The bar, the law and 'profound' absurdity

by Kishali Pinto Jayawardene

(August 09, Colombo, Sri Lanka Guardian)External Affairs Minister GL Peiris's tendentious if not patronizing statement this week that fifty percent of judges on this country are his students of high integrity and that it is 'profoundly unsatisfactory to see them being attacked' (see Daily Mirror of 5th August 2010) is a good example of the absurdities that we are now inflicted with.

Facing our democratic deficit

So let us examine the External Affairs Minister's logic or the singular absence thereof. Is the Minster heard to say that the certificate of studentship by him is sufficient per se to bar reasonable and justified criticism of judges and the judiciary? For her manifold sins, this columnist was also among those who in the late eighties, (though this seems eons back), was subjected, albeit not particularly raptly, to the good professor's teachings of justice and fairness at the Faculty of Law, those same virtues that he now disregards. The point is that G.L Pieris the law professor of decades back is eminently not the same as G.L. Peiris the expedient politician of the past decade and most certainly of the present. As the less discerning ought to be cautioned, it is wiser not to confuse the two.

Indeed, far more than the unsavoury likes of Mervyn Silva, it is ministerial figures such as these who should bear responsibility for the democratic deficit that Sri Lanka now faces. Without hemming and hawing over the 17th Amendment to the Constitution and talking unconvincingly of a 'strong executive', it is the good professor who should persuade his President to implement an essential part of our Constitution.

Without staying conspicuously silent when independent oversight by the Human Rights Commission and the National Police Commission is discarded, the Department of the Attorney General is brought directly under Presidential authority and a political challenger is mercilessly hounded, it is the good professor who should act as a cautionary voice. Instead, he only talks vapidly of 'due process.' When Sri Lanka screams at the United Nations and other regional entities, it is the good professor who should advise on the merits of sober and well thought out engagement. Unfortunately, we do not have sober voices in the public sphere today much to this country's loss.

Critiquing judicial systems

But let us engage with the External Affairs Minister on another plank of his argument. The Minister has been heard to say, during the course of this same speech in Parliament, that 'if the judicial system is denigrated, it will only help those who wish to harm Sri Lanka in different ways.' But surely the best way that meddlesome foreigners can be prevented from interfering with the internal systems of this country, is to set that fundamentally flawed system to right? On that same principle, are we then supposed to desist from justifiably critiquing what is so obviously wrong with our justice systems due to fear that these critiques may be misconstrued as grounds for external intervention? Or when a judicial officer takes a bribe without fear, mercilessly sexually abuses a domestic aide with impunity or decides a case in a particular way due to political intervention? This reasoning is so laughable as to be virtually pathetic.
The responsibility of

the opposition

This is, of course, not to vest any legitimacy with those who are now waxing eloquent on the independence of the judiciary on the floor of the House. Opposition member of parliament Mangala Samaraweera, as a frontliner of the Kumaratunge administration, was very much part of the monstrous happenings subsequent to 1999 when rulings were given according to political dictates, benches were conveniently fixed, files were thrown by former Chief Justice Sarath Silva at lawyers appearing before him and counsel, including former Attorney General, the late Mr KC Kamalasabeyson, were abused when they evinced opposition in any way whatsoever.

For every sad whimper that the United National Party (UNP) and its constituent allies, now makes against the subversion of the judiciary, they have to point the finger back at themselves. In 2001, when the coalition UNP government came into power under the banner of the UNF (United National Front), they had a golden opportunity to right the wrongs of the past. Instead, it played politics and listened to party lawyers who were more occupied with safeguarding their practice and their pockets than with abstract theories of independence of the judiciary. Ultimately the UNF itself was, quite pleasurably, crucified by that very same politics.

The stuff that classic comedy is made of

On another related issue, we see an equally amusing farce being played out in this week's furore over the resolution(s) being passed by the Bar Council of the Bar Association in regard to the United Nations Secretary General's (UNSG) appointment of an advisory panel to advise himself on accountability related issues on Sri Lanka. First, we are apprised of a lamentably intemperate, ill worded and clumsy resolution that, inter alia talks of ostracizing any person who cooperates with the UN Panel, much on the same lines as the Defence Secretary's threat not so long ago, that traitors will be hung. Then later, we are informed of an 'amended' resolution which takes out this element of 'ostracizing' and is phrased, at least at the minimum, in more legally palatable language. Such is the stuff that classic comedy is made of.

The Bar Council should be asked as to why indeed it thought fit to bestir itself from its slumber in this instance and not, for example, in respect of highly problematic issues such as the formerly proposed unlimited terms for the Executive Presidency, the constitutional reforms in general, (apart from going the way of the UNP and appointing committees), or the intention of the administration to discard the 17th Amendment or the exertion of Presidential authority over the state prosecutor? The list indeed goes on. Where is the equal promptitude of the Bar in responding to these issues?

Looking after our own accountability

In any event, even its amended resolution, which presumably we should accept as the final unless there are even further 'amendments', is worthy more of a Village Council resolution rather than that of the primary professional association of lawyers in this country.

Apart from denouncing the UNSG panel, the resolution piously calls upon the government to investigate, inquire and prosecute perpetrators of violations under Sri Lankan law.

But surely is not the Bar itself very aware of the fact that it is precisely those failures in accountability in the first place that has led to these matters being agitated in the halls of the United Nations? Is it possible to expect accountability and justice to be secured when the basic framework of the Rule of Law is so systematically undermined? Would it not have been incumbent on the Bar to acknowledge these failures of justice and to call upon the government to take speedy steps to redress the democratic deficit? Are we to assume that the Bar is deaf, dumb and blind to these concerns, in regard to which responsibility must not be vested with this administration alone but with all previous administrations?

Hypocrisy in international realpolitk and the politicized nature of the office of the UNSG are commonly accepted matters. We should be concerned less about this and more about our own accountability. Where is the pressing responsibility of the Bar on this? These are salutary questions indeed for the public in this country to ponder on.