The latest attempt to curb the independence of the judiciary has been fearlessly criticised by a media itself under attack. Nupur Basu highlights the tussle in the island nation.
| by Nupur Basu
( January 17, 2013, New Delhi, Sri Lanka Guardian) The first ever impeachment of a Chief Justice of the Sri Lankan Supreme Court by a ruling party on January 13 has thrown the island nation, already wracked by years of civil war, into a mega Constitutional crisis.
Three days after Sri Lanka’s first woman judge was unceremoniously removed from her post, Dr Shirani Bandaranayake wrote in an article on January 15:
“I am the 43rd Chief Justice of the Democratic Socialist Republic of Sri Lanka. I stand here before you today having been unjustly persecuted, vilified and condemned. The treatment meted out to me in the past few weeks, was an ordeal no citizen, let alone the Chief Justice of the Republic should be subjected to.
In the circumstances, in my country which is a democracy, where the rule of law is the underlying threshold upon which basic liberties exist, I still am the duly appointed legitimate Chief Justice. It is not only the office of Chief Justice, but also the very independence of the judiciary, that has been usurped. The very tenor of rule of law, natural justice and judicial abeyance has not only been ousted, but brutally mutilated. I have suffered because I stood for an independent judiciary and withstood the pressures. It is the People who are supreme and the Constitution of the Republic recognizes the rule of law and if that rule of law had prevailed, I would not have been punished unjustly.”
It is significant that her public defence comes in the form of an article in a leading newspaper in a country where the media has been shackled and persecuted for critiquing the government.
The Chief Justice of Sri Lanka was evicted from office by the government despite two superior court rulings against it. Along with the judiciary and the Bar Association that has opposed the impeachment, the Sri Lankan media which has been facing acute fire and censorship in recent years, has also rallied with the judiciary and critiqued the Mahinda Rajapaksa regime on this issue. Like the open letter that the ousted Chief Justice has written in the Colombo Telegraph, much of the commentary and reportage, ironically, is being carried out in the tightly regulated media in Sri Lanka.
It is said that since 2005, 12 journalists have been killed in the island nation while many more have had to flee the country for fear of being killed. Both media and judiciary, in a sense, have been the eyes and ears of the government, that has come in for severe criticism for violations of human rights. The award-winning Channel 4 documentary Sri Lanka’s Killing Fields on the final weeks of the civil war and books like Still Counting the Dead by British journalist Frances Harrison have highlighted the gross violations to the world.
“I think there's been a bit of a disconnect between those who follow the story blow by blow inside Sri Lanka and instinctively understand the political importance of a clash between the judiciary and the executive and its consequences for rule of law – with those outside who see the story at face value as an issue of whether or not the Chief Justice is guilty of corruption. It's not an easy story to report because its quite dry and legalistic and complex and about procedures but also incredibly important. What few give a sense of is how this is a bit of a turning point for the worse for people in Colombo who had hoped things would improve after the end of the war in 2009. But to me it's fascinating that the deaths of up to possibly 70,000 people in 5 months and the commission of crimes against humanity didn't cause waves in the same way as the mistreatment of one woman. In a sense it shows a profound divide in mindsets that lives on long after the war." Frances Harrison, author of Still Counting the Dead told the Hoot.
But many in Sri Lanka see this impeachment as the final straw.
”We have now crossed the divide from a flawed democracy to open dictatorship,” human rights lawyer and media columnist Kishali Pinto-Jayawardena told the Hoot from Colombo. In an opinion piece by Kishali Pinto-Jayawardena titled Democracy Mourns For Judgment Fled To Brutish Beasts in the weekly Colombo-based Sunday Times, the author writes: ‘The whip of dictatorship has been cracked over the heads of all Sri Lankans. This is the final abandonment of decades of even dysfunctional democracy.”
Describing the impeachment as ‘the Government’s pyrrhic victory’ the author asks: “Henceforth, in what manner are Sri Lankan judges supposed to preside over their courtrooms with dignity? In what way can lawyers advocate the law with heads held high, what will law teachers be able to teach in the classroom and how will analysts in good conscience examine Sri Lanka’s conformity with the Rule of Law?”
According to Jayawardena, “the LTTE leader the late Velupillai Prabhakaran achieved in death through the monumental follies of ‘Dharmishta Sinhala’ leaders, what he could not accomplish in life.” “With the Commonwealth and the world staring in helpless bewilderment at the ruins of a once proud judicial system, we have proved our unfitness for democracy in no uncertain measure. Reports of commissions on lessons learnt and reconciliation may now firmly be relegated to the dustbin.”
Her final nail in the coffin came with the words: “This is the leadership which promotes political opportunism, thuggery and greed, exposing Sri Lanka to the world as lacking common decency, let alone conformity to law. This is the leadership that took root in our midst much like a monstrously destructive growth, first with the 18th Amendment and then with the spreading of tentacles into every area of government. Rather, full responsibility for the abyss that we have fallen into, lies fairly and squarely on the shoulders of the Mahinda Rajapaksa Presidency itself.”
Many other columnists echo Kishali’s sentiments and refer to the ‘suicidal leadership’ whose very accountability for mass killings of citizens and its clampdown on judiciary and the media have made it a target of attack by democratic forces in the world. The opposition United National Party has been totally ineffective and that is what has made the judiciary and the media, the only true critics and adversaries of the present Rajpaksa regime.
In another article titled ‘The Buck Stops Now With Mr President’, a journalist writes: “The incessant rains in many parts of the island and the resultant floods, deaths and destruction; the medieval execution of a young housemaid in Saudi Arabia; the assassination of a local level ruling party councillor and the suspicion revolving around a Government Minister in that murder; sand in your sugar purchased from a Government wholesale establishment; and the surreptitious passage of the controversial Divineguma Bill into law have all been overshadowed by the events surrounding the impeachment of the Chief Justice.
The writer elaborates: “Even in the Mother of Parliaments, the House of Commons in Britain, the supremacy of Parliament is not entirely absolute as it was in years gone by. Statutes on human rights, devolution and Europe have seen that supremacy decline. The blame for the seemingly unwarranted triggering of this constitutional crisis between the Judiciary and the Government must clearly be placed at the doorstep of the latter. The indecent hurry to get rid of the Chief Justice, throwing even any pretence of a proper inquiry against her to the winds, was a clumsy exercise that did Parliamentary democracy no favours.”
In an article titled ‘Crisis in Sri Lanka’, a journalist observes: “Colombo seems to be enacting a scene from Islamabad’s yesteryears. The sacking of a top judge in Sri Lanka has parallels with the Constitutional crisis that ripped Pakistan and resulted in chaos and misgovernance. Chief Justice Shirani Bandaranayake’s dismissal is being contested tooth and nail by the judicial community, and is likely to act as a source of political instability in the days and weeks to come. This is President Mahinda Rajapaksa’s second political assault after successfully sidelining his opponent and former chief of army staff, Sarath Fonseka, who underwent court martial on the charges of abuse of power and misconduct. It, however, remains to be seen what stance the deposed Chief Justice takes in due course of time and what impact it bears on the fragile political culture of Sri Lanka after decades of civil war, bloodshed and destruction.”
In a citizen journalism website Groundviews run by the Centre for Policy Alternatives in Colombo carried innumerable columns with headlines like: ‘Impeachment Misadventure and the Advent of Spring in Sri Lanka’, ‘A Legal Prime: The Impeachment of the Chief Justice in Sri Lanka’, ‘Can Anti-corruption Campaigners Justify Impeachment of the Chief Justice?’
The international media too has picked up the story well. But Fred Carver, Director, Sri Lanka Campaign, told the Hoot of the contradictions: “There has been some good coverage, notably in the New York Times, but often the media seem to miss the nub of the story: the clear political motivation behind the impeachment, the fact that executive and judiciary are at war over this, and the intimidation and assaults on judges and lawyers. It is also noticeable how the coverage does not join up. So the very same New York Times which wrote about the impeachment published a list of "the 46 places to go in 2013" which included a tourist resort built by the Sri Lankan government after the military had forcibly cleared fishermen from the area."
It is also not as if all media analyses has been critical of the government. The state media in Sri Lanka, which functions almost as an organ of the Information Ministry, celebrated the impeachment as the right step in the anti-corruption campaign and went to the extent of saying that “Sri Lanka can be proud of such an impeachment.”
On January 15, a former Attorney General, Mohan Peiris, who is known to be very close aide of Mahinda Rajapaksa, has been nominated as the new Chief Justice. “He has a shocking record as in the late 2011, when he blatantly lied to the United Nations Committee Against Torture (UNCAT) on the disappearance of web cartoonist Prageeth Ekneligoda. He had maintained that Prageeth had fled overseas as a refugee. Later, however, he was forced to admit that he had lied at the UNCAT when questioned at a later domestic inquiry” said a Sri Lankan journalist on condition of anonymity.
In a recently released report published by the International Commission of Jurists
‘Authority without Accountability: The Crisis of Impunity in Sri Lanka’, documents how, and why, it has become nearly impossible for people who have suffered serious violations of their human rights to receive justice in Sri Lanka. “Recent attacks on judicial officers and judges only highlight the systematic erosion of accountability mechanisms.”
It is the first in a series of national studies in South Asia examining ‘Authority without Accountability’ in South Asia. It calls on the government of Sri Lanka to respect its international obligations to investigate human rights violations; take appropriate measures in respect of perpetrators of such violations, bringing those responsible to justice for violations constituting crimes through prosecution and the imposition of penalties commensurate to the offence; provide victims with effective remedies and reparations for their injuries; ensure the inalienable right to know the truth; and take other necessary steps to prevent recurrence of violations.
Similarly, the Media Reform Lanka Initiative which is looking at the issue of media freedom and law in Sri Lanka work on media co-authored by Kishali Pinto-Jayawardena (http://mediareformlanka.com/) highlights the Restrictions on Freedom of Speech in Emergency Law Provisions. It urges that:
• Governments to refrain from including definitions of prohibited activities that are vague, ambiguous and imprecise in emergency laws which lead to a chilling of the freedom of expression and information. For example, the now lapsed Emergency Regulations 2006 created the offence of engaging in ‘terrorism’ or ‘acts of terrorism’ (Regulations 6 and 20) and criminalises certain activities, transactions and communications with persons or groups committing terrorist offences (Regulations 7, 8 and 9).
• Refraining from restricting freedom of expression in overbroad ways, such as the prohibition of possessing or distributing information ‘prejudicial to national security’ with the extent of that prohibition undefined, powers of prior censorship and the criminalisation of incitement to overthrow the government. Examples: as follows
• Regulation 9 of the Emergency Regulations 2006 made it a criminal offence, punishable by up to 10 years imprisonment to ‘provide any information which is detrimental or prejudicial to national security’ to anyone engaged in ‘terrorism’ (as defined in Regulation 6).
• Regulation 18 (1) (vi) of the EMPPR 2005 enabled the Secretary to the Minister of Defence to make an order imposing upon a person restrictions on association or communication, and in relation to ‘dissemination of news or the propagation of opinions’, to prevent that person acting ‘in any manner prejudicial’ to national security, public order or the maintenance of essential services.
And many similar provisions that tend to shackle media independence in Sri Lanka.
Addressing the Sri Lankan Parliament, Tamil National Alliance MP Mathiaparanan Abraham Sumanthiran warned the Rajapakse government: “I break from tradition and address the house in a black coat and black tie because it is a Black Day in Sri Lanka. We won’t allow you to let the judiciary ‘go to hell’... you are conspirator against the country and the government.’
There is, however, a thundering silence from the Indian government on this issue. There has already been criticism of this in the media in Sri Lanla. The Indian media too, barring a few newspapers, have ignored the developments in Sri Lanka, busy as it is with the Indo-Pak border skirmishes and the Pakistan Supreme Court’s directive to the Prime Minister to step down on charges of graft.
Whatever happens in the island nation in the coming weeks and months due to this impeachment, the debris is sure to fall on India.
Nupur Basu is an independent journalist and award - winning documentary film maker. Courtesy: The Hoot
