| by Basil Fernando
( November 21, 2012, Hong Kong, Sri Lana
Guardian) In an article entitled 'Once judiciary is broken the Rajapaksas will
use the court to destroy every remaining right or freedom', Tisaranee
Gunasekara makes the following prediction:
If the impeachment succeeds without
wounding the Rajapaksas, that will become the judicial norm in Sri Lanka. Once
the judiciary is turned invertebrate, it too will begin to act like the current
Attorney General's Department (which was taken over by the President in 2010),
all the time. And instead of a magistrate issuing an arrest order against
Duminda Silva, a magistrate will declare him innocent, on the orders of the
Family. The Siblings and their kith and kin will decide who are guilty and who
are innocent. The courts will be reduced to pronouncing Rajapaksa judgements
and Rajapaksa sentences.
I think any thinking person should give
serious consideration to this prediction. The time that is still left to
prevent the prediction from coming true is indicated by the 'if' with which the
prediction begins.
The basic issue is as to whether soon it
will be the executive who will decide the distinction between what is legal and
what is illegal. That is whatever the executive (which has come to mean the
three Rajapaksa brothers) wishes to do will be treated as legal. We are dealing
with the Otto Adolf Eichmann view of the law. In his defence when he was tried
by a court in Israel, Eichmann took up the position that in Germany whatever
the Führer ordered was the law. Hannah Arendt, who watched and reported on this
trial, termed this as the 'banality of evil'.
That is why that 'if' is of such
paramount importance. There is still a very short time for testing the
prediction. Those few weeks are in the hands of Sri Lanka's higher courts. They
could either begin to cause the beginning of the reversal of submission to the
dictates which more or less started with the four fifth majority of the UNP and
continued with the borrowed two thirds majority of the present regime.
The legality of much of the 1978
Constitution could have been challenged by the Supreme Court at that time.
However, this document called the Constitution of Sri Lanka which, in fact, in
the history of constitutions is one that could without any hesitation be termed
a joke, was allowed to be the paramount law of Sri Lanka only because the
judiciary refused to exercise its role as the final arbiter of what is legal
and illegal within the territory of Sri Lanka. In my book, Sri Lanka Impunity,
Criminal Justice and Human Rights (2010) I devoted a whole chapter to
illustrate that the distinction between legality and illegality has been lost
in Sri Lanka.
After 31 years of the 1978 Constitution,
it is not even possible to recognize what is law and what is not. When the executive
president placed himself above the law, there began a process in which law
gradually diminished to the point of no significance. This is unsurprising. The
constitution itself destroyed constitutional law, by negating all checks and
balances over the executive. When the paramount law declares itself irrelevant,
its irrelevance penetrates all other laws. Thereafter, public institutions also
lose their power and value........When there is a loss of meaning in legality,
terms such as 'judge', 'lawyer', 'state counsel' and 'police officer' are
superficially used as if they mean what they did in the past; however, their
inner meanings are substantially changed. Those who bear such titles no longer
have similar authority, power and responsibility as their counterparts had
before, when law still had meaning as an organizing principle.
It was that failure which led to the
creation of continuous ambiguity about what is legal and illegal in Sri Lanka
in recent decades. Even things like abductions and enforced disappearances are
not clearly defined as illegal in Sri Lanka. If such acts were defined as
illegal, how many would now be in jail for committing that crime? This is just
one example. How many other things which would have been considered illegal in
a country that has the rule of law came to be considered as legal? The list
would be a very long one.
The proverbial last minute
Still, all the space was not lost. At
least an appearance of courts exercising some authority has still remained. The
recent judgements on the Diviniguma Bill and the Criminal Justice Provisions
Bill are just some examples which showed that still there is room for the
judiciary to act as the arbiter of what is legal and illegal.
It is that which has been challenged now
by way of the impeachment. The procedure under which the impeachment
proceedings are to be held under the Standing Orders as they stand now is
clearly unconstitutional. If through this unconstitutional process the Chief
Justice is removed with that the power of the courts will be finally removed.
The test is as to whether the courts
will exercise their authority against an illegal process for the removal of the
Chief Justice and thereby retain in their hands the final power of deciding
what is legal and illegal within the territory of Sri Lanka. The Indian Supreme
Court has clearly kept their authority and, in the last few years, the Supreme Court
of Pakistan also has reasserted its power to be the final arbiter of declaring
what is legal and illegal within their national territories.
A court that does not exert the power it
has will have no one to blame but itself. But there is still time before that
'if' may come true. So we are in that proverbial last minute.
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