By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

As Sri Lanka heads into a New Year made dangerously uncertain by the precipitation of the worst constitutional crisis since independence, mindless revelry needs to be replaced by this Government’s sober rethinking of where it wants to take this country and its people.

Is it down the road of quasi-dictatorship pitting itself with an increasingly angry and mutinous populace, with the courts and the legislature in an open clash or is it to step back from the precipice that yawns before us?

Wise reflection is therefore needed even though such calls to sobriety may be but calls in the wilderness. The alternative course of action may lead to consequences that are too monstrous to contemplate.

Monstrous consequences of adverse actions

Concerns arising from this week’s shooting incident outside the house of the Bar Association President as well as threats issued to other lawyers involved in the anti-impeachment struggle cannot be assuaged by a visit of the President or empty promises to investigate.

These assurances have become ludicrous given legion past incidents where no perpetrators have been apprehended. The attackers of the Secretary of the Judicial Service Commission as well as those involved in the attack on the Mannar Magistrate’s Court remain at large.

This Friday, in response to a writ petition filed by the Chief Justice against the adverse findings of the majority government members of the Parliamentary Select Committee, the Court of Appeal issued a stinging rebuke to the Government. As much as a previous order by the Supreme Court stopped short of issuing a stay on parliamentary proceedings, the Court of Appeal also refrained from granting interim relief but warned in no uncertain terms that any steps taken in consequence of the parliamentary findings would be void if the Court finds it appropriate to grant writ at the conclusion of argument.

In assuming the power of judicial review to examine the plea brought by the Chef Justice, the authorities were adjoined by the judges to ‘advise themselves’ to refrain from acting in derogation of the rights of the Chief Justice until the final hearing. Moreover, the Court reminded the Government that it was its legal obligation to issue notices on the Members of Parliament cited as respondents in the petition in order to enable them to put forward their point of view.

Greater good of the country

These are measured judicial views that ought to be hearkened to. The immediate response by Parliamentary officers and by some government ministers that they would disregard this judicial order was unsurprising. However, this view should be rethought for the greater good of the country.

Meanwhile vituperative rhetoric peddled by government propagandists to confuse the discussion and to muddle the primary issue of justice not only being done but being seen to be done to the Chief Justice, needs to yield to commonsense and rationality.

Some of these misconceptions are indeed laughable. One prominent allegation, for example, is that advocates leading the anti-impeachment struggle are the very same as those who pressed for the impeachment of retired Chief Justice Sarath Silva some years ago. This is a ridiculous canard. On the contrary, chief actors in this drama (including members of the legal team of the Chief Justice) certainly did not take such fiercely consistent views in the context of the investigation of the misconduct of retired Chief Justice Silva. Excepting for a few dissenting voices at that time, the legal community itself was largely silent. Now, ten years down the line, it is heartening that, at last the Bench and the Bar has realised what is at stake for its own survival.

A more compromising but still inaccurate view put forward by some is that the Chief Justice’s supporters see her as an angel whilst those who are against her, paint her as the devil. This depiction of the extreme is also not correct. Anti-impeachment contenders only insist that the Chief Justice ought to be given the right to a fair inquiry. Surely is this something that Sri Lanka has to debate so ferociously at the expense of the country’s good name?

To argue this point is not to contend that the Chief Justice should not be subjected to any inquiry at all. As a friend queried from me the other day ‘do you see the Chief Justice as blameless?’ My answer to this question was short and to the point. ‘No Chief Justice since 1999 can be considered as blameless in regard to the current plight of Sri Lanka’s judiciary.’ On Saturday, former Justice of the Supreme Court, CV Wigneswaran put the matter very well when speaking at the meeting of the Judicial Services Association and after dwelling on the evils of the 18th Amendment, he reminded that ‘honest reflection’ shows that the judiciary itself played a part in the gradual aggrandizement of the executive.

Redeeming a forsaken courage

The Chief Justice’s admonition at this same meeting was that sitting judges should stay out of politics. Certainly when the judiciary becomes politicised internally, it is worthless talking of ideals and principles. What needs to be done is now to save what we have left and to painfully work back to regain what we have lost. Perhaps that task may be impossible. Yet we need to try. In that process, educating the ordinary citizen in regard to the value of an independent judiciary may be insuperably difficult when the practical meaning of that word has been lost to us for the past so many years.

But it is imperative that this is done.Otherwise, if the anti-impeachment struggle is merely seen as an abstract clash between the judiciary and the legislature/executive, then its sustainability will inevitably be doubtful. The next few months will prove these truths in good measure. But for the moment and for the first time in years, we can rest assured that this Government has been taken aback at the ferocity of the opposition that it has seen so far. At the closing of the old year, these slim victories will