Raging against a monarchical mindset

By Kishali Pinto-Jayawardena

(May 17, Colombo, Sri Lanka Guardian) The Northern lawyers’ boycott, which ended this week upon Chief Justice Asoka de Silva’s assurance that judges will not face threats to the proper carrying out of their duties in the North, teaches us the important lesson that even in the most desperate of circumstances, one must vehemently ‘rage, rage against the dying of the light’.

Learning from the past

It also underscores the importance of firm collective action. This is a good pointer to strategies that the Bar Association of Sri Lanka may contemplate in regard to matters that directly impact on the judiciary and the official or the unofficial bar. The recent bringing of the Attorney General’s Department and the Legal Draftsman’s Department under the direct control of the President in terms of Article 44(2) of the Constitution is one good example.

It is no excuse to say that this has happened in the past (ala once in the seventies) or that, it only makes de jure what had anyway been a de facto state of affairs. Surely had we not learnt anything from the convulsions of the seventies in regard to the independence of constitutional and judicial institutions? Had’nt successive Parliaments of Sri Lanka since then engaged in a collective beating of their breasts in their efforts to undo the mistakes of the past? Had’nt learned treatises been written, reams of analysis engaged in and numerous conferences held whereby these most colossal mistakes of the past had been condemned and we had sworn never to repeat such practices that had so severely damaged institutional democracy in this country? Where have all these conscientious objectors gone to?

Courage at the lower levels

But to revert to the boycott by the Northern Bar, this was occasioned by threats leveled against Chavakachcheri’s judicial officer after he had handed down an order directing an inquiry into the abduction and killing of a schoolboy. According to news reports, consequent to the protests, the police had taken some suspects belonging to the EPDP into custody. Both the security forces and the police had assured that the judiciary would be provided with adequate security but the Jaffna Bar. However, unsatisfied with these assurances, the Northern Bar requested an assurance from the head of the judiciary itself which they got. This is indeed courage of a very specific kind.

It is a fact that at times, courage is exhibited at the lower and far more vulnerable levels rather than at the higher and (paradoxically) more protected levels. For example, the Chavakachcheri Magistrate’s Court had distinguished itself even previously by its strong statements issued in relation to inquiries into habeas corpus applications brought in respect of ‘disappeared persons’ during the thick of the war, from the 1990’s to more recent times. Pungent criticism was evidenced regarding the manner in which the inquiries were being subverted on various grounds, ranging from interminably delaying postponements by defence counsel to intimidation of witnesses.

Allegations and counter allegations

In contrast, the appellate courts have taken a far milder approach on equally pertinent matters such as requests for transfers of these cases from the area courts to Colombo or to the North Central Province, despite the fact that the witnesses and relatives of these ‘disappeared’ persons found it well nigh impossible to undertake the financial and security risks of such travel. Many of these applications consequently lapsed as the petitioners dropped the cases not out of lack of interest or due diligence but owing to the sheer impossibility of their coming forward facing these additional obstacles apart from the routine threats and intimidation.

In an era moreover where almost every act of defiance is being dealt with as if it is a terror threat, the courage of the Northern Bar deserves specific commendation. On would have never known, for example, if such protests may have been met with the counter allegation that the lawyers involved in the protest were, (as is now famously common), aiding and abetting terrorists or indeed, if such allegations had been aimed against the judicial officer in question.

Institutions replaced by individuals

At another and connected level, it is a good indication of the absurdities to which we have descended to, that the bringing of the Attorney General’s Department under the control of the President is sought to be justified on the basis that prosecutions into ‘terror cases’ are not efficaciously done by the Department.

Therefore, as we are informed most ingeniously by government friendly media reports this week, the Department is being brought under the President in order to enable, (as should be assumed), the better functioning of the prosecutorial branch. Indeed, this basically oxymoronic logic appears to be seeping into very pore of our collective functioning. We are being told, again, that the Department of the Police is not functioning properly and that therefore, it should remain under the Secretary of the Defence Ministry and the President’s brother in order to ensure its reenergizing. So we see the Defence Secretary admonishing the police to behave better. We also see sycophantic letters in some newspapers imploring the Defence Secretary to deal with the miscreants in the police ranks as much as he dealt with the LTTE. This is all part of the monarchical mindset that we have now got accustomed to. Instead of independent and well functioning institutions within the context of the Rule of Law, what is touted and so easily swallowed is reliance on a king, two kings or three kings as the case may be and the amiable benevolence of their kingly dispositions to govern well. What we have therefore is the very opposite to what the Rule of Law means.

Justice too in the hands of the kings?

It may perhaps not be too long that we are assured that justice too is in the hands of the king/s. One of my friends and close colleagues who had worked for long years in a South East Asian country where the intelligentsia was slaughtered in the killing fields of a perverse workers paradise is fond of telling this story. When the United Nations had been attempting to bring the idea of the importance of democratic institutions back into the mindsets of people, the then ruler had waved his hand when talking of the independence of the judiciary and declared emphatically ‘Do not worry about the independence of my judges. I will make them all very independent without a doubt.’

Probably in a few years time, even the irony and the dark humour in this kind of declaration may be lost on ourselves, obsessed as we are now with our monarchical mindset. This is the ultimate price that we will pay as a country, as a society and as individuals.