function of enforcement of law and order, and for the protection of people.
21 April 2019: The Bomb Attacks on Churches and Some Tourist Areas
Perhaps more than all events, the attacks on three churches and several hotels and other places, which killed around 300 persons within a few hours, has shocked the whole nation.
The questions that are being asked is as to the responsibility of the inaction of the intelligence services, the police and also the political authorities even after intelligence from neighboring country about the imminent attack in which even the possible places of attacks and those who are seen as the masterminds were detailed out.
In this instance, there is no controversy over the conclusion that the inaction of the police including the intelligence services were at the root of allowing this attacks to take place.
That there was no leadership from the top of the police or intelligence services, and also from the political leadership in order to deal with an extremely dangerous situation has been an issue, which has unanimous consensus.
There is an attempt to discuss the causes of April 21 event. However, they are discussed in isolation and without going into the processes in which the policing and the intelligence systems came to the point of such neglect of their basic functions.
If a solution is to be found to the events of the 21st of April, it is essential to back into the process into which there was a transformation of the policing system, which gradually degenerated into what it is now. Without such a historic understanding of what has happened, there could hardly be any durable solution to this problem.
Thus, discourse aimed at understanding the events of April 21 requires serious attempts to understand the processes by which the state lost its authority while governments continue to be legitimately elected by the electoral process. The gap between formal legitimacy and the ability to exert authority for the protection of the people, which is the most important function of a state, needs to be looked at holistically with reference to the historical process by which Sri Lanka came to the position that it is in now.
By Basil Fernando
Issued by The Asian Human Rights Commission (AHRC)