No compromise with Truth and Justice in the Rule of Law

| by Shanie

"Then dawns the Invisible; the Unseen its truth reveals,

My outward sense is gone, my inward essence feels,

Its wings are almost free – its home its harbor found,

Measuring the gulf, it stoops and dares the final bound.

O! dreadful is the check – intense the agony –

When the ear begins to hear, and the eye begins to see

When the pulse begins to throb, the brain to think again

The soul to feel the flesh, and the flesh to feel the chain.

Yet, I would lose no sting, would wish no torture less;

The more that anguish racks, the earlier it will bless;

And robed in fires of hell, or bright with heavenly shine,,

If it but herald death, the vision is divine!"

- Emily Bronte (1818-1848J : The Prisoner

( November 3, 2012, Colombo, Sri Lanka Guardian) Aung San Suu Kyi was awarded the Nobel Peace Prize in 1991. But she was under house arrest in her native Myanmar at that time and was unable to accept the Prize in person. That opportunity came over a decade later. Earlier this year she was in Oslo to deliver her acceptance speech. Burma, now Myanmar, she said, was a country of many ethnic nationalities and faith in its future can be founded only on a true spirit of union. Since we achieved independence in 1948, there never has been a time when we could claim the whole country was at peace. We have not been able to develop the trust and understanding necessary to remove causes of conflict, Her characterisation of Burma was in many ways similar to the that of Ceylon, now Sri Lanka, hat also achieved independence about the same time.

Are we not still guilty, if to a less violent degree, of recklessness, of improvidence with regard to our future and our humanity? War is not the only arena where peace is done to death. Wherever suffering is ignored, there will be the seeds of conflict, for suffering degrades and embitters and enrages.

She also made a reference to the World War which also has a similar relevance to the insurgencies that our country has faced and the brutal suppression of those insurgencies. The First World War, Suu Kyi said, represented a terrifying waste of youth and potential, a cruel squandering of the positive forces of our planet. The poetry of that era has a special significance for me because I first read it at a time when I was the same age as many of those young men who had to face the prospect of withering before they had barely blossomed. A young American fighting with the French Foreign Legion wrote before he was killed in action in 1916 that he would meet his death:  "at some disputed barricade;" "on some scarred slope of battered hill;" "at midnight in some flaming town." Youth and love and life perishing forever in senseless attempts to capture nameless, unremembered places. And for what? Nearly a century on, we have yet to find a satisfactory answer.

Are we not still guilty, if to a less violent degree, of recklessness, of improvidence with regard to our future and our humanity? War is not the only arena where peace is done to death. Wherever suffering is ignored, there will be the seeds of conflict, for suffering degrades and embitters and enrages.

Suu Kyi’s lament is so very true, particularly in the context of Sri Lanka. The polarization of our society, the lack of democratic governance, lawlessness and increasing violence in all areas, the intolerance of dissent and our inability to understand another person’s differing ideas and beliefs are, as Suu Kyi says, degrades us and sows the seeds of further conflict. It is not only the political rulers who are responsible for this state of affairs. All responsible members of our civil society are equally culpable. The majority turned a blind eye to the assaults on democratic freedoms. When journalists like ‘Taraki’ Sivaram, Lasantha Wickrematunge, Prageeth Ekneligoda and political opponents like Joseph Pararajasingham were killed or went missing, there was hardly a whimper from the political leaders who preach democracy and socialism from political platforms. They continued to warm their seats in the governing coalition. When the 18th Amendment was presented in Parliament, their conscience was not pricked when they shamelessly raised their hands to include it as part of the Constitution.

Eighteenth Amendment

When the Eighteenth Amendment took away many of the democratic safeguards and vested dictatorial powers on the Execuitive. The Judiciary had an opportunity to strike it down; the media and civil society an opportunity to make a strong protest. The principal opposition political party, by some curious unexplained logic, found it expedient to keep away from Parliament. Was their leader living in a dream world believing that he could win a future election and that it would be nice to enjoy dictatorial powers? It seems only now that all these arms of civil society realize the disaster that was the Eighteenth Amendment. But it appears too late now to save the country from an arrogant governing coalition which is driving us down to becoming a failed state.

The Judiciary, the Media, the Civil Society and the legislators who failed to challenge the Eighteenth Amendment are therefore jointly and severally responsible for the crisis situation we are now facing. There are reports that the President has himself presided over a meeting where a decision has been made to impeach the Chief Justice. Whatever the reasons given in the impeachment motion, the country knows that this extraordinary turn of events followed the Supreme Court determination on the Divineguma Bill, the disciplinary action against a judicial officer taken by the Judicial Service Commission and the subsequent request for a meeting by the President which was declined quite correctly by the JSC. The excuse that the meeting was to discuss budgetary allocations was reportedly blown off by the Secretary to the President himself.

Impeachment of Chief Justice

For the sake of the future of the country and the rule of law, the Chief Justice should now remain firm and face the challenge of an impeachment. It will expose to the international community the state of affairs here and it will also expose to the people of this country the ways of our legislators. Initial reports say that 116 Members of Parliament have already signed the impeachment motion. It will also expose to the people of this country who among our legislators are the men and women of principle. Will the Minister of Justice continue in office or will he give the hackneyed excuse that he is holding on to office purely for the greater good of his community. Is there any hope of the dead Left being resurrected to principled life?

Secretary to the JSC

In addition to the attempt to impeach the Chief Justice, there was also the attempt to physically harm the Secretary to the Judicial Service Commission. It was he who signed the statement issued by the JSC consequent to their declining to meet the President. The conduct of the President and some of his Ministers on this has been nothing short of reprehensible. There has been a sustained attempt to vilify him. First, the president shares with the media a letter written by the father of a woman judicial officer alleging inappropriate behaviour towards his daughter by the JSC Secretary. Prior to the release of that letter no inquiry was held in terms of established procedure. Yet the President released that letter to the media. The woman judicial officer appears to have herself denied the allegations made in that letter. Sharing that letter with the media, therefore, has been unworthy of the President. Equally unworthy has been the statement by the Minister for External Affairs. a former Professor of Law, who claimed that the JSC Secretary’s original appointment was unconstitutional because he was only 30th in seniority among judicial officers. Was this former Professor of Law ignorant of the provisions of the Constitution or was he characteristically trying to pull the wool over the eyes of the people. Chapter 113 of the Constitution of Sri Lanka states that the Secretary to the Judicial Service Commission shall be appointed by the President in consultation with the Cabinet of Ministers. Which means he could be 1st, 30th or even 50th in order of seniority. Surely, the former Professor was not unaware of that? Then, of course, there was a cabinet jester who suggested that the assault on the JSC Secretary had been staged by the victim himself, just like another cabinet jester who had earlier suggested that a public officer who was publicly tied to a tree in Kelaniya had done so by himself!

Another alarming development is a report that the Government is planning to appoint a former Attorney General Mohan Peiris as the next Chief Justice. When he was the Attorney General there was a new low in the image of the Attorney General’s Department. When the disappearance of Prageeth Ekneligoda came up before the United Nations Committee Against Torture, one recalls that Peiris told the members of the CAT that there was information that Ekneligoda was living abroad. The wife of Ekneligoda had filed a Habeas Corpus application in the local courts. When Peiris made that statement at the UNCAT, she immediately sought to summon Peiris as a witness to provide more details on the information he had allegedly received. Despite Peiris’ protests, the Court of Appeal ruled that he present himself in Court and give evidence. When questioned in Court, he said he could not remember the source of his information. He had no idea if Ekneligoda was living or dead. Only God knows, he nonchalantly concluded!

This was not the first time that Peiris’ economy with the truth was exposed. He had earlier told CAT that journalist J S Tissainayagam, who was convicted and imprisoned had admitted complicity in the charge made against him in a letter he wrote to the President. He told the Committee that he personally handled the case and was aware of Tissainayagam’s acceptance of guilt. The next day, Tissainayagam released the letter he wrote to the President and nothing in that letter admitted his guilt in any crime or wrong-doing. He only apologized for any embarrassment caused to the President.

All those who are concerned with the image of Sri Lanka and with upholding the rule of law must campaign for transparency and integrity in the choice of persons for key positions. We need to ensure that such persons will have the character and integrity not to be swayed in their professional decisions by political considerations. Democratic governance demands nothing less. We must not be found guilty of recklessness and improvidence as to the future of our country.

O! dreadful is the check – intense the agony –

When the ear begins to hear, and the eye begins to see

When the pulse begins to throb, the brain to think again

The soul to feel the flesh, and the flesh to feel the chain.