By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

It is exquisitely humorous that state media propagandists still believe that legitimate criticism leveled at the government may be suppressed through vicious barbs aimed at dissidents accusing them of supporting the defeated Liberation Tigers of Tamil Eelam (LTTE). They must realize in no uncertain terms that these allegations only expose the mala fides of their originators who, lacking the basic capacity to engage in reasoned debate, can only take refuge in scandal and calumny.

Leveling malicious accusations

After all, we live in a country where appellate court justices who advised that the arbitrary impeachment of the 43rd Chief Justice should not go ahead and religious leaders of all faiths who vainly appealed to the President to step back from the yawning precipice were all subjected to these same asinine ramblings.

Certainly there is a counter-productive warning to such overkill, similar to that best loved tale about the boy who shouted ‘wolf, wolf’ for fun and then was devouvered by a wolf with his cries for help going unanswered.

Regardless, it is scarcely any surprise that former Supreme Court judge C.V. Wigneswaran has been the latest to be accused, (through media reports appropriately enough on 1st April 2013), of undermining the ‘sovereignty of the people’, challenging the ‘supremacy of Parliament’ and worse, following a typically forthright address delivered at the 39th Annual Convocation of the Bar Association last Saturday.

Where is Sri Lanka now?

Going further and in the context of the 44th Chief Justice not being invited to attend as Chief Guest in a bold defying of convention, these same accusers have asked as to where the Bar Association is now, when it appears to have cut its bonding with the Executive President (was the BASL ever supposed to have ‘bonding’ with the Office of the President by the way?) the judiciary, the Department of the Attorney General, the law enforcement authorities and what has been amorphously if not puzzlingly termed as ‘legal departments.’

Yet given that we have manifestly lost all respect for the Rule of Law with Parliament initiating a precedent of disregarding judgments of the Supreme Court, the Attorney General continuing to withdraw politically sensitive cases and a Chief Justice now out of favour being blatantly victimized, the better question may indeed be as to where is Sri Lanka now?

‘Sovereignty’ only at the favour of the ‘sovereign’

Do those who wave the flag of ‘peoples’ sovereignty’ with chest beating fervor realize what this term actually means in the context of the Rule of Law which underpins even as flawed a constitutional document as the 1978 Constitution? Peoples’ sovereignty is not a political maxim to be used by a dictatorial President for his own convenience.

On the contrary and simply put, it means at the lowest common denominator that a Chief Justice or a common criminal must be given due process of law and all rights to a fair trial before being dealt with according to law. It is from this basic point that the ‘sovereignty’ of all of us, as the collectivity of ‘the people’ originate. The 43rd Chief Justice of Sri Lanka was not afforded that common courtesy. Our ‘sovereignty’ therefore does not depend on the Constitution but what our ‘sovereign’ thinks fit to grant in his profound magnanimity or manifest lack thereof. Should one belabor the point further?

Further, do these propagandists realize precisely how outdated that other favourite notion of ‘supremacy of Parliament’ is? Perhaps it is time that they went back to their law classes and re-learn the subject of constitutional law, assuming again that they have the capacity to understand basic legal concepts.

Public respect for compromised institutions

But a larger issue for discussion concerns the public legitimacy of institutions, (be they judicial, prosecutorial or investigative), when they have lost independence and become mere appendages to the executive. Justice Wigneswaran himself summed it best when he warned tersely that ‘law and its sanction is based today on force rather than consensus; forced legitimacy rather than consensual legitimacy.’

Indeed, the term ‘forced legitimacy’ itself is an evident conundrum. Can anything that is forced actually have legitimacy? And the primary question may well concern the manner in which the legal community or the public can be called upon to extend respect or continue ties with compromised institutions operating on the basis of force?

In extended reflection on this point, it must also be said that for too long in Sri Lanka, questions of justice have been seen to be the exclusive province of the legal community. This is in contrast to other neighbouring jurisdictions where the people learnt in truth that the law is too important to be left to judges and lawyers as much as, as has been famously said, war is too important a matter to left to the generals.

So despite tremendous problems existing in the delivery of justice, no Parliament in any of our neighbouring countries would be so bold as to deliberately ignore a judgment of the highest court and press ahead with the impeachment of a Chief Justice. We stand unpleasantly alone in that regard. Yet do we even have the foresight to realise the immensity of what we have lost? In a few years time, even the institutional memory of what was once meant by independent systems of justice will be reduced to nothingness.

Excellent sentiments of caution

Meanwhile, the core of Justice Wigneswaran’s address at last Saturday’s BASL Convocation interestingly intertwines threats to the judiciary and to religious freedoms in one potent caution of a future all consuming conflagration. Hence, his observation that ‘the attack on religious freedoms radicalises the polity and unleashes dangers that cannot be controlled even by those who foster them; the attack on the temple of justice removes the only rational and non-partisan check on government and individual excesses; the combination of the two at present is both a time-bomb waiting to go off ’

Only politically fevered minds can possibly see any affront in these sentiments. They focus rightly on the government’s role in curbing religious extremism and call upon the Bar and the public to ensure that justice institutions respond effectively.

Certainly, it is time and more that similar calls were made by those of us who have the country’s best interests at heart.