| by Kishali Pinto-Jayawardena
( December 23, 2012, Colombo, Sri Lanka Guardian) As Sri Lanka heads into a New Year made dangerously
uncertain by the precipitation of the worst constitutional crisis since
independence, mindless revelry needs to be replaced by this Government’s sober
rethinking of where it wants to take this country and its people.
Is it down the road of quasi-dictatorship pitting itself with an
increasingly angry and mutinous populace, with the courts and the legislature
in an open clash or is it to step back from the precipice that yawns before us?
Wise reflection is therefore needed even though such calls to sobriety
may be but calls in the wilderness. The alternative course of action may lead
to consequences that are too monstrous to contemplate.
Monstrous consequences of adverse actions
Concerns arising from this week’s shooting incident outside the house of
the Bar Association President as well as threats issued to other lawyers
involved in the anti-impeachment struggle cannot be assuaged by a visit of the
President or empty promises to investigate.
These assurances have become ludicrous given legion past incidents where
no perpetrators have been apprehended. The attackers of the Secretary of the
Judicial Service Commission as well as those involved in the attack on the
Mannar Magistrate’s Court remain at large.
This Friday, in response to a writ petition filed by the Chief Justice
against the adverse findings of the majority government members of the
Parliamentary Select Committee, the Court of Appeal issued a stinging rebuke to
the Government. As much as a previous order by the Supreme Court stopped short
of issuing a stay on parliamentary proceedings, the Court of Appeal also
refrained from granting interim relief but warned in no uncertain terms that
any steps taken in consequence of the parliamentary findings would be void if
the Court finds it appropriate to grant writ at the conclusion of argument.
In assuming the power of judicial review to examine the plea brought by
the Chef Justice, the authorities were adjoined by the judges to ‘advise
themselves’ to refrain from acting in derogation of the rights of the Chief
Justice until the final hearing. Moreover, the Court reminded the Government
that it was its legal obligation to issue notices on the Members of Parliament
cited as respondents in the petition in order to enable them to put forward
their point of view.
Greater good of the country
These are measured judicial views that ought to be hearkened to. The
immediate response by Parliamentary officers and by some government ministers
that they would disregard this judicial order was unsurprising. However, this
view should be rethought for the greater good of the country.
Meanwhile vituperative rhetoric peddled by government propagandists to
confuse the discussion and to muddle the primary issue of justice not only
being done but being seen to be done to the Chief Justice, needs to yield to
commonsense and rationality.
Some of these misconceptions are indeed laughable. One prominent
allegation, for example, is that advocates leading the anti-impeachment
struggle are the very same as those who pressed for the impeachment of retired
Chief Justice Sarath Silva some years ago. This is a ridiculous canard. On the
contrary, chief actors in this drama (including members of the legal team of
the Chief Justice) certainly did not take such fiercely consistent views in the
context of the investigation of the misconduct of retired Chief Justice Silva.
Excepting for a few dissenting voices at that time, the legal community itself
was largely silent. Now, ten years down the line, it is heartening that, at
last the Bench and the Bar has realised what is at stake for its own survival.
A more compromising but still inaccurate view put forward by some is
that the Chief Justice’s supporters see her as an angel whilst those who are
against her, paint her as the devil. This depiction of the extreme is also not
correct. Anti-impeachment contenders only insist that the Chief Justice ought
to be given the right to a fair inquiry. Surely is this something that Sri
Lanka has to debate so ferociously at the expense of the country’s good name?
To argue this point is not to contend that the Chief Justice should not
be subjected to any inquiry at all. As a friend queried from me the other day
‘do you see the Chief Justice as blameless?’ My answer to this question was
short and to the point. ‘No Chief Justice since 1999 can be considered as
blameless in regard to the current plight of Sri Lanka’s judiciary.’ On
Saturday, former Justice of the Supreme Court, CV Wignswaran put the matter
very well when speaking at the meeting of the Judicial Services Association and
after dwelling on the evils of the 18th Amendment, he reminded that ‘honest
reflection’ shows that the judiciary itself played a part in the gradual
aggrandizement of the executive.
Redeeming a forsaken courage
The Chief Justice’s admonition at this same meeting was that sitting
judges should stay out of politics. Certainly when the judiciary becomes
politicised internally, it is worthless talking of ideals and principles. What
needs to be done is now to save what we have left and to painfully work back to
regain what we have lost. Perhaps that task may be impossible. Yet we need to
try. In that process, educating the ordinary citizen in regard to the value of
an independent judiciary may be insuperably difficult when the practical
meaning of that word has been lost to us for the past so many years.
But it is imperative that this is done. Otherwise, if the
anti-impeachment struggle is merely seen as an abstract clash between the
judiciary and the legislature/executive, then its sustainability will
inevitably be doubtful. The next few months will prove these truths in good
measure. But for the moment and for the first time in years, we can rest
assured that this Government has been taken aback at the ferocity of the
opposition that it has seen so far. At the closing of the old year, these slim
victories will suffice.
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