By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

With the dust uneasily settling over a legal community thuggishly coerced into fuming silence, an unjustly ousted Chief Justice Shirani Bandaranayake may yet be proud.

Disastrous steps in a dictatorial journey

Despite overwhelming odds, she succeeded in uniting a deeply divided Bar, rallying judges to her side, provoking strongly worded editorials and unexpected protests from the normally quiescent business, investment and employment sectors, quite apart from religious leaders and concerned citizens.

Most of all, her dogged determination not to resign effectively pushed the political leadership over the brink, forcing it to take a series of disastrous steps in a dictatorial journey that surely cannot continue for too long. For, if any among us believed that President Mahinda Rajapaksa would have been capable of a statesmanlike stepping back from the brink which would have instantly turned hostility into accolades, those naïve illusions were dispelled in no uncertain terms. As security personnel peered into the vehicles of lawyers and judges entering the superior court complex this Tuesday as much as if Bandaranayake was hiding under the seat and the entirety of Hulfsdorp resembled a war zone with lawyers not being allowed freedom of movement, no reasoned person could profess ignorance of the iron hand now thoroughly out of the velvet glove.

Janus-faced weapons of threat and promise

That the political leadership is well aware of the deep anger felt by the legal community is evidenced by the use of its customary Janus-faced weapons of threat and promise. Thus, even as threatening letters were sent by vigilante forces to lawyers at the forefront of the anti-impeachment struggle, empty reassurances were made by ministers that the constitutional process relating to impeachment of superior court judges will be overhauled. And from farce we progressed to unbearable comedy as a National Human Rights Commission, which has manifestly failed to live up to its statutory responsibilities, solemnly announced that it will initiate a reform process. These games may be entertaining to those who paddle where the Government tells it to go but they are scarcely credible.

Of course the Government would not have been so hard pressed if it had been able to coax a convenient resignation of the ousted Chief Justice, which indeed was the mistaken basis on which it first acted. The Minister of External Affairs and former law professor was reported to have stated this week that he was not proud of some of the actions of his former student. He may be unequivocally informed that the thinking citizenry is not only, not proud of him for his singular hypocrisy but further roundly condemn for his allegiances to and justification of a political leadership that, much as the Nazi boot did, engages in mercilessly grounding and stamping democracy into the dust in Sri Lanka.

From start to finish, this impeachment process was riddled with impropriety and at certain points, distinct illegality. The resolution was framed without formulating the charges in the expectation that the Chief Justice would be pressurized to step down. The hearings violated the right to natural justice in almost every conceivable way, despite President Mahinda Rajapaksa’s repeated mantra that the constitutional process was followed to the letter. Finally, in the ultimate idiocy, the wrong resolution was reportedly voted upon by the House on 11^th January 2013. The Minister of External Affairs, who is blind, deaf and dumb to all these happenings, is a living example of the deplorable limits of seeming intellect. Such is the stuff of unreasoned ambition.

Recovery of the democratic spirit

Meanwhile, it is interesting that alarm cries raised in regard to the judiciary struggle have raised skeptical eyebrows in a context where the summary disposal of a Chief Justice may seem to be somewhat dry and legalistic as compared to the decades of still unresolved killings, disappearances and extra judicial executions.

Some time ago, this column posed the question as to what was worse, the disappearance of individuals or the disappearance of a system. Answering this question has great significance now more than ever. The horrors of the Southern disappearances in the eighties or the tragedy of Tamil civilians ruthlessly dispensed with as ‘collateral damage’ in May 2009 are events that a country could still recover from if its systems and its citizens have the inner strength to withstand barbarities of a period.

We saw this in 1994 when Sri Lanka shook off a dark decade of the Southern terror, ushering in a new government on a mandate of peace. That Chandrika Kumaratunga failed to deliver is another question altogether. But the important fact was that Sinhalese, Tamils, Muslims and others dared to hope. And they did so because, despite the brutalities, the country’s judicial institutions remained essentially intact and before long, judges and lawyers stood up for what was right. Flawed as it was, the notion of justice had not yet disappeared from the turning of the legal wheel. Consequently, from the mid to late nineties, the Supreme Court did the country proud in asserting the rights of all citizens, minorities and majority through voluminous jurisprudence that could have held its own anywhere in the Commonwealth.

Such recovery of the democratic spirit will not be so easy now. Ironically, we have not only a former Army Commander declaring that he is the actual President with the incumbent being a rogue president but also an ousted Chief Justice raising a similar cry. In that context, the promise made to uphold the Rule of Law and the legal system by Sri Lanka’s new Chief Justice, former Attorney General and legal advisor to the Cabinet Mohan Peiris sounded particularly hollow, even given the cynicism that normally attaches to these statements.

The repercussions of dissent will continue

So while it hectors to the Bar quite spine chillingly not to use the courts as a political platform, the Rajapaksa Presidency has ushered in the ‘disappearance’ of an entire system. The institutional memory of an independent judiciary will be remorselessly erased and the very notion of legality lost, even though lawyers may practice and judges may ascend the bench. As much as an animal frantically struggles for the last time before it dies, we may look upon the events of the last few months as symbolizing a judiciary in its death throes. Consequentially, to underestimate the danger of what Sri Lanka is now facing only for the Sinhala majority but for the Tamil minorities, is to be abysmally if not myopically ignorant.

Granted that, given the nature of this regime, the result of the anti-impeachment struggle was a foregone conclusion. In an appropriate analogy, it would be as if during the recent FUTA struggle, the Government had sent the army into the universities. In regard to the FUTA demands, it was a question of ego with the administration’s arrogant refusal to back down. In the case of the judiciary, what was in issue was far greater, going to the root of the political survival of the regime. Naturally therefore, the tactics used and the methods employed were far more brutal.

Yet amazingly enough, the Bench and the Bar, even despite the Judas-like betrayal of the leadership of the Bar at a game-changing meeting with the President this week, threw its weight together in a unified stand which lasted for several months. That by itself, was near miraculous. This dissent is not momentary. Its repercussions will continue to be felt.