| by Kishali Pinto-Jayawardena
Spewing
of vile abuse against the head of judiciary
( December 9, 2012, Colombo, Sri Lanka Guardian) Nowhere in South Asia
or indeed the entire world (excepting in failed states) would a responsible
government hire thugs and party supporters to jeer and hoot at the Chief
Justice of the country while she was leaving the superior courts complex to
appear before a parliamentary select committee considering her impeachment. Yet
in Sri Lanka, this is what happened a few days ago. Nowhere in the world except
in pariah nations would government members of parliament have been allowed to
verbally insult the Chief Justice (Sri Lanka’s first woman Chief Justice at
that) and her lawyers while they were participating in the deliberations of a
select committee. Yet this is what is reported to have happened on Thursday.
Unable to bear the continuous insults, the Chief Justice’s decision to walk out
of the select committee proceedings must be commended. Her courage in facing
such an inquisition with head held high must be recognised.
This is the culmination
of a process that has brought Sri Lanka tremendous shame and lent credence to
the claims of its detractors who refer to the country as a democratic
graveyard. For the past several weeks, the Chief Justice was mercilessly
hounded by government media propagandists as they spewed vile abuse on radio
talk shows. Blatantly contemptuous placards were carried by three wheeler
drivers and lottery sellers right outside the seeming citadel of justice on Hulfsdorp
Hill. State protection was provided for all these acts.
The
government appeared to have abandoned all norms of ordinary decency befitting
treatment of a human being let alone a judge, let alone the head of the
judiciary. It appeared to have turned virtually mad in its desperate struggle
to counter what has turned out to be a huge embarrassment for it. No wonder
that judges and lawyers throughout the country rallied to the support of the
beleaguered Chief Justice, from provincial Bars as remote and diverse as
Matara, Anuradhapura, Kandy, Jaffna and Vavuniya.
It was as if with a
rush, the legal profession and the judicial service particularly in the
outstations realized the great dangers that they were in (at last) and decided
to push against the rock of executive humiliation of the judiciary with
determination.
Walkout
of the Select Committee a foregone conclusion
From the commencement
of this fiasco, the issue was less the constitutionality of the process,
(regardless of the vehement submissions made by lawyers appearing in cases
challenging the impeachment), and more the fairness of the procedure followed and
the clearly political timing of the impeachment itself.
Certainly the
impeachment procedures as constitutionally stipulated violates basic norms of
fair adjudication both domestically and on international standards. They deny
an appellate court judge even the most rudimentary rule of law safeguards
afforded to a common criminal. But in previous impeachments, convention and
good sense dictated that an unwritten line of propriety was not crossed. Through
its intemperate fury at being challenged, the Rajapaksa government has however put
paid to that past practice.
In no seemingly
democratic country would a Chief Justice be subjected to an impeachment process
distinguished by the inquiry committee’s inability to prescribe rules of
procedure for its sittings (as pointed out by its members representing the
Opposition in the public interest), its refusal to open the hearings for public
scrutiny in the interests of transparency and accountability and its reported
refusal to allow the Chief Justice’s lawyers to cross examine witnesses cited
in the documents filed against her or to allow more time for her to answer allegations
contained in a thousand page bundle of documents. Her walking out of the Select Committee proceedings
this Thursday was therefore a foregone conclusion.
No
need for a contempt law now
From 1999 to 2009, we
had a Chief Justice whose conduct in and outside Court as documented opened up
the judiciary to unrelentingly harsh public scrutiny. And as much as water
rushes out when the walls of the dam is first breached, former Chief Justice
Sarath Silva’s successors could do little but pay obeisance to the executive. It
was when the judicial tide turned as a result of one humiliation being enforced
a step too far that we saw the avalanche of executive anger being unleashed.
The Minister of Justice
has pontificated to the media this week that the government plans to enact a
contempt of court law soon. But let it be clearly said that there is now little
purpose for such a law. The primary aim of a contempt law is to protect the
administration of justice and the dignity of the courts while allowing for
reasoned and crucial debate on the functioning of the justice system. Yet the
administration of justice has already been rendered a snarling mockery and the
dignity of courts has been remorselessly stripped away by this government and
its media hounds. Day after day, the Chief Justice is attacked beyond all norms
of propriety with a government giving the full seal of its approval. A contempt
of court law has become quite redundant in this post Rajapaksa impeachment
climate as much as the concepts of justice and fairness have also become redundant.
This is undoubted.
Painful
destruction of an independent judicial system
Those who willfully
turned a blind eye to the internal politicization of the Supreme Court from the
year 1999 onwards, those who were foolhardy or blinded by their own interests
to applaud the handing of a blank cheque to this Presidency to do what it would
with Sri Lanka after the ending of the conflict and those who looked away when
the 18th Amendment was enacted, should now rue their folly and
culpable ignorance.
In previous columns starting
from almost a decade ago, predictions that this precise fate would befall the
Sri Lankan judicial and legal system if there was no course correction were
greeted with shrugs and smiles from members of the legal profession. Some
condemned these predictions as unnecessarily dire. Others were cynical enough
to say that the system had survived despite past beatings.
But now as we see a Sri
Lankan Chief Justice humiliated by common ruffians who hold the money which
they were paid in one hand while they shout slogans with their other hand
upraised, these complacent characters may well ruminate on their unfortunate
inability to recognise the warning signals. This column makes no apology for
repeatedly stressing the most coruscating lesson to emerge from this
cataclysmic upheaval, particularly for those of us trained in the discipline of
the law.
Even if new struggles
are born as a result of the ongoing inquisition cum impeachment of the
country’s Chief Justice, this is the comprehensive end of Sri Lanka’s independent
judicial system as we have known it since 1948. It is a sad day indeed.
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