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Sri Lanka is in fact a Gulag Island: A response to Dayan Jayatilaka and the mentality of the phantom limb

Dayan Jayatilaka begins his article with the words, “I am proud of my country, Sri Lanka.” To demonstrate the differences in our points of view I would like to begin by stating that, while I am proud of some aspects of Sri Lanka I am also very ashamed of many other aspects of my country, Sri Lanka. I have publically stated that many times, over many years, beginning particularly from the cruel repression of the innocent in 1971 under the pretext of dealing with the JVP insurgency. In my book of poems, The sea is calm behind your house, I have expressed many times that when a motherland turns into a ‘murder land’ it is a matter that the citizens should begin to recognize. This theme of the motherland turning into a cruel land towards its own children is also one of the themes in the Gulag Archipelago by Aleksandr Solzhenisyn (my book of poems is available at: www.basilfernando.net, kindly see particularly the introductory essay by Professor K.G. Sankara Pillai of India).

There are several reasons why Dayan does not think that Sri Lanka is a gulag island. One such reason is the fact that he was allowed to ‘express my criticisms on TV’ which makes him think that this would not have happened in a gulag island. The history of Russia from 1918 to 1956, which is the period referred to in Solzhenisyn’s book has examples of literally hundreds of thousands of persons who expressed themselves in varying kinds of dissident views, despite of the harshest possible repression that existed within that country. Some paid for their publishing with their lives or by being subjected to long prison sentences. Strangely, there were others who even survived within the system with all privileges despite of expressing some dissident views. In fact, such persons were kept as long as they could be used for one or another purpose. Sometimes, they were allowed to express their views for the very reason of denying that there was any repression at all.

Thus, being ‘allowed to’ express views of one or another person is not a criterion to evaluate a gulag island. The very use of the word ‘allowed’ when talking about free speech has a very sad connotation. Why should anyone be worried about being ‘allowed’ or not by somebody else when it comes to expressions of views? The very acknowledgement of having been disallowed speaks of a mentality that could only happen in a place where free speech cannot be taken for granted.

Dayan says the “defining characteristic of the Gulag is that it was a system of forced labour camps”. In fact, the defining characteristics of a gulag are many which I will mention shortly. Solzhenisyn does not use the term ‘labour camps’ at all in his book. He talks about ‘prisons’ and a secret security authority that runs the prisons. In these prisons the citizen is reduced to a zero. Virtually hundreds of thousands were just killed and millions were destroyed through this system. They ceased to exist. Ever since 1971 in the small island of Sri Lanka tens of thousands of people have disappeared in the south, north and the east. All decisions relating to such disappearances were taken by ‘security agencies’ and not by any by any judicial authority. The displacement of genuine judicial authority and its replacement by security authorities regarding the lives of large numbers of people is not a characteristic of labour camps; it is a characteristic of death camps.

Dayan also speaks of elections where a ruling regime may get even 70% of the votes as demonstration of a free country and not a gulag island. The history of Russia during the relevant period and many other countries which became gulag states is that the ruling apparatus can produce whatever result it wants because of the perfection of its coercive authority. While a democracy is a system that relies on the least amount of coercive authority, a gulag is one that has achieved perfection or near perfection in the use of coercive authority. For example, in North Korea now, if you were to hold any election the ruling clique would get, not just 70% but even 100% of the vote. In fact, rather hilariously, in some places they get even more than 100% of the vote – there being more votes than people! When the threat of a coercive authority looms large everywhere, with possibilities of abductions, disappearances, strange accidents and other forms of attacks on person and property, elections are no longer free and fair. It is no longer a test of the existence of a democracy.

A further argument of Dayan was that “there is nothing “totally”, or “systemically” warped in a country which can be put right by restoring a basic political equilibrium, as can Sri Lanka.” There is something which is totally and systematically warped in Sri Lanka which is the constitution of the country itself. The 1978 Constitution is a constitution of a dictatorship. At the early stages of its operation the country’s institutions and the mentalities of people operating at various levels were able to resist the full impact of this terrible constitution. However, after three decades of the operation of this constitution all the institutions have virtually collapsed and the mentalities of people have become inured to the cruel circumstances that they are now faced with.

Take Sri Lanka’s policing system now. Can it be turned into at least a basic level of a law enforcement agency by even a change of government? Anyone who has that kind of illusion needs only to read the reports and comments about the police which appear constantly in the press. Take the Attorney General’s Department, does it anymore enjoy the credibility of an impartial, non politicized agency committed to the strict enforcement of the rule of law only. Take the civil service and reflect on the extent of corruption spread everywhere. Take the case of even the military itself where General Sarath Fonseka was quoted in the media about corruption relating to military purchases which amounts to around Rs. one billion. This is just to mention a few. To believe that there is nothing irrational in this country would amount to nothing less than saying that there is nothing irrational in the world at all.

What I have written had nothing to do with the UNP or any other political party although Dayan tries to see it that way. I am talking about a system that has been systematically destroyed by the very constitutional process itself and where the democratic process has been replaced with a security process. That was not the work of this government only, it is a process that began in 1972 and became worse with each year ever since.

The discussion on irrationality was relating to a remark by Dayan that his removal from the post of Ambassador to Geneva was an irrational act because it was not taken in terms of assessing merits. I did not disagree with him; I only said that it is as irrational as all other acts taken without regard to merit. The very essence of the rejection of the 17th Amendment to the Constitution was the displacement of merit as having any relevance to appointments, dismissals, transfers and disciplinary action. The 17th Amendment applies to all Sri Lankans. Therefore, by the displacement of the 17th Amendment all Sri Lankans are treated irrationally. Why doesn’t Dayan who rightly complains about being treated irrationally worry about the rest of his countrymen who are also treated irrationally?

Defining characteristics of a gulag

This is a subject for a lengthy article where each of the elements mentioned below need to be dealt with at length. Such an article was under preparation at the time that Dayan’s comments appeared. I hope to publish that article shortly. I mention below the characteristics that I have identified as the defining characteristics of a gulag.

The concept of the gulag ever since Aleksandr Solzhenisyn used it in the Gulag Archipelago, 1918 – 1956, has come to mean a particular system of repression imposed within a whole country which has some definite characteristics. These characteristics may be described thus:

  1. The loss of the meaning of legality within a particular country.
  2. A predominant position played by a security apparatus which can virtually do whatever function relating to life and liberty of citizens without being bound by any rules.
  3. The emergence of a propaganda apparatus which is not bound by any rules relating to truth or falsehood; in fact, the meaning of any distinction between truth and falsehood disappears.
  4. The emergence of a superman controller who manipulates all the three elements mentioned above in any way that he wishes.
  5. A doomed citizenry who keep on believing that nothing has really changed while, in fact, everything has changed and who are unable to control their own destinies in any significant manner. One particular section of citizens may by suffering the worst at a particular time, but, in fact, the entire population of the country is affected more or less with the same degree of intensity but at different times.

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 complex still continues to exist. The people wish to believe that the old legal system and the social system are still intact despite of some unhappy new aspects that cannot be denied.

In a separate article I hope to deal with Dayan’s view on the 13th Amendment in relation to the 1978 Constitution. As much as a living branch cannot sprout out of dead wood no new political concept of democracy, participation or power sharing can arise out of the constitutional dictatorship which exists under the 1978 Constitution. What happened to the 17th Amendment has already proved this.

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dayan jayatilleka said,

September 28, 2009 @ 1:54 pm

Appalled and amused as I alternately am by the proliferation of critiques of Sri Lanka today which abound with absurd analogies either with Stalin’s Russia or Hitler’s Germany or both (eg Seelan Kadirgamar quoting Alan Bullock at the Rajani commemoration), I recommend a trenchant critique of current trends made by an academic more eminently qualified to make the necessary analytical distinctions and definitions than most who pontificate on the subject (such as, but not only, Basil Fernando). I refer to Sri Lankan born Razeen Sally, who is Director of the European Centre for International Political Economy in Brussels and is on the faculty of the London School of Economics (LSE). Writing a no holds barred, yet utterly un-hysterical piece in the Far Eastern Economic Review this July, his description of the crisis and definition of the danger is worth quoting for its objectivity:

“…The opposition, on the other hand, led by the previously-governing United National Party, is weak, divided and demoralized. Its leadership comes from the Colombo upper-class elite, which seems utterly cut off from, and unable to communicate with, ordinary Sri Lankans, especially outside Colombo and the Western Province. Most likely, Mr. Rajapaksa will call parliamentary and presidential elections later this year, with every prospect of winning handsomely. The danger is that Sri Lanka, shorn of institutional checks and balances, will veer—not for the first time—in the direction of a Caesarist elective dictatorship.”

As a political scientist of some modest ability, I find this conceptually sound.

Given Mr Fernando’s lurid and overwrought descriptions and complete lack of objectivity, no wonder his standing effort to become a special rapporteur of the UN Human Rights Council has never stood a chance!

Basil Fernando said,

September 28, 2009 @ 3:20 pm

It is the ordinary people of the country who have seen all of what has happened that are better judges than so-called academics who can judge what this country is like. Aleksandr Solzhenisyn was a prisoner and had suffered in Stalin’s Russia and then wrote about his experiences. The easy way to escape from the criticism of the mothers of the disappeared and hundreds of thousands of people who complained about the absence of justice in the country is to rely on some court from some foreigner who was not in fact, writing about these issues.

The 1978 Constitution, Dayan should note, is the issue. And no authority from whatever place is going to help you to get away from that issue. Does he need the help of some authority from somewhere to demonstrate to us that the 1978 Constitution is a wonderful constitution and that it causes no problem at all to the nature of the state in Sri Lanka? Would he also tell us that the 17th Amendment is a matter of no concern at all? Is he silent about it because he has not been able to find a good quote from some academic who believes that the holding of absolute power by the head of the state is no threat to democracy and rule of law.

It may be a big deal for Dayan to lose an ambassador’s post. The posts have never been much of a concern for me. Nor is it a big concern for the people who have been the losers of all their liberties while some people enjoy their posts.

What makes a gulag is the quality of justice. Where there is zero justice there is a gulag. Where there are authorities who are above the law there is the political background for a gulag. Where what can be done and what cannot be done is not decided by law but by arbitrary decisions that are not subjected to any scrutiny there is a gulag.

A bully and an academic are two different categories of people. A bully can get away from some circumstances particularly in dealing with people who do not know anything of the actual circumstances of the country that they are discussing. Such bullies have their victories. These victories are not that of an academic but that of a pure and simple bully. What this country is like would be decided by the people of the country when they have the freedom and opportunity to do so.

Those who have suffered under all the cruelties within this country are not proud of it. Those who have earned privileges out of the country declare that they are proud of the country, meaning they are proud of the suffering caused. No one today is proud of Stalin and his minions, nor will there be many to be proud of those who have caused endless suffering to all sectors of Sri Lankan society.

Basil Fernando

President Bean said,

September 28, 2009 @ 4:18 pm

Like Basil Fernando has stated, not only is there zero justice in our ‘Utopian Gulag Paradise,’ but our ‘Utopian Gulag Paradise,’ was also able to win a war with ‘zero casualties’ as well. This is country is indeed a ‘BIG Miracle’ and not a ‘Small Miracle’ like some traitors in the tourist board would have us believe!

LONG LIVE BIG BROTHER!
War is peace! Freedom is slavery! Ignorance is strength!

Hari Narendran said,

September 28, 2009 @ 8:04 pm

Well said Basil. The rule of law has no meaning in Sri Lanka, increasingly so under the current regime.
Dayan does have a point though, in that the lack of a credible opposition with a crisp message and vision for the country, immensely helps the government to continue in its undemocratic ways.
Even if they did, one wonders whether it would make any difference. Parties in our country sing a different song when in opposition vs when they have their hands on the levers of power.
Our President has himself descended a long way from the man who spoke the words below in Parliament regarding the collective punishment tactics the state took in combating the JVP, to the man he is now.
“Listen to this, Mr. Deputy Chairman ; the son has done the wrong, the complaint is against the son. They have taken the ageing father from home and keeping him at the Police in lieu of the son. Which devil’s law is this? What is this law? What is the result of this? Is this democracy? Are these human rights? Is this the five star democracy you are talking about? Is this the dhamma we hear on the radio daily? Is this the sermon preached on Saturdays?”

smoulderingjin said,

September 28, 2009 @ 9:17 pm

Basil Fernando – your analysis of the nation as a Gulag is quite fascinating (and quite chilling), and does demonstrate something that is worth thinking about. I suspect there are many who will agree that the nation, despite the agreed victory and defeat of the LTTE, has been on a long journey that works out the consquences of the 17th ammendment.

Dayan – Whether it is academics or non-academics, the expression of people’s thinking is valuable. Hysterical outpourings on the state of the nation – either defending it or condemning it is one form of expression – the only one that most non-academic’s can give. Razeen Sally’s careful, “un-hysterical” and “objective” is his particular contribution to the debate, and the unemotional dynamic of it belongs partly to the academic training and enterprise (and may partly be an aspect of him being ’somewhat detached by being a Muslim and not located in Sri Lanka – but that can be speculation).

This is of course to enter a debate about whether emotional responses are any less valid than academic ones, or whether emotions such as anger, outrage, are valid or whether only academic discussion is valid at times like this.

Perhaps the emotions of outrage and anger at where the nation is at this point of time, is as valid as pride in the nations achievement against the LTTE.

bottle said,

September 28, 2009 @ 9:37 pm

Dayan is a well-appointed, loyal foot soldier of the gulag and will be rewarded handsomely. Good show sticking up for it. One can always dazzle with semantics and find some academic to counter-point another with careful citations and selective analysis. In a country where a quarter of a million civilians are being illegally incarcerated boldly beneath our very noses, that is not a feat to be scoffed at. You need more than a skillful academic conjurer to smoke and mirror your way past that one. Not a drop of blood shed, not one liberty lost. How proud you must be Dayan! When the war-crimes tribunal happens a few decades from now, they may talk in hushed whispers when you pass by.

bottle said,

September 28, 2009 @ 9:47 pm

ps – that catty comment on Basil and the UNHRC post was in poor taste and made you look incredibly pompous, inelegant and petty.

Charles Sarvan said,

September 28, 2009 @ 11:41 pm

Dear Mr Basil Fernando,

I would like to get a copy of your anthology, ‘The Sea is Calm Behind Your House’, (with the possibility of reviewing it). Please let me know whether it’s available in Colombo. Thank you.
Best wishes
Sarvan

indi said,

September 29, 2009 @ 3:26 am

Calling Sri Lanka a ‘gulag island’ is pointless and inaccurate hyperbole. A gulag is a penal labor camp. The defining characteristics you cite above could apply to any monarchy or dictatorship without being a gulag. People are not being arrested and put into forced labor camps, which is what a gulag is (http://en.wikipedia.org/wiki/Gulag).

It’s just not the right word at all. Sri Lanka is obviously not one big penal colony. This type of exaggeration makes it harder to come together and face the real issues we have.

indi said,

September 29, 2009 @ 3:29 am

Actually, Gulag is apparently a Russian acronym which means ‘The Chief Administration of Corrective Labor Camps and Colonies’. Does this apply to Sri Lanka at all. Are you living in a corrective labor camp? Are you chopping wood and eating gruel?

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

undergroundview said,

September 29, 2009 @ 3:33 am

@smoulderingjin: Emotional outpourings are necessary and vital. Anguish and outrage do not often inspire a calm and dispassionate analysis.

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).

President Bean said,

September 29, 2009 @ 9:50 am

Indi…you said “This type of exaggeration makes it harder to come together and face the real issues we have.”
SO PLEASE could you enlighten us as to what the ‘real issues’ we have?
You also say, “I’m pretty sure ‘gulag’ isn’t remotely the right word to describe what’s going on.”
PLEASE do describe and tell us the ‘right word’ for all the abductions, incarcerations of suspects without a trial, incarceration of half a million Tamils, nepotism, doublespeak, election riggings, human rights abuses, intimidations, killing of journalists etc? Is this the ‘Aluth Sri Lankawak’ we were promised?

Java Jones said,

September 29, 2009 @ 11:23 am

It would be interesting to get Dayan’s views on the current situation of ‘human rights’ in the country – particularly in relation to President Bean’s last paragraph in his comment above…

Basil Fernando said,

September 29, 2009 @ 11:49 am

The degeneration of mind that can place in the midst of extraordinary forms of repression is unbelievable. One demonstration of that is the way in which forced disappearances are treated by some parts of the population in Sri Lanka. They not only support but are overjoyed to see such things happening. When the family members cry about it, they are told not to be hysterical or emotional about it.

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

dayan jayatilleka said,

September 29, 2009 @ 6:50 pm

“It may be a big deal for Dayan to lose an ambassador’s post” says Basil Fernando. It isn’t. If it were I’d have sent in a letter of protest or supplication or be ringing door bells seeking an audience with someone at the top, and an alternative posting — none of which I have done. When I was given an extension in March ( which was reversed in July) I had not even requested one.

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.

bottle said,

September 29, 2009 @ 8:12 pm

Oh dear. Indi, as sincere as he is, is given to rather naive and simplistic analysis (and there is a dearth of credible “young” intellectual voices in the country as many of the brighter minds are no longer in situ, having found no need for small ponds and frankly see little future within the blood-spattered four walls of mother Lanka). He is seemingly spurred by his need to believe in the validity of Sri Lanka as his newly adopted homeland. Perhaps it is some second generation diaspora malaise and identity crisis driven reflex?

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?

In Your Face said,

September 29, 2009 @ 11:51 pm

Gulag Basil, keep ‘em coming! Perhaps you can give your comedy sketch to Saturday Night Live…

Basil Fernando said,

September 30, 2009 @ 6:24 am

I rely on Aleksandr Solzhenitsyn about gulag means, rather than the great expert called Indi who the former ambassador relies on. Aleksandr Solzhenitsyn on his three volumes on the Gulag Archipelago (472 pages in my edition) talks of a system of total repression within which the people of the country were reduced to zeros. The book begins with a wonderful chapter on arrest, all the features of which have happened in all of Sri Lanka since the late ‘80s in the south as well as in the north and the east. The second chapter is on the history of their sewerage system. By sewerage system he means the system of the disposal of the people themselves. The next is on interrogation, which again has so much factual details that are so similar to our system of interrogations in recent times. The rest of the book gives minute details of what has been done to the people. In the introduction, Edward E. Ericson Jr. has this to say about the way Solzhenitsyn used the word gulag.

“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.

Basil Fernando said,

September 30, 2009 @ 9:33 am

In the course of this debate, I have mentioned that one of the features of a gulag is the lack of clarity on what is legal and illegal. I promised to elaborate on this. The following is my elaboration of that issue.

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.

Silap Adikaram said,

September 30, 2009 @ 11:14 am

I am not sure if these lenghty ping-pong exchanges are leading anywhere. The cost at which ltte (and the jvp twice before that) was put down, the subsequent treatment of displaced people, the corruption in the system, the centralization of power in the hands of just a few (in one family) and the inability to implement even existing provisions of the constitution (13) in the interest of long term political stability should worry us all. Saying that does NOT make me a sympathiser of the ltte — I am not. LTTE was evil, we all know. But we have a right to demand higher standards of behaviour from our government. I fully share the view: “I am proud to be Sri Lankan, but there are things that are going wrong, and if not fixed will take us down a nasty path”

President Bean said,

September 30, 2009 @ 2:24 pm

Dayan and Indi should also read George Orwells ‘1984.’

President Bean said,

September 30, 2009 @ 2:28 pm

Would be quite grateful if Dayan and Indi could enlighten us on ‘State Terrorism.’
(…that is if there is such a thing in Sri Lanka.)

undergroundview said,

September 30, 2009 @ 7:04 pm

Are any of the people quibbling about the term Gulag actually disputing that the underlying problems Basil Fernando highlights with society and the law really exist? Or disputing that they are a problem?

bottle said,

October 1, 2009 @ 5:35 am

I don’t think it would serve Dayan’s purposes to actually tackle the issues in detail, Undergroundview. It’s far more politically advantageous to talk in broad generalities and be reactive; if he actually systematically addressed all the issues Basil is bringing up, instead of defaulting to being embarrassingly pompous and crassly patronising (lower than the lowest form of wit), he wouldn’t have a leg to stand on.

Basil Fernando said,

October 1, 2009 @ 7:11 am

I have received the following comment from a reader which demonstrates that Dayan knows what Gulags are and is a defender of the Stalinist style repression:

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.

dhamalanka said,

October 3, 2009 @ 7:18 pm

“the permanent self-exile Basil Fernando, with his bitter hatred of our country”

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 …

smoulderingjin said,

October 3, 2009 @ 11:24 pm

I cannot for the life of me understand *why* intelligent people who have the best of their nation at heart stoop to insults and snide remarks. The future of our country is at stake, and all people can do is throw mud at each other?

Disappointing…really.

aadhavan said,

October 4, 2009 @ 12:40 am

I’m not surprised at the whole Stalin-supporter thing. Dayan, who claims to be a proponent of equal treatment of people of all ethnic groups, has employed classic racist rhetoric from time to time as well. This quote for instance, from a piece he contributed to GV not a long time ago, referring to the Sinhalese

“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.

smoulderingjin said,

October 4, 2009 @ 2:16 am

Also let me add to President Bean’s book recommendation – George Orwell’s “Animal Farm”. Amazing prophetic bits of writing – “1984″ and “Animal Farm”.

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!

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