By Dharisha Bastians –

Dharisha Bastians

About a month before former army chief General Sarath Fonseka’s prison sentence was commuted and he was released, whispers abounded about the appeal his lawyers had filed against the controversial White Flag dissenting judgment in Sri Lanka’s Supreme Court.

On November 18, 2011 two judges of a High Court Trial at Bar found Fonseka guilty of ‘propagating a false rumour’ in violation of emergency regulations and the Criminal Procedure Code. The dissenting judge was W.T.M.P.B. Warawewa who went on to make a few declarations both from the bench and at public occasions about dispensing rulings without malice before he retired from judicial service a few months after the verdict was given. Judge Warawewa was originally set to retire in January 2011, but was retained by the Attorney General’s Department to allow him to hear several ongoing cases in his docket, including the Fonseka White Flag case.

The five-judge bench of the Supreme Court, which included Chief Justice Shirani Bandaranayake, unanimously decided that Fonseka could be admitted to Nawaloka Hospital for treatment, under the care of his physician. The Appeal was set to be taken up on May 31. Fonseka’s legal team had also filed a bail application, which if granted, would mean that he would be able to leave Welikada Prison, his first prison term imposed by the Court Martial ending on April 26. Legal circles were buzzing with news that it was very likely that Fonseka would receive bail by the Supreme Court as a prelude, as a probable overturning of the White Flag verdict, since the judgment was widely believed to be a controversial one. On May 21, President Mahinda Rajapaksa decided to free Fonseka, but reducing one of his prison terms on the condition that the former army chief withdraws his appeals and bail applications before the appellate courts. Throngs of people greeted Fonseka’s release from Welikada and his supporters sighed with relief that their hero was free at last. Once the fanfare and the first flush of freedom ended, Fonseka has found himself in a strangely isolated position, politically. Having served a prison term, Fonseka has lost his civic rights, and while he can campaign on behalf of other politicians and political parties, he can neither contest an election nor even cast a vote. Parties like the main opposition United National Party which would have jumped at courting Fonseka if the latter was in a position to contest at an election, have decided to play hard-to-get, insisting that the former army chief comes to them, and seek inclusion within its ranks. UNP Leader Ranil Wickremesinghe appears to have made it clear to party stalwarts that if there is to be a UNP-Fonseka nexus, the latter should approach the main opposition party, as opposed to the other way around.

Government insiders believe that the executive decision to pardon Sarath Fonseka was hastened on the back of trepidation that the White Flag verdict would be overturned. From a political point of view, that scenario would have certainly proved more advantageous to the former army chief, who would have seen himself cleared of all charges in the controversial case.

Other signs that there is some movement towards asserting judicial independence abound. Colombo Additional Magistrate Prasanna Alwis ordered the Criminal Investigations Department to arrest and produce UPFA MP Duminda Silva in Court, after the legislator was named a suspect in the murder of SLFP strongman, Bharatha Lakshman Premachandra in election day violence on October 8, 2011. The order came too little too late, because Silva had already by then been transferred to a treatment facility in Singapore, but issuance of a warrant for the arrest of a serving parliamentarian was in and of itself, significant.

On Thursday July 26, 2012, the Supreme Court of Sri Lanka granted leave to proceed in six fundamental rights petitions filed by employees of the Sri Lanka Mirror website, whose offices were raided by the CID on June 29, using search warrants issued, based on a repealed section of the Penal Code. Nine employees were taking into CID custody following the raid. The three-judge bench of the Supreme Court, comprising Chief Justice Shirani Bandaranayake and Justices K. Sripavan and Eva Wanasundara issued the order after hearing from deputy solicitor general Shavindra Fernando and attorney at law Saliya Peiris who was appearing on behalf of the petitioners challenging their arrests by the CID. Those observing proceedings in the highest court of the land expressed surprise at sentiments expressed by the chief justice, after the bench heard from the lawyers. The deputy solicitor general was arguing against leave to proceed, citing the defamatory and scurrilous reporting undertaken by the websites whose offices were raided by the CID. Having heard Fernando’s argument, the chief justice explained that she herself had been defamed by the websites in question but averred referring to the FR petitions that, “this Mr. Fernando, is about liberty.”

The chief justice’s use of the word ‘liberty’ is significant. Democracy, without liberty is no more than elected autocracy. Democracy that does not safeguard individual freedoms is tyranny by the majority. In the final phase of the conflict to defeat the LTTE and three years following the Tigers’ military defeat, civil liberties and fundamental freedoms continue to be gravely under threat in Sri Lanka. In a political system that is effectively broken, safeguarding liberty and the rule of law become critically important. Sri Lanka’s political leadership, plagued by partisanship and expediency, has been failing the citizen for years. But it is the erosion of liberty, whether individual or economic, and the breakdown of the rule of law that shakes the very core of a state founded on democratic ideals. This is a trend that needs to be reversed, irrespective of which party holds the reins of governance. If the citizen can be assured of justice and equality before the law, politicians and parties in power become irrelevant. While personalities might dictate policy trajectory, the collapse of the rule of law and the erosion of freedoms in the past several years, is democracy’s true enemy.

The awakening to this fact, at different levels of society is a hopeful sign that a disturbing trend could still be reversed if the right amount of pressure is applied. The citizen’s group, Friday Forum, has gathered together great minds and eminent persons that are united in their collective conviction that Sri Lanka’s present socio-political trajectory needs reversal. The collection of individuals, regularly comment on the conduct of public officials and incidents and individuals that threaten freedom and rule of law in the country, through statements penned by eminent career diplomat Dr. Jayantha Dhanapala and former vice chancellor of the University of Colombo and jurist, Prof. Savitri Goonesekere. The conviction of this learned group, provides hope and courage to all those other rungs of society that are concerned and looking for leadership in terms of creating a more civilized, lawful state.

Recent incidents relating to the mob attack on the Mannar Courts and the alleged intimidation of a magistrate in the area proved that when grievously threatened, the legal fraternity, comprising judges and lawyers, have the capacity to unite against their oppressors.
The legal community staged an island wide boycott a few days later, bringing the Sri Lankan legal system to a grinding halt. The awakening of the judiciary, the last bastion of redress in a governance system that has no clear differentiation between the executive and legislative branches, is a (similar) hopeful sign that persons of knowledge and influence are beginning to realize that there is something terribly wrong with this country.