| by Kishali Pinto Jayawardena
( December 30, 2012, Colombo, Sri Lanka Guardian) This week, newspaper
reports quoted Sri Lanka’s Defence Secretary and President Mahinda
Rajapaksa’s brother accusing foreign
elements of ‘using the judiciary to destabilise Sri Lanka’ (Daily Mirror,
December 29th 2012). This is a classic instance of doublespeak. It is
abundantly clear that, rather than so-called foreign interests, it is the
Government itself which is destabilising the country. Its sheer brute force in
ramming an arbitrary impeachment of Sri Lanka’s Chief Justice through
Parliament against the express injunctions of judges and lawyers, professional
bodies and religious leaders across all major faiths speaks for itself. Are all
these individuals and bodies supposed to be part of this convenient foreign
conspiracy? Have we not played these childish games long enough?
Rule of Law replaced by Rule of Politics
These games are symptomatic not of benevolent authoritarianism but a
ruthless quasi-dictatorship which acts contrary to the greater good of the
country, contrary to the Rule of Law and contrary to the interests of the Sri
Lankan people. The genial mask has now been stripped away to expose an
insatiable thirst for power that would sacrifice all before it. As much as a
worthless gift may be wrapped in appealingly bright paper, the gilt only hides
the rotten core of a regime which has abandoned the Rule of Law for the Rule of
Politics.
Now more than ever, public opinion is needed to support a braver and stronger institution of the judiciary that would grapple with the terrible challenges of the present as well as the profound failures of the past. What is at stake is not the fate of a single Chief Justice but the judicial institution itself. Some may argue quite justifiably that, in the past decade, the very concept of the independence of the judiciary has become worthless in this country
Doubtless (barring a miracle in this season of miracles) this
impeachment will go ahead. President Mahinda Rajapaksa’s rejection of a
sensible compromise to prorogue Parliament thereby allowing the impeachment to
lapse, as suggested by the leftist parties of his coalition, was
unsurprising. If Sri Lanka had been put
first, over and above the arrogance of its political rulers, this compromise
would have been the best solution. But the fury of the administration in being
challenged by a Chief Justice that it once thought was fully amenable to its
own will, sweeps all before it. Its leftist partners are only likely to grumble
at being thus ignored, much like the uncaringly sheep-like members of the
ruling party who will follow their leader blindfolded over a cliff if that is
so demanded. The only concession to
emerge from the regime is a ludicrous proposal that even though this
impeachment will go ahead, a better procedure may be laid down for subsequent
cases.
Justifying the unjustifiable
Government propagandists meanwhile furiously work overtime to justify
the clearly unjustifiable. For example, the allegation of conflict of interest
on the part of the Chief Justice in hearing particular matters has been loudly
trumpeted. On her own part, the Chief
Justice has publicly stated that no specific objection was raised to her
hearing any case by any party or their lawyers. These matters will not be
discussed further given that they are presently before the Court of Appeal.
However some general reflections may well be appropriate at this point.
Earlier, tradition and good sense dictated that when a party to an
action objected to a judge hearing a case, that judge was obliged to recuse
himself or herself from the matter. In fact, even in the absence of an
objection being raised, a judge is supposed to abstain from sitting on the
matter in the first instance if a conflict of interest is apparent to his or
her mind. This was the old tradition of the Sri Lankan judiciary.
But significant departure from this principle was evidenced not in the
current Chief Justice’s time but during the Sarath Silva Court when objections
arising from express conflict of interest were summarily dismissed as a matter
of course throughout that ten year period. Among the plethora of such cases is
the Tony Fernando case where in defiance of all norms of propriety, Fernando’s
petition citing the Chief Justice as a respondent was heard before a Bench
presided over by the Chief Justice himself who dismissed all objections to his
hearing the case without further ado. Fernando himself, a lay litigant and
middle aged teacher of English, was then sentenced to rigorous imprisonment for
contempt of court. As may be recalled, the United Nations Human Rights
Committee quoted this case as an excellent example of judicial abuse of power
when a plea by Fernando was brought before the Committee.
Those who protest now at the incumbent Chief Justice’s alleged conflict
of interest may well be asked as to where their outrage was when far more
serious conflicts of interest were evidenced in far greater measure during that
period, when the rot actually set in so as to speak? Are these matters that
become relevant only when a Government is determined to crucify a Chief
Justice? In any event and given the specific allegation leveled against the
incumbent Chief Justice to which a full answer has been forthcoming from her,
is this really an impeachable offence?
A range of weapons being used by the government
Another canard being floated by propagandists is that the Chief Justice
is manipulating the benches of the appellate court in regard to matters
connected to the impeachment. On the contrary, it must be said that the Chief
Justice has no authority whatsoever in the listing of judges to hear particular
matters in the Court of Appeal. This is exclusively the prerogative of the
President of the Court of Appeal. It is therefore absurd to contend that the
Chief Justice is somehow capable of influencing the judicial response to the
writ petition filed by her. What other recourse does she have, when subjected
to a parliamentary process devoid of natural justice? The Court of Appeal’s
initial response to this petition was, in fact, carefully guarded and entirely
proper. It is hard to imagine as to what other order could have been handed
down in the circumstances.
But to return to the larger issue of the quasi-dictatorship that we are
inflicted with, it is simplistic to point to a newspaper on any given day and
contend that the prevalence of opposing views indicates that democracy is yet
present. Contrary views would be tolerated so long as they are marginalized and
do not pose any real threat to the regime’s political stability. Mere irritants
would be dealt with through persistently crude and vulgar attacks which we see
now while a range of weapons including targeted killings may be applied against
more serious threats. The cacophony of hysterical voices using the state media
to damn all those who advise a calmer rethink of the impeachment process amply
bear this out.
A Government devoid of respect for the law
Now more than ever, public opinion is needed to support a braver and
stronger institution of the judiciary that would grapple with the terrible
challenges of the present as well as the profound failures of the past. What is
at stake is not the fate of a single Chief Justice but the judicial institution
itself. Some may argue quite justifiably that, in the past decade, the very
concept of the independence of the judiciary has become worthless in this
country. True, the integrity of the judicial branch may have become tarnished
as a result of actions of former Chief Justices, as dwelt on in past columns.
Further, the legal process itself may be deeply flawed in terms of its archaic
rules, laws delays and general insensitivity to the litigant.
However, these entirely valid points of critique cannot be stretched so
as to say that Sri Lanka’s judicial institution itself is not worth fighting
for. Spruced up cities, the profusion of
luxury hotels and gleaming new roads snaking throughout the country cannot
disguise the fact that this is a Government devoid of any respect for law. Strategic wisdom is needed therefore for the
long struggles ahead.
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