By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

At the close of a year that has proved to be disastrously negative for Sri Lankan democracy, Sri Lankans should look to the Indian people to see the manner in which democracy is defended by bold action on the ground.

Lessons from across the Palk Strait

This Saturday, India’s unassuming anti-corruption activist Arwind Kejriwal assumed office as Delhi’s seventh – and youngest – Chief Minister after resoundingly defeating his predecessor, seasoned front-liner of the Congress Party Sheila Dixit in assembly polls earlier this month.

This was just one year after he formed his own party, fittingly called the Aan Aadmi or the common person’s party. Greeted by ecstatic supporters as he gave his induction speech, Kejriwal warned that the fight was only beginning and asked the public not to bribe officials. ‘Come to us and we will get the job done’ he said. Colorfully terming the Indian political arena as a ‘cesspool of political horror,’ among his very first acts was the banning of VIP convoys for politicians.

These are sentiments which find resonance on this side of the Palk Strait. Certainly, Indian and Sri Lankan politics are characterized by similar horrors of huge corruption, bad governance and non-accountability of the State. But the comparison ends there, of course.

The vitality of India’s anti-corruption movement, encompassing activists, lawyers, academics, judges and ordinary citizens cannot be matched in any way in Sri Lanka. And while it may be easy to blame an authoritarian Presidency, post-war militarization, a pathetically defunct opposition or manifold other factors, the truth of the matter is that the blame lies very much on ourselves, none other.

What is the role of the judiciary?

Indeed, this logic applies in many other spheres as well. The Indian Supreme Court has been a powerful ally of the anti-corruption movement in that country and has been so bold as to put ministers in jail for manifest bribe-taking.

In comparison, what has been the role of our legal system? This year has seen not only the witch-hunt impeachment of a Chief Justice but also scandalous controversy over the sacking of the principal of the law college allegedly over charges that he favoured his son during the holding of examinations. As is an open secret in Hulfsdorp, similar allegations had been leveled in respect of President Mahinda Rajapaksa’s son at a time when this former principal was in office. So we recall that old complaint, namely when the head is corrupt, what can the body do?

Indeed, Sri Lanka’s top to bottom spiral of bribery and corruption is now so stupendous that grim forebodings of financial crisis are articulated by former officials of Sri Lanka’s state financial institutions. Corruption scandals include the ethanol racket, massive road and expressways commissions and the building of uselessly extravagant airports and zoos. Meanwhile the price of sprats and dhal is increased even as the government devises more ways to extract money from the hapless citizenry. When is this nonsense going to stop? Yet these are the very same politicians who are elected to power, time and time again.

In contrast to disgruntled Indian voters teaching their political rulers some sharp and telling lessons, we have not even been able to enact a Right to Information (RTI) law. To date, the government has not been able to offer a reasonable justification as to why an RTI law will be so harmful for Sri Lanka. To add insult to injury, Sri Lanka’s bribery and corruption commission proceeds with zest against the former Chief Justice even as its office bearers stoutly deny allegations of corruption on their own part and further, turn coyly away from dealing with corrupt politicians.

But to return to the role of the courts in combating bribery and corruption in Sri Lanka, we may remind ourselves that the degeneration of the judicial role in this regard was not sudden. A decade ago, (or as it seems now, an eon ago), I remained continually troubled by the question as to how Sri Lanka’s legal systems could have been so effortlessly stripped of their integrity without so much as a whimper from the majority of law academics and practitioners. But these are not questions that one needs to ask any more as the answers are all too patently evident, emanating from reasons of self-interest, cynicism and absence of real commitment.

Reasons for the potency of India’s anti-corruption movement

Except for a brief period when the doctrine of public trust in relation to tackling corruption was deftly developed by Sri Lanka’s judges of the caliber of the late Mark Fernando and ARB Amerasinghe, judicial responses have either been pro-executive or needlessly adventurist. A useful observation was made for instance by a visiting team of jurists from the International Bar Association in measuring the functioning of Sri Lanka’s Supreme Court under retired Chief Justice Sarath Silva, when they remarked that the Court’s reasoning in many judgments delivered, was not based on ‘any proper rationalization of the law in this area but appears to be a tool to provide the Chief Justice with the opportunity to pronounce on populist issues’, (see ‘Justice in Retreat: A report on the independence of the legal profession and the rule of law in Sri Lanka” May 2009, at p. 35).

This column has said it countless times and will say it again; responsibility for the manner in which the Supreme Court became a tool to be manipulated by power hungry politicians needs to be borne by those who remained silent a decade ago when principled resistance by the legal community may have made a difference. Lawyers parading on the streets in protest some months ago came as far too little, too late.

In contrast, the Indian Supreme Court has retained its public image, refusing to be involved in the political thicket as it were and disassociating itself from one or two individually corrupt judges, in whose exposure moreover the Indian legal community and the Indian media played a vital role. These were all hugely potent factors as to why the anti-corruption movement in India grew to such heights that, in 2013, it was able to unseat Delhi’s Chief Minister within an unbelievably short period.

Broad-based resistance movements

In any event and unlike Sri Lanka, Indian resistance has traditionally come from broad-based peoples’ movements that take governments head-on. The RTI movement is one striking example. India’s push towards an RTI law was not by special interests groups such as the media but by ordinary villagers who demanded the right to probe the use of local government budgetary allocations. Persistent public demand resulted in provincial laws and then a national law which was effectively used to expose government corruption. This was not easy with many drawbacks along the way as politicians fought back. Even now, RTI campaigners continue to be killed in the course of their struggles.

In that backdrop, a national anti-corruption movement was perhaps inevitable. Led by Anna Hazare, this movement confounded Delhi’s patronizing political elites who promised concessions only in theory. So when Kejriwal broke away from Hazare’s movement to enter politics, he effectively tapped into the strong yearnings of Indians who wanted a change, not the same old tired political rhetoric. And there was further reason to celebrate as the Indian parliament this week, passed the anti-corruption bill which puts an anti-corruption ombudsman into place and prescribes time limits for the completion of corruption investigations.

The ombudsman has the authority to probe complaints of corruption against the prime minister, current and former members of Parliament, civil servants and employees of corporations and commissions funded by the government. India’s primary investigative agency, the Central Bureau of Investigation is mandated to act on all cases referred to it by the ombudsman. Though law has been criticized as not being strong enough by anti-corruption crusaders, there is little doubt that this signifies a seminal moment in the struggle. Taken together with Kejriwal’s victory, the coming year promises to be one of rejuvenation as well as challenge for the Indian public.

Irreparable damage done to our moral spirit

On the other hand, Sri Lankans are confronted with far more depressing realities. The very idea of democracy, which was alive even at the worst of the North and East conflict, seems most at risk now. A Constitution engineered to ensure the continuing political fortunes of one family, the profound deterioration of basic democratic freedoms and the degeneration of a multi party system has framed unprecedentedly corrupt practices by a select few. Sri Lanka’s democratic systems of governance have been pushed to the very brink. The damage done to the collective moral spirit has been irreparable.

As we usher in a new and dangerously unpredictable new year, it is time that the critique of Sri Lanka’s political and legal systems take on new and radically honest forms. Assuredly, that responsibility remains in us, not in the government or the opposition both of which have spectacularly failed this country.