On justice and the wave of a king’s hand

by Kishali Pinto Jayawardene

(October 04, Colombo, Sri Lanka Guardian) The confirming of the two court martial ‘verdicts’ against this country’s former Army Commander by President Mahinda Rajapaksa, with the consequent result that (former?) General Sarath Fonseka is now serving a prison sentence along with common criminals, is perhaps the greatest legal travesty of our times.

Dangerously simplistic justifications and the law

Let me be quite clear on the above assertion. Whatever may be the several justifications explaining why this ultimate fate had to befall the former Army Commander, it is only the very naïve or the very politically blinded who would believe that this was a proper result of the law taking its course. On the contrary, apologists of the government defend the verdicts and the sentencing on vastly different grounds, knowing full well the manifold difficulties they would come up against if they endeavoured to go by the law and strictly by the law.

For instance, it is said by some that this is a logical consequence of what the former Army Commander had threatened that he would do to the President and his family members if he had won the January 2010 Presidential elections. Therefore this is but poetic justice for entering the political race through personal vengeance due to his being slighted and for threatening his contender with far worse retribution. The President only got there first.

Yet this dangerously simplistic justification bypasses one core issue. It was precisely this unbecomingly unrestrained language resorted to by the former Army Commander in the run-up to the January Presidential elections that served, at least in part, to turn the tide of public opinion that had been growing in his favour, away from him. Garrulously inappropriate outpourings to the media included most notably the ‘white flag’ story as this is now popularly referred to. To add insult to injury, bad damage control over the inevitable repercussions thereafter, compelled in part by the disastrously ill advised prompting of the Janatha Vimukthi Peramuna, were all part of this sorry tale.

So was the association of undesirable supporters in his campaign, most notably a former Chief Justice whose naked political ambitions, (which was no secret in Hulftsdorp during his ten year term), had by then, come out into the open along with a former President who was clearly pursuing political revenge against her successor.

The aggrandizement of power and hounding a political opponent
Cumulatively and consequentially, many thinking voters who disagreed strongly with the policies of the Rajapaksa administration, still stood their ground in not shifting political allegiances, faced as they were between the bad and the conceivably even worse. The choice between the known devil and the unknown devil or angel, (as was said at that time) was an apt characterization of the dilemma that many resolved in favour of the known devil, even with all his warts and ‘satakayas’.

Whether the electoral victory that was won in January was convincing (as some commentators put it) or not is a different matter altogether. But the point was that a different standard of behaviour was expected from the incumbent President as compared to his untried and at times, frighteningly unrestrained electoral contender.

It was in this belief that many voters put their trust. Certainly it was not in the expectation of the total aggrandizement of power and the vindictive hounding of a political opponent which has now culminated in a jail sentence that is breathtaking in the chutzpah with the law has been employed selectively for reasons that have nothing whatsoever to do with justice.

So we have the first court martial entering upon its finding of the former Army Commander’s involvement in politics whilst still serving in the military primarily based on the testimony of two opposition parliamentarians who are now with the government and the second court martial finding him responsible for violating tender procedures. To this extent, by his subsequent behaviour and actions, President Rajapaksa has justified what the cynics said and belied those supporters who generously gave him the benefit of the doubt eight months ago.

Not the personality that should be in issue but the law

The point remains that, regardless of how opinions may vary in respect of the former Army Commander vis a vis his transformation from a majoritarian hawk to an infinitely more promising defender of democratic rule, the clear manipulation of the law to suit a political objective takes this discussion beyond the personality of the precise target. It should not be the person in issue but the law and only the law.
We have other recent examples of such perversions, chief among which was the indictment of senior journalist JS Tissainayagam for his writings on the travails being faced by the people of the North and East while the war was being fought, in a little known magazine.

This remained the one main reason as to why he was indicted notwithstanding a hue and cry being made about anonymous donations being made to the magazine, with the inference that these donations were terrorist funds. However, the very fact that the President ultimately pardoned him, (and expected gratitude quite incongruously in return), was the sure indication that Tissainayagam surely could not have been such a dangerous terrorist after all, as common sense would have it?

Justice in the eyes of ordinary people

Apologists for the government, (many of them writing in the private media by the way), would also have us believe that the reason as to why ordinary people are largely silent on the court martial verdicts is because they subscribe to the above mentioned theory, namely that the former Army Commander invited this consequence as a result of his getting into politics through vengeance and that he is only being treated akin to how he himself would have treated the President if he had won in January.

This is however to vastly mistake the matter. Put aside legal niceties, the ordinary man and woman in this country’s villages and towns are possessed of what simple justice means. The sheer injustice of what has occurred is not lost on them. If for example, the former Army Commander had in fact, won in January and he had put his unfortunate threats into practical implementation, he would have had to face the consequences. In the same way, the Rajapaksa administration would also have to face the consequences of its present actions, later perhaps than sooner.

Essential attributes of kingship and absence of the Rule of Law

The problem is that there is no oppositional movement that has successfully mobilized this collective sense of uneasy frustration in some cases and direct anger that many feel throughout the country. The United National Party is now definitively a lost cause. Its most recent ridiculous perambulations on nominating a member to the farcical Parliamentary Council under the 18th Amendment, further evidences this sad state of affairs. First the party boycotts the debate on the 18th Amendment on the floor of the House due to the lack of intestinal fortitude to face the same and then it nominates a member to the very body that is set up under this Amendment. What greater folly is this, one may well question?

Meanwhile we face the peculiar situation of having an erstwhile military hero lumped in the same prison basket as an alleged terrorist. As in Tissainayagam’s case, here too, we are being told that a pardon may most magnanimously be granted to the former Army Commander if an appeal is made to the President. So this is the essential attribution of kingship. Justice is for the king to dispense and for the people to succumb to, with mercy being expected only at a royal wave of the king’s hand. Where indeed is the Rule of Law in all this?