The kind hand of presidential magnanimity

| by Kishali Pinto Jayawardene

( May 27, 2012, Colombo, Sri Lanka Guardian) The granting of Presidential pardons to targets of politicized prosecutions in Sri Lanka has now acquired a political significance which further undermines the Rule of Law in this country. These events are typically characterized by indictments being filed or other legal processes such as a court martial being initiated on extremely flimsy grounds against individuals who have incurred the displeasure of the government. Though the granting of such pardons were indulged in by previous Presidents as well, the legal process was not sought to be so diabolically engineered in a sinister pattern which has ominous consequences.

The President gives and takes away

Recent two obvious instances (as deliciously ironic as they are in other respects) are the pardoning of senior journalist JS Tissanaiyagam and former Army Commander General Sarath Fonseka. These two cases stand as eloquent testimony to the fact that all the blandishments and pleas by the government as to its bona fides in correcting its horrendous human rights record are in vain. There is a simple logic that is applicable.

Without a doubt, punishment meted out for a wrong done is purely a question of the applicability of the law and precedent. This is the time honoured test by which democratic societies are governed. In contrast, what Sri Lanka illustrates is that the President gives and the President takes it away, in the most literal sense of that term. These cases and these pardons constitute therefore an effective warning to the rest of Sri Lanka, that this would be the fate of each and every person if the administration is challenged beyond what is politically unacceptable. Therein lies the rub.

Both Tissanaiyagam and Fonseka were charged with the most heinous crimes under our law and we were witness to what can only be described as a charade of a prosecutorial and judicial process which resulted in their convictions. Now these crimes (no longer of an alleged nature since they were deemed to have been proven in a court of law) have been wished away by the kind wand of Presidential magnanimity. And all that we can see are endless paeans, even editorially in newspapers, to the generosity of a President who, as is implied, was far more forgiving where Sri Lanka's former Army Commander is concerned, if the situation had occurred in the reverse.

Critical questioning of the legal process

What nonsense is this? This giving of thanks in grateful supplication is entirely misconceived. Instead, critical questioning of the very process of trial and conviction in these cases should dominate the public discourse. Increased scrutiny of prosecutors and judges in the decision making process should become the core of discussion. In the process, it is inevitable that the weapon of contempt of court may be leveled against critics. As was reported recently, such threats had been leveled by a political supporter of this government cum criminal lawyer appearing on behalf of a parliamentarian cum drug lord of the ruling alliance receiving hospital treatment overseas.

This parliamentarian's clear involvement in the death of another party member in an unseemly brawl goes by the board while this criminal lawyer makes loud cries invoking contempt when outspoken criticisms are leveled against the legal process by the daughter of the slain politician. Such are the absurdities to which we are unwillingly subjected. In all these instances, the deep subversion of the legal and judicial process is subordinated to political interests.

These attempts to subdue public discussion of legitimate matters relevant to the administration of justice must be resisted most strongly. It is indeed a pity that despite the best efforts of civic action groups including the Bar Association during the Presidency of Desmond Fernando PC and the Editors Guild of Sri Lanka, we have not yet enacted a law codifying contempt of court so that the matter is not left to the individual discretion of a judge or made dependant on the uncouth pressure tactics of those paying obeisance to politicians.

Regardless and even with the state of the law in its presently deplorable state, it is necessary that we do not allow the debates to be co-opted by individuals whose posturings in the name of safeguarding the judicial process is so hypocritical as to be virtually nauseating. In the case of General Sarath Fonseka, though his release may amount to some welcome yeast to lighten the very heavy political dough of the opposition, it is imperative that the relevant discussions focus not on the individual but on the nature of the legal process to which he had been subjected to.

Deplorable state of constitutional rights monitors

Meanwhile, whatever may have been the motivations for this release, there is little doubt that considerable effort is being expended by the government to, at least appear to right its wrongs. Hence and amusingly enough, we had the spectacle of a National Police Commission this week vowing publicly to act impartially while in the same breath, admitting that there was little responsibility vested in it in terms of disciplinary control of police officers as a result of the 18th Amendment. As was admitted by the NPC, all it can do (similar to the National Human Rights Commission) when resistance is shown, was to report to the Parliament. This blatant contradiction in the vow of impartiality while admitting fundamental inefficacy appeared not to have occurred to the worthy members of the Commission. What does the Commission, in fact, mean when it says that it will act impartially when it cannot act effectively?

This situation was, of course, very different under the 17th Amendment to the Constitution. Then, the NPC was given the power to appoint, promote, transfer, subject to disciplinary control and dismiss all officers other than the Inspector General. (Vide 17th Amendment, Article 155G(1)(a). During its first term, when the NPC was constitutionally appointed, it prevented politically motivated transfers of police officers prior to elections. It interdicted police officers found culpable in rights violations or indicted of torture under the Torture Act No 22 of 1994. These were momentous decisions, quite unlike the sad mewling of the NPC in its current term as to its absence of power.

The jettisoning of this constitutional experiment was due purely to the anger of politicians who saw their power base being eroded. If it had succeeded, Sri Lanka's NPC would have proved to be a shining example for the rest of Asia to follow. What we have now is a shadow of its former self. And no amount of swearing to act impartially on the part of the members of the NPC as currently constituted can correct this fact. Let us be very clear about this.

An un-negotiable demand

In sum, the integrity of Sri Lanka's prosecutorial and judicial processes as well as its constitutional monitors has been seriously tarnished. Without these concerns being substantially addressed, expecting the implementation of the report of the Lessons Learnt and Reconciliation Commission in convenient portions to remedy the grave ills of the absence of the Rule of Law in Sri Lanka today is an exercise in utter futility.

For a start, the 17th Amendment to the Constitution, finetuned if it needs to be, must be brought back. This must be insisted on as un-negotiable.