| by Kishali Pinto Jayawardena
( December 2, 2012, Colombo, Sri Lanka Guardian) This week, a committed New Delhi based
civil rights advocate and incidentally a good friend, observed in a
dispassionate aside to an otherwise entirely different conversation in
that country that ‘this situation that Sri Lankans are facing regarding
the political impeachment of the Chief Justice is quite alien for us
to grasp here, even in the abstract. How could checks and balances in
your constitutional and legal system break down to that terrible
extent? Even with the war and all its consequences, how could the
centre of judicial authority implode with such astounding force?’
A juggernaut government brushing aside protests
In retrospect, these questions assume
great significance. Sri Lankan newspapers are now gloriously
resplendent with opinions of all shades and colours on the propriety or
otherwise of the impeachment process. The airing of these opinions and
the filing of court cases calling Parliament to order for a
politically targeted impeachment of the Chief Justice are certainly
necessary. However, these frantic actions remain ostrich-like in the
ignoring of certain truths. Foremost is that questioning the legality
of particular actions by this government has now been rendered
politically irrelevant. Perhaps at some point in the past, these
interventions may have had some impact. But this logic does not hold
true any longer, no matter how many learned discussions are conducted
on the law and on the Constitution.
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In the absence of popular collective protests reaching the streets which target the protection of the law and the judiciary at its core, this government will press on in its juggernaut way, brushing aside civil protests couched in the carefully deliberate language of the law, as much as one swats tiresome mosquitoes with a careless wave of the hand.
In particular, the laborious posturing
by members of the Bar, many of whom appear to have only now belatedly
realized the nature of the crisis that confronts us, are destined to be
futile if that is all that we see. In the absence of popular
collective protests reaching the streets which target the protection of
the law and the judiciary at its core, this government will press on
in its juggernaut way, brushing aside civil protests couched in the
carefully deliberate language of the law, as much as one swats tiresome
mosquitoes with a careless wave of the hand.
Three wheeler drivers marching before the Supreme Court
This immense contempt shown by those
in power for the law was very well seen recently when news outlets
reported a government orchestrated procession of three wheeler drivers
chanting slogans in support of the impeachment and marching before the
courts complex housing the Supreme Court and the Court of Appeal.
This stark fact, by itself,
demonstrates the degeneration of the esteem in which the judiciary was
once held. Such an event would have been unthinkable in the past, even
taking into account the much quoted abusing of judges and the stoning
of their houses during a different political era. There is a huge
difference between the two situations. In the past, the intimidation of
judges was carried out in the twilight of the underworld even though
the threatening message that this conveyed to the judiciary was
unmistakable. Now, political goons threatening judges parade in the
harsh glare of daylight with total impunity and total contempt.
To what extent is a judicial officer
from a magistrate to a Supreme Court judge including the Chief Justice
able to now assert the authority of the law in his or her courthouse
when such open contempt is shown for the judiciary with the backing of
the government?
Not simply harping on the past
But as this column has repeatedly
emphasized, this degeneration did not come with this government alone
though it may suit many to think so. Rather, those who expound long and
laboriously now on the value of an independent judiciary for Sri Lanka
including jurists as well as former Presidents, given that the latest
to join this chorus is former President Chandrika Kumaratunga should,
if they possess the necessary courage, examine their own actions or
omissions in that regard.
As history has shown us, whether in
the case of the genocide of the Jewish people by the Third Reich, the
horrific apartheid policies of the old South Africa or indeed in many
such countless examples around the world, a country cannot heal unless
it honestly acknowledges its own past with genuine intent not to travel
down that same path once again. It is not simply a question of harping
on the past though again, it may suit some to say so. Indeed, the
entire transitional justice experience for South Africans, even though
it did not work as well in other countries in the African continent,
was based on that same premise. It was honest at its core and was led
by a visionary called Mandela. This was why it worked (with all its
lack of perfection) for that country but did not work for others. Those
who unthinkingly parrot the need for similar experiences for Sri Lanka
should perhaps realize that fundamental difference.
Reclaiming a discarded sense of legal propriety
But there are many among us who still
believe that, magically as it were, matters would right themselves and
we would be able to reclaim our discarded sense of legal propriety.
Unfortunately however this is day dreaming of the highest magnitude.
What we have lost, particularly through the past decade and culminating
in the present where reason and commonsense has been thrown to the
winds in this ruinous clash between the judiciary and the executive,
will take generations to recover, if ever it will.
As Otto Rene Castillo, the famed
Guatemalan revolutionary, guerilla fighter and poet most hauntingly
captured in his seminal poem ‘the apolitical intellectuals’, someday,
those whom the country looked upon to provide intellectual leadership
will be asked as to what they did, when their nation died out, slowly,
like a sweet fire, small and alone.’
Castillo’s admonition about ‘absurd
justifications, born in the shadow of the total lie’ applies intoto to
this morass in which Sri Lankans find themselves in. We flounder in the
mire of the arrogance of politicians who do not care tuppence for the
law but still we cling desperately to our familiar belief of the
authority of the law though this belief has been reduced to a
phantasma. It is only when that ‘total lie’ is dissected remorselessly
by ourselves and in relation to our own actions that we can begin to
hope for the return of justice to this land.
That day, it seems however, is still
wreathed in impossibility and uncertainty. Hence my Indian friend’s
probing though casual questions a few days ago remain hanging in the
air. Undoubtedly the answers to those questions lie not in blaming the
politicians but in confronting far more uncomfortable truths about
ourselves as a nation and as a people.
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