By Basil Fernando –

Basil Fernando

In an article entitled ‘Once judiciary is broken the Rajapaksas will use the court to destroy every remaining right or freedom’, Tisaranee Gunasekara makes the following prediction:

If the impeachment succeeds without wounding the Rajapaksas, that will become the judicial norm in Sri Lanka. Once the judiciary is turned invertebrate, it too will begin to act like the current Attorney General’s Department (which was taken over by the President in 2010), all the time. And instead of a magistrate issuing an arrest order against Duminda Silva, a magistrate will declare him innocent, on the orders of the Family. The Siblings and their kith and kin will decide who are guilty and who are innocent. The courts will be reduced to pronouncing Rajapaksa judgements and Rajapaksa sentences.

I think any thinking person should give serious consideration to this prediction. The time that is still left to prevent the prediction from coming true is indicated by the ‘if’ with which the prediction begins. The basic issue is as to whether soon it will be the executive who will decide the distinction between what is legal and what is illegal. That is whatever the executive (which has come to mean the three Rajapaksa brothers) wishes to do will be treated as legal. We are dealing with the Otto Adolf Eichmann view of the law. In his defence when he was tried by a court in Israel, Eichmann took up the position that in Germany whatever the Führer ordered was the law. Hannah Arendt, who watched and reported on this trial, termed this as the ‘banality of evil’.

That is why that ‘if’ is of such paramount importance. There is still a very short time for testing the prediction. Those few weeks are in the hands of Sri Lanka’s higher courts. They could either begin to cause the beginning of the reversal of submission to the dictates which more or less started with the four fifth majority of the UNP and continued with the borrowed two thirds majority of the present regime.

The legality of much of the 1978 Constitution could have been challenged by the Supreme Court at that time. However, this document called the Constitution of Sri Lanka which, in fact, in the history of constitutions is one that could without any hesitation be termed a joke, was allowed to be the paramount law of Sri Lanka only because the judiciary refused to exercise its role as the final arbiter of what is legal and illegal within the territory of Sri Lanka. In my book, Sri Lanka Impunity, Criminal Justice and Human Rights (2010) I devoted a whole chapter to illustrate that the distinction between legality and illegality has been lost in Sri Lanka.

After 31 years of the 1978 Constitution, it is not even possible to recognize what is law and what is not. When the executive president placed himself above the law, there began a process in which law gradually diminished to the point of no significance. This is unsurprising. The constitution itself destroyed constitutional law, by negating all checks and balances over the executive. When the paramount law declares itself irrelevant, its irrelevance penetrates all other laws. Thereafter, public institutions also lose their power and value……..When there is a loss of meaning in legality, terms such as ‘judge’, ‘lawyer’, ‘state counsel’ and ‘police officer’ are superficially used as if they mean what they did in the past; however, their inner meanings are substantially changed. Those who bear such titles no longer have similar authority, power and responsibility as their counterparts had before, when law still had meaning as an organizing principle.

It was that failure which led to the creation of continuous ambiguity about what is legal and illegal in Sri Lanka in recent decades. Even things like abductions and enforced disappearances are not clearly defined as illegal in Sri Lanka. If such acts were defined as illegal and the law was enforced, how many would now be in jail for committing that crime? This is just one example. How many other things which would have been considered illegal in a country that has the rule of law came to be considered as legal? The list would be a very long one.

The proverbial last minute

Still, all the space was not lost. At least an appearance of courts exercising some authority has still remained. The recent judgements on the Diviniguma Bill and the Criminal Justice Provisions Bill are just some examples which showed that still there is room for the judiciary to act as the arbiter of what is legal and illegal.

It is that which has been challenged now by way of the impeachment. The procedure under which the impeachment proceedings are to be held under the Standing Orders as they stand now is clearly unconstitutional. If through this unconstitutional process the Chief Justice is removed with that the power of the courts will be finally removed.

The test is as to whether the courts will exercise their authority against an illegal process for the removal of the Chief Justice and thereby retain in their hands the final power of deciding what is legal and illegal within the territory of Sri Lanka. The Indian Supreme Court has clearly kept their authority and, in the last few years, the Supreme Court of Pakistan also has reasserted its power to be the final arbiter of declaring what is legal and illegal within their national territories.

A court that does not exert the power it has will have no one to blame but itself. But there is still time before that ‘if’ may come true. So we are in that proverbial last minute.