30 July 2018

Is Criminal Justice and Accountability a ‘Foreign’ Concept?

In 2015 the Sri Lankan government co-sponsored UN Human Rights Council Resolution 30/1 and committed to setting up a judicial mechanism, amongst other things, to investigate allegations of human rights and international humanitarian law violations that were perpetrated by both sides to the civil war. Over the course of the last two years, President Sirisena and other senior Ministers of the government have strongly expressed their opposition to the idea of criminal accountability for international crimes allegedly committed in the context of the armed conflict. The government’s stance on this matter seems to have been tacitly endorsed by the larger Sri Lankan public. The idea that criminal trials are inherently ‘foreign concepts’ that are sought to be imposed on Sri Lanka by Western countries has gained strong traction within the mainstream public discourse. However this article seeks to briefly demonstrate that criminal justice and accountability are in fact deeply rooted in the Sri Lankan legal, social and religious tradition; perhaps far more than notions of forgiveness and reconciliation.

Sri Lanka’s historical chronicles often note (with pride) that the country had an ancient and sophisticated system to administer justice in the island. Admittedly, since the system functioned under a monarchy it did not fully reflect the principle of separation of powers. Often the monarch himself or senior administrative officials (Vidanes, Mohottalas, Adigars and Disawas) exercised judicial power. However, even this ancient system privileged the promotion of criminal justice and accountability as a means of achieving social cohesion and peaceful relations. At the lowest levels, the Gamsabhava (village tribunals) adopted flexible and community friendly processes to swiftly deal with minor offences in a village. The flexibility and simplicity of the processes were aimed at achieving swift criminal justice/accountability in order to ensure that disputes did not give rise to further animosity. At the highest level, an institution known as the Rajya Sabhava (King’s Court) is said to have conducted proceedings roughly equivalent to modern day criminal trials. During the time of the Kandyan Kingdom, this institution which was known as the Maha Naduwa is said to have conducted criminal trials, with the Chief within whose jurisdiction the offence had initially been committed acting as the prosecutor.

The policy underlying the aforementioned system was undoubtedly the maintenance of social order through the rule of law. Dr A.R.B Amarasinghe (one time judge of the Supreme Court of Sri Lanka) in his work ‘The Legal Heritage of Sri Lanka’ (at page 33) states that some of the earliest kings in Sri Lanka’s recorded history were guided by the Dharmashastra; an ancient Indian body of jurisprudence which included rules of conduct for monarchs. The Dharmashastra prescribed a duty on the monarch to carry out danda (punishments) to maintain social order and also stated that the failure of a ruler to punish an offender transferred part of the offender’s guilt to the ruler. Subsequently, even as the Sri Lankan rulers embraced Buddhism and the country crafted its indigenous system for the administration of justice, this monarchical responsibility does not seem to have diminished. Prominent Buddhist ecclesiastical works during the Anuradhapura period (Majjhima Nikaya) and literary compilations during the Polonnaruwa period (Amavatura) have characterized punishment as being mandatory for the general welfare of the kingdom and its people. (Dr A.R.B Amarasinghe ‘The Legal Heritage of Sri Lanka’ at page 35)  This was presumably on the basis that there could not be effective socio-economic activities in the country if there was no law and order. The maintenance of the rule of law through punishment seems to have been held in such esteem that court of law have been referred to as dharma sabha (righteous council) and judges as dharma vinicchakara (righteous judge) in another prominent ancient work called Samanthapasadika. (Dr A.R.B Amarasinghe ‘The Legal Heritage of Sri Lanka’ at page 35) Moreover, the principle of equality before the law had been strictly imposed by the rulers at that time. Dr Amarasinghe’s book gives numerous examples of even members of the Buddhist clergy being sentenced to harsh punishments for offences ranging from treason to murder. 

Therefore Sri Lanka always seems to have embraced criminal justice as one of the surest means of sustaining peaceful relations in the community and nation at large. The value of punishment, with its concomitant benefit of deterring and disciplining individuals has for long guided the personal and community lives of Sri Lankans. The historical importance given to criminal justice in the country is also deeply rooted in the Buddhist religious tradition. Although Buddhism required one to eschew violence and embrace the path of compassion towards fellow living beings, punishment was not necessarily considered as being contrary to this philosophy. Dr Amarasinghe in his work cites a portion of the Polonnaruwa Galpotha Slab Inscription of King Vijayabahu the 1st in this regard. The said inscription characterizes punishment as an act of compassion towards the offender since it leads the offender away from evil and presumably reopens a pathway to gain merit. In a sense, the suffering an individual underwent due to punishment was perceived as a form of expiation that was essential before the person could be re-accepted by society. The ancient court system also seems to have accepted this idea by specifically ordering the community not to vilify or ostracise a person who had already been punished by reference to his previous offence.

The above analysis indicates that punishment and criminal justice are concepts deeply rooted in Sri Lanka’s socio-legal and religious tradition. In spite of this, whenever criminal justice and accountability is spoken of in the context of mass atrocity crimes, the perennial political response has been to dismiss criminal trials as being ‘foreign impositions’ and adopt the language of reconciliation and forgiveness. Very often a criminal justice response has been rejected in relation to state sponsored violence for political reasons. The purported ‘alienness’ of criminal trials has been used as a smokescreen to justify inaction in this context. Further, it has sometimes been argued that a Truth and Reconciliation Commission (TRC) is a more culturally appropriate response to deal with mass atrocity crimes i.e. by forgiving, reconciling and moving forward. Nevertheless, legal commentators in Sri Lanka have argued that a South African styled TRC is likely to have limited success in Sri Lanka since the Christian theological concepts of repentance and forgiveness – which underpinned the South African TRC – have limited resonance among the majority of Sinhalese, Tamils and Muslims. Such a conclusion is buttressed by the historical experience of Sri Lanka as well.

In sum – contrary to the mainstream public discourse today − Sri Lanka’s historical experience paints criminal justice and accountability as autochthonous principles that have for centuries been used as tools to build and sustain social cohesion within the nation. Therefore, the negativity attached to criminal accountability when it comes to Sri Lanka’s transitional justice process is both unwarranted and a blatant distortion of our historical experience which privileged punishment as a tool of social engineering.

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