Intimidation and violence are becoming a way of life

|  by Shanie

"When justice stands still

the supposed saviours become the enslavers,

who then will stand up to refuse for the people

when justice stands still,

the law makers become peace detractors,

creating laws meant not to ensure harmony,

but to bring woe to the masses,

when justice stands still,

they will seek to devour,

those they once vowed to protect,

justice stands still,

the eleventh plague,

not just a biblical fantasy,

but a present reality -   Tinashe Severa

(December 22, 2012, Colombo, Sri Lanka Guardian) Tinashe Severa is a relatively young man who at an early age became one of Zimbabwe’s best known and prolific writers and poets. He wrote this poem during his student days while the early revolutionary and liberal idealism of President Mugabe was turning into authoritarianism. In this poem, which is part of a longer one, Severa makes a plea for justice and peace in this unjust world of reality. In the biblical book of Exodus, there is a reference to ten plagues, ten great calamities that affected Egypt under the Pharaohs. The popular belief is that an eleventh plague will hit the world. Severa reckons that this calamity has already arrived with the rise of authoritarianism and brutal regimes in many parts of the world. That the harsh reality that many people unfortunately face under authoritarian regimes.

The government will do well to heed the appeals by the religious leaders, by civil society and all leading citizens of our country, in addition to several international organizations. The President will only be enhancing his own personal image and the image of the country if he heeds these appeals and drops the charges (which seem untenable in any case) against the incumbent Chief Justice.

Sri Lanka also seems to be descending into a country where violence is beginning to become a way of life. In the present turmoil created by the moves to impeach the Chief Justice, there has been an attempt to physically attack a leading member of the Lawyer’s Collective opposing the impeachment. A few weeks ago, the Secretary of the Judicial Service Commission was subject to a brutal daylight assault on Hotel Road Mount Lavinia. Some of the lawyers themselves have been involved in unruly conduct against fellow lawyers both in Kalutara and Colombo. This trend to settle personal and political scores through violence was set up by our politicians. Abuse and violence have not been uncommon within the chambers of Parliament itself. At the commencement of the previous Parliament, during the election of a new Speaker, parliamentarians, including present cabinet ministers, were seen physically attacking members of Parliament belonging to the Buddhist Sangha who were casting their vote for a candidate nominated by the opposition parties. One Buddhist monk had even to be hospitalised for medical attention. That trend has continued ever since both within Parliament as well as on an unprecedented scale outside.

Need for professionalism

To stem this culture of violence, our law enforcement authorities have to perform their duties as professionals and not be manipulated by politicians. Tissa Attanayake’s recent appeal to soldiers not to carry out illegal orders should not be taken as a call to mutiny but a call for professionalism within the security forces and the Police. Two recent incidents re-inforce the need for the security forces to act as professional soldiers and not as political thugs. The first was the killing of 27 warders at the Welikada Prison following a break-out. There have been allegations that some of them were taken out and extra-judicially executed. The report of an independent investigation should be released and action taken against any or all responsible for any illegal act. The other was the Army invading the Jaffna University campus and intimidating, assaulting and arresting students. The students had not done anything unlawful and the university has remained closed since then. A meaningless action by the security forces has led to the disruption of the student’s studies for weeks and there is no indication when that would resume.

The call for professionalism among the Police and security forces can however be enforced only if there is professionalism among our politicians, particularly among the government politicians. Recently, the President invited the editors of our newspapers for a breakfast meeting. The focus of the meeting was on the impeachment proceedings against the current Chief Justice. The President had invited some members of the Parliamentary Select Committee also for that meeting. The Chairman and members of the Select flouted their own order that the proceedings of the Select Committee sessions should be kept confidential; though they may be pardoned for trying to defend themselves when their unbecoming conduct at the Select Committee sessions had become public knowledge. But the explanations offered both by the President and the Chairman and members of the Select Committee were both inaccurate and untenable.

The President and PSC were wrong

The President was asked why they could not adopt the procedure for impeachment based on the Indian model as proposed in the draft constitutional bill presented in 2000 by the Chandrka Bandaranaike Kumaratunge government of which he and many members of the present government were a part. The President’s explanation was that this would have required a constitutional amendment. This is incorrect. The procedure being followed now is based on Standing Order 78A of the Parliament. To change standing orders no constitutional amendment is required.

When impeachment proceedings were held against the then Chief Justice Neville Samarakoon in 1984, Dinesh Gunawardena was one of the members of that Select Committee. He was one of three members of the opposition in that committee. These three members of the Select Committee (Anura Bandaranaike, Dinesh Gunawardena and Sarath Muttetuwegama) issued a separate report, wherein they stated: "(We) feel strongly that the procedure that Parliament finally adopts should be drafted along the lines of the Indian provisions where the process of inquiry which precedes the resolution for the removal of a Supreme Court Judge should be conducted by Judges chosen by the Speaker from a panel appointed for this purpose. We therefore urge the House to amend Standing Orders 78A accordingly." It was this procedure that was incorporated in the draft Constitution of 2000 presented by the Chandrika Bandaranaike government. The recommendation of the three opposition members also followed the objection raised by defence counsel S Nadesan that by proceeding with the inquiry under Standing Orders 78A, the Select Committee was violating Article 4(c) of the Constitution which stipulates that except in matters concerning parliamentary privileges, the judicial power of the People shall be exercised exclusively through the courts. This was the same point covered in the judgement delivered unanimously by the five member bench of the Supreme Court headed by Justice Raja Wanasundera in 1983 that the provisions of Article 4(c) of the Constitution ‘indicate an unmistakable vesting of the judicial power of the People in the judiciary established by or under the Constitution and that Parliament acts as a conduit through which the judicial power of the People passes to the judiciary.’

The Chairman of the present Parliamentary Select Committee Anura Priyadharshana Yapa also made a remark at that breakfast meeting that whereas his Committee had allowed more than one counsel for the Chief Justice’s defence to be present at the sittings, the Committee hearing the Neville Samarakoon case had allowed only one counsel. This is also incorrect. The report of that Committee states: "By letter dated 24th September 1984, the Hon Chief Justice informed your committee that he will be present at the next meeting with the following counsel, viz :Mr S Nadesan, QC, Mr N S A Goonnetille, Attorney-at-Law, Mr S S Ratnaike, Attorney-at-Law; instructed by Mr Mervyn Canaga Retna, Attorney-at-Law;

Your committee agreed to the above counsel representing for the Hon Chief Justice and accordingly the above counsel represented for the Hon Chief Justice." All four counsel were present at the sittings of that Select Committee. One can only hope that Anura Priyadharshana Yapa’s comment was a genuine error and not an attempt to mislead. Either way, it was irresponsible to make this incorrect comment without checking the facts.

Yapa has also denied that the members of his Select Committee behaved in an uncouth manner at the sittings where the Chief Justice and her lawyers were present. The non-government members and others have a different story to tell. Yapa says that the report of the proceedings will bear him out. But as The Island editorially commented reports of proceedings in a parliamentary context are always published only after they are edited. Expletives and the use of unparliamentary language are invariably deleted – if not for anything else but to preserve the dignity and decorum of Parliament. The lawyers for the Chief Justice have now filed a writ application in the Court of appeal and are reported to have included the language and gestures used at the sittings of the Select Committee, in particular by two members who are also cabinet ministers. The public will then be able to judge for themselves the truth or otherwise of this charge of using unbecoming language but also the quality of some of our parliamentarians and cabinet ministers.

Protest by Religious Leaders

The Congress of Religions is the latest organisation to condemn the manner in which impeachment proceedings have been conducted. The statement is signed by highly respected Buddhist and Christian clergy, in addition to unnamed representatives of the Hindu ad Islamic faiths. In a statement where they state that the government’s actions in respect of this case have given rise to the suspicion that it somehow or other was patently seeking a decision in its favour, they conclude:

"We cannot help thinking that this move to impeach the Chief Justice is another instance of the breakdown of law and order in the country. We publicly profess adherence to religious values, of all four major religions, and as such believe we should always work for a Dharmista society. In addition to the social and moral evils pervading our society today, the apparent assault on the freedom of the Judiciary would only add to the contradiction of that belief in real life.

If for no other reason, the moral-religious imperatives of millennia of historical evolution, driven in the main by the Buddhist ethos, should compel us to render justice to the Chief Justice, and thereby do justice to ourselves as a civilised nation. Otherwise, the country and its people will be the final losers. We call upon the Government to do just that."

The government will do well to heed the appeals by the religious leaders, by civil society and all leading citizens of our country, in addition to several international organizations. The President will only be enhancing his own personal image and the image of the country if he heeds these appeals and drops the charges (which seem untenable in any case) against the incumbent Chief Justice. If he wants to pursue the charges, then it will have to be a judicial inquiry by competent and independent judicial officers, preferably from outside Sri Lanka.

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