| by Kishali Pinto-Jayawardena
( October 21, 2012, Colombo, Sri
Lanka Guardian) There
is little doubt that the casual dismantling of Sri Lanka’s democratic
institutions, as much as a pack of cards is routinely shuffled by seasoned card
players, calls for deeply reflective thinking rather than shotgun reactions.
Necessity for a collective
cathartic process
Indulging in outbursts of fury
against the administration and predicting regime change, as if the structure of
authoritarian rule that has been so carefully built post war can be destroyed
in the twinkling of an eye as it were, may be personally satisfying but this is
only to fool ourselves.
If change does indeed take place,
this needs to be happen through a solid and soberly rationalised understanding
of how Sri Lanka’s crisis of democracy has come about and to a large extent,
accepting that the blame is also ours.
The time has come for a great
collective call by Sri Lankans across religious, ethnic and societal
distinctions that it is indeed ‘mea culpa, mea maxima culpa’. Indeed, this
country’s purported intelligentsia needs to take this call very much to heart.
It is only through this collective cathartic process that the country can be
brought back to the democratic path, even if this may happen only decades down
the line as seems very much the case presently.
The similes are ironic if not
entirely appropriate. In 1999, when former Chief Justice Sarath Silva was
appointed as the head of the judiciary by his onetime personal friend Chandrika
Kumaratunga, bypassing one of Sri Lanka’s steadfastly rights friendly judges,
the late Justice Mark Fernando, many were beguiled into dismissing dire warning
signals for Sri Lanka’s judicial institution.
Within a disastrous decade, the
authority of Sri Lanka’s Supreme Court had been irretrievably undermined by a
spate of judgments determined on personal or political considerations and
characterised by unrestrained judicial autocracy to the extent of sentencing a
lay litigant to jail for contempt of court. This unfortunate individual had
persisted in citing the former Chief Justice as a respondent in an application
and also resorted to talking too loudly in open court when pursing his
application. Books and files were thrown at senior lawyers by the former Chief
Justice, contempt of court was frequently threatened. The absurdity of it all
was that these purportedly eminent counsel took the abuse lying down.
The truth about ‘Helping
Hambantota’
These judicial aberrations that
detracted from public respect for the Court are well documented and need no
repetition here. Interestingly, this week’s admission by the former Chief
Justice, who is now a vociferous supporter of the opposition, that he delivered
the infamous verdict in the Helping Hambantota case ‘expecting that Mahinda
Rajapaksa in turn would safeguard the rights of the other people but it is not
happening today’ (see Daily Mirror, October 16, 2012) merely symbolises the
general pattern of law and justice being subordinated to political preferences
at that time.
The Helping Hambantota decision,
(Mahinda Rajapakse v Chandra Fernando, IGP and others, SC(FR) No 387/2005, SCM
27/03/2006), as much as the equally infamous decision in the Singarasa Case
(Nallaratnam Sinharasa v Attorney General and Others, S.C. SpL (LA) No. 182/99,
SCM15.09.2006) threw the law into tremendous disorder but lawyers and academics
shied away from robust critiques due to the immeasurable fear that they had of
contempt powers being used against them. In the Helping Hambantota Case,
several absurdities predominated in the judgment, not the least being the
former Chief Justice’s emphasis that a first information should be lodged at a
police station rather than at the police headquarters. This was in the context
of an opposition member of parliament lodging his complaint against the alleged
misappropriation of money by then Prime Minister Mahinda Rajapaksa at the
police headquarters. One may have been led to infer therefore that if the
complainant had lodged his complaint at an ordinary police station, the Court
would have been kinder to him? Such satire may be forgiven as it is infinitely
irresistible in the context of that case.
Moreover, the virtual veneration
accorded by the Court to the Secretary to the Prime Minister (currently the
Secretary to the President) in accepting his word that the moneys had been
dealt with properly notwithstanding the central impropriety of such public
moneys being deposited in a private fund, was striking. For the idealists among
us who would have, contrary to stubborn reality, tried to grapple with the
legal logic behind this judgment, it is no doubt be a relief to find the former
Chief Justice now explaining precisely as to why he handed down that judgment.
Incongruous contradictions between theory and practice
This decision is also notable for
other reasons, most particularly as illustrating the insidious politicization
of the Attorney General’s Department. At the time that the initial complaint
against then Prime Minister Mahinda Rajapaksa was lodged, there was open
hostility between then President and head of the Peoples Alliance, Chandrika
Kumaratunga and her Prime Minister. The fundamental rights petition by the then
Prime Minister to the Supreme Court challenging the criminal investigation
being launched against him (with the blessings of the then President) was
during that turbulent period. What was amusing was the spectacle of the
Attorney General resisting interim relief being granted by the Court in that
fundamental rights case prior to the elections but deciding “not to continue”
with the case after the election of the petitioner as Executive President of
Sri Lanka. The reason as to why the Attorney General ‘did not wish to continue’
after the elections was apparently upon “further material” being submitted to
court which was, however, not disclosed.
Now, we see the former Chief
Justice campaigning for good governance and the abolition of the Executive
Presidency and feeling so complacent to state his reasons for handing down the
Helping Hambantota decision in a public forum despite the same terribly
incongruous contradiction that it poses in regard to what is meant by impartial
justice. Making this point is necessary not to emphasise the personal
peccadilloes of Sri Lanka’s most controversial Chief Justice since independence
but to underscore the nature of our own society and our own media which greets
such statements as a matter of course, gives them publicity and allows the
makers of such statements to preach good governance as much as if there is no
fundamental contradiction between the two. This is where the analysis should be
directed to and this is where the outrage should arise in regard to the
question of what we mean by democratic governance.
As much as the concept of an
independent judiciary disappeared proverbially into thin air during 1999-2009,
immense wonder was felt by many among us at the frivolously easy manner in
which one man was able to virtually destroy a once respected institution
without so much as a say so. In particular, the silence of the legal
intelligentsia on justice being rendered a mockery was remarkable. Further,
this was looked upon, if at all, as a problem for the Bar and for legal
professionals as if the value of an independent judiciary was not essential for
the continuation of democratic life. Now, as we look upon unprecedented
happenings such as political mobs attacking a court house with impunity, the President
(through his Secretary) calling the Judicial Service Commission for discussions
ostensibly on the budget allocations and the Secretary of the Commission being
pistol whipped while waiting in his car to take his children home, it may be
apt to remind ourselves of the genesis of this disaster that has befallen us.
Facing the nature of the beast
The simile is therefore logical
and quite consequential. This Presidency’s destroying of the country’s
democratic institutions was accomplished as easily and as airily as Sri Lanka’s
judiciary was subverted. And as much as many were silent when the judiciary was
subverted, there were many who virtually gave the President a blank cheque to
do what he would with the country in the fervor of winning the war against the
Liberation Tigers of Tamil Eelam in May 2009. Calls for restraint fell on deaf
ears. The 18th Amendment was welcomed with a shrug and a snide comment. The
17th Amendment’s destruction was looked upon as inevitable. Mea culpa should
indeed be our most fervent cry.
It is good therefore that public
opinion, as expressed by several individuals and groups, is to the effect that
the crisis facing the country during the past weeks in relation to the
intimidation of the Judicial Service Commission and the attack of its Secretary
must be looked at dispassionately. The responsibility of the Bench and the Bar
in contributing to the exceedingly unfortunate situation in which it finds
itself must indeed be conceded.
Certainly there should come a
time in every individual’s life when personal ambitions and glories should
yield to the greater good. This is so when the democratic survival of a country
in which one holds citizenship is in issue. This time has now come for judges
and judicial officers as well as all of us who possess a basic conscience, to
examine the nature of the beast that stares at us, in our faces. Assuredly, we
ignore to do so at our own peril.
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