15 June, 2024


Advancing An Honest Critique As To Culpability

By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

Traditionally, political change has been brought about in Sri Lanka through change of governments. Sri Lankans have always prided themselves on their ability to do just that, even in the face of media propagandists stridently if not embarrassingly shouting themselves hoarse.  This was the case in the seventies, in the eighties and in the nineties.

A sinister political combine and complicity

The years thereafter however saw different dynamics at play, accompanied by an unprecedented undermining of Rule of Law institutions and the balance of power in actual practice as differentiated from constitutional theory.  And what these painful events of the past decade have taught us essentially is that the old notion of change of governments is far from being the automatic answer to the many ills bedeviling our country.

Put plainly and simply, the crisis we face is the result of a sinister political combine and complicity. It is not limited to one party alone even though casual observers may well be forgiven for putting the responsibility at the feet of the current regime. True, the imbalance of power became grotesque during this administration with the growth of a monstrously powerful Executive Presidency and the centralization of power. But this result was in the making and did not emerge overnight.  Civic engagement must therefore go far deeper than merely call for change in political power. Instead, it must strike at the root problems of Sri Lanka’s deficiencies with the Rule of Law and apply this critique evenly across all political parties. In the alternative, history will only repeat itself in every sense of that hoary caution.

Convulsions around the LLRC

A signal illustration is the convulsions that we see around the report of the Lessons Learnt and Reconciliation Commission. In the past, Commissions that handed down similar recommendations were not thrust into the centre of a raging controversy as to the integrity of their inquiries. Granted, many of these recommendations by past Commissions of Inquiry were conveniently aimed at the redressing the actions of previous governments unlike in the case of the LLRC. However their reports were allowed to fade away into relative obscurity without much fuss even when the appointing authority began freely engaging in the very same abuses which had been condemned on the part of the predecessor. There was no discernible public outcry to implement any of these recommendations.

Not so the LLRC. Public expectations around this Commission literally took on a life of their own. What was meant to be minimum recommendations to ensure democratic life in Sri Lanka became fiercely contested to the point that an incoherent Government was forced to fall back on an exceedingly unconvincing defense that the LLRC had exceeded its mandate. The fact that the LLRC recommendations became the centre of a resolution tabled by the United States at the United Nations Human Rights Council and passed thereafter is only part of this story. Regardless of the UNHRC, there is little question that the Sri Lankan people see the LLRC report literally (and to use an apt Bibilical metaphor) as manna from heaven.  Intelligent probing as to why this has become so should surely lead us to see the depths to which we have fallen. In principle, it is inconceivable that such basic recommendations should have occasioned such intense expectations. But set those recommendations against the political backdrop of the appalling absence of governance today and their crucial importance becomes very clear. It is this reality which drives the focus on the LLRC, no more and no less. Understanding and acknowledging the same is important for a consistent and strong voice to be heard, calling for accountability based on the Rule of Law against not only this Presidency and this government but all other political actors.

Gradual undermining of the Rule of Law

Let us recall that the gradual destroying of the 17th Amendment to the Constitution did not happen overnight.  Scarcely had the ink on this novel constitutional amendment dried when former President Chandrika Kumaratunga declined to appoint a former retired Supreme Court judge who had been named to head the Elections Commission by the Constitutional Council.  Angered meanwhile by the stubborn efforts of the National Police Commission (in its first term) to discipline police officers accused of abuses, all parties including the Janatha Vimukthi Peramuna reviled the Commission. The main opposition United National Party remained markedly quiet except for a few individual politicians. The minority parties shrugged off these problems as being of little relevance to them. It was fashionable at that time to criticize the 17th Amendment as hastily conceived and totally unworkable. Again in Kumaratunga’s time, the appointment of former Attorney General Sarath N. Silva as Chief Justice led to a catastrophic decline in the independence of the judiciary, which had reverberations long after he retired from office and probably will be irreversible to some extent.

Let us also not forget that these were all developments in regard to which Sri Lanka’s ‘intellects’ in the professional and academic spheres contributed on no small measure, by their culpable silence and ready willingness to compromise. A record number of senior lawyers and retired judges accepted appointments to the so-called constitutional commissions when the 17th Amendment was being blatantly disregarded.

Public questioning is needed across all political parties

The drama in regard to the subversion of the judiciary was meanwhile played out in the full glare of public opinion.  Across the sub continent, the Bar Associations of Pakistan had the sense to realize that the undermining of the legal and judicial systems would rebound eventually on the legal profession and acted swiftly to prevent that calamity even in extremely militarized circumstances. In contrast, Sri Lanka’s Bar Association only genuflected unceasingly, unbecomingly and nauseatingly before the former Chief Justice. During the last three years of his term, Sarath N. Silva draped around himself the cloak of a judicial crusader and handed down several maverick judgments that were ignored by the political establishment of the day, setting the seal on that disastrous decade.  On its own part, the media which may have played the role of a catalyst in questioning abuse of judicial and political power also stayed largely quiet.

It is good that we now hear retired judges discussing public perceptions in regard to the politicization of the judiciary. These are matters that should be talked about openly, provided that a discerning eye is brought to bear on those collectively responsible.

Certainly an honest critique as to the historical culpability for the sorry fate that has befallen Sri Lanka today where we weep and wail for the LLRC report to be implemented, must take into account all these factors. Such a critique is fundamental for moving forward from this present impasse.

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Latest comments

  • 0

    This is something that all lawyers in Sri Lanka should read. It turns the responsibility inwards. Politicians are not the only problem but professionals too! And academics who except for a few, seem content only with asking for higher pay!

    The media is also responsible. We see editorials holding forth that the 17th Amendment should be brought back but where was the media (except for a few solitary voices) when the 17th Amendment was thrown into the dustbin?

    Politicians will be the same, from whatever side of the House in Parliament they come from. We should not look to them to uphold our rights. Don’t we have a responsibility? And have we fulfilled that responsibility?

  • 0

    Kishali Pinto Jayawardena you are marvelous keep up the good work BRAVO.

  • 0

    As long as we have individuals in the calibre of this writer Kishali Pinto Jayawardene who venture to voice and uphold JUSTICE at a time the voices of dissent are stilled, there is hope for this Nation. Similar like minded individuals should step out and make their presence felt for the majority in this society, to group together and redeem this country. I am reminded here of a quote from Napoleon, ‘The world suffers a lot, not because of the violence of the bad people, but because of the silence of the good people’. I believe as a first step, all the intellectuals, the Professionals and Academics who pander to the corrupt should be openly condemned and boycotted, let they be friends, relations or family members. At the moment as we are silent, they enjoy our hospitality and continue to exploit us, for them to indulge in position and perks in the system. If we shun them they will get the message.

  • 0

    What a contrasting piece of work from the writer!! Well done. Unlike most other self-appointed champion-journalists, it is eye-watering to see somebody else recognising Sarath Silva as a disaster in the independence of the judiciary, than as some others would call him the saviour of democracy. It is also good to notice that unlike many commentators here and there, she does not recognise catastrophic leader Ranil as the Deng Xiaoping of Sri Lanka either, which itself makes the article praiseworthy. Expecting academic involvement in shaping up the society is hilarious; the academics are insane. They say insanity is hereditary but how wrong it is to believe so!Reminds me one senior prof who had all the praise for Premadasa in late 80s for the duty free car despite all that mayhem.All in all, agree with almost all what she says.Still she as well, just touches but misses the point ,,how typical!!The executive presidency has been the root cause of almost every problem. Nobody asked for it and it was forced upon us by somebody who believed he was almighty, it was all about him. His philosophy was, as Weinberg said,’it matters not whether you win or lose; what matters is whether I win or lose’.Whatever adjustment is made to patch it up, be it 17th or 19th A, nothing will be sufficiently effective unless the executive presidency itself is abolished. Indeed a genuine serious critique is absolutely fundamental for us to move forward an inch.

    • 0

      Some other writings on Sarath Silva;
      Corruption Vs CORRUPTION; Retired Chief Justice Sarath Silva is a prime example of someone who has indulged in most of these forms of corruption. He was, without a doubt, the most corrupt Chief Justice of Sri Lanka

  • 0

    Chief Justice or her husband must resign

    Her husband and the conflict of interest

    In June 2009 following a Supreme Court order to the Treasury Secretary to appoint a board of directors to the Sri Lanka Insurance Corporation(SLIC) after the government took it over, President Rajapakse who is also the Minister of the Finance, was to appoint to this new SLIC Board none other than Shirani Bandaranayake’s husband Pradeep Kariyawasam. Not only that he also made Kariyawasam the chairman. And here in lies the rub.

    The names proposed by President Rajapakse for the new board of directors for the Sri Lanka Insurance Corporation was to receive Supreme Court approval after the list was presented to court by Deputy Solicitor General Sanjaya Rajaratnam on 26 June 2009 on behalf of the Treasury Secretary. But Kariyawasam’s good fortune didn’t end there. He was again appointed to the Lanka Hospitals Corporation PLC as a member of its Board of Directors along with Defence Secretary and Presidential sibling Gotabhaya Rajapakse who was Board Chairman.

    But that’s not all. On 15 May 2010 Pradeep Kariyawasam was also appointed the new Chairman of National Savings Bank by President Rajapakse which controls assets worth Sri lankan Rupees 424,994,303,000/-

    It is not a secret that Sri Lankan government institutions have been spending millions of rupees to ruling party election campaigns and government propaganda projects. The Sri Lankan government officials are quick to boast that Sri Lanka has “one of the best judiciaries in the world” because so few judges have ever been found guilty of corruption.

    When Sri Lanka’s Permanent Representative to the UN in New York Palitha Kohona was interviewed by channel 4 in UK about war crimes he said; “ the government has just appointed a Commission of Inquiry to go in to this type of allegation, ……… Sri Lanka has a history of a very highly respected judicial system. To suggest anybody from outside can do a better job is simply ……. colonialist”. This boast does not stand up to scrutiny if one analyses the pathetically feeble investigative history of the Sri Lankan Judiciary.

    I am reminded of my own experience with President Rajapakse, then Minster of Fisheries. When Chandrika Bandaranaike appointed Sarath Silva as the Chief Justice I asked Mahinda Rajapakse “ why are you supporting this kind of political appointment?”

    He then pointed to his wedding photo hanging on the wall and said “ look at this. This is Sarath’s son”. Sarath Silva’s son was the pageboy at Mahinda Rajapakse’s wedding.

  • 0


    Sarath N. Silva’s successor to the Apex Court was Justice Asoka N. de Silva. He has his own connections. His daughter Kanishka is married to the son of another (then serving) Supreme Court judge, Jagath Balapatabandi. The son, Isuru Balapatabandi was even appointed as the second secretary of the Sri Lankan embassy in the Netherlands breaching Foreign Service rules. One can remember the case related to Secretary to the Treasury, P. B. Jayasundara. Chief Justice Sarath Silva during the tail end of his career all but declared Jayasundera to be corrupt and ordered him to pay personal compensation in the Colombo Port Fuel Bunkering Case. Jayasundera was order to tender an affidavit to Court undertaking never to hold public office again. Once Silva had retired, however, Jayasundera was quietly allowed to withdraw that affidavit. The Supreme Court bench that allowed his motion to withdraw the affidavit comprised Chief Justice Asoka de Silva and Supreme Court judges Shirani Bandaranayake and Jagath Balapatabendi.
    When Asoka de Silva retired, Shirani Bandaranayake was appointed Chief Justice. What is shocking is that breaching all existing conventions retired Chief Justice Asoka de Silva upon his retirement as Chief Justice was appointed as the Senior Legal Advisor to the President. This is unprecedented. Today the Chief Justice, tomorrow an adviser to a controversial head of state. What does this imply? Where is the integrity of Sri Lanka’s judiciary?


  • 0

    Wijedasa Vs Tirantha Vs Independence Of The Judiciary

  • 0

    These are good comments. @Vanderkone, I do think I agree with you. The Executive Presidency certainly must go. I have been reading the Focus which has written earlier on that same point tho’ not in this present one, at least in regard to doing away with presidential immunities. I am glad that we agree on this point.

    @gamini, yes, we should stop this habit of being ‘polite’ and start openly ‘shaming’ academics and professionals who kowtow to politics. Some may do it openly like that disgusting VC of the University of Cololmbo, a mediocre education academic who came to her position through political bumsucking, to be crude, and then enforced her political rule in the University. Some may do it secretly like recieving hampers from the President at home. Both are equally bad.

    @Janaka, thank you for the postings. It is no secret that we have no good judges capable of brilliant decisions like previous years. The Supreme Court has only several mutts with no one capable of original thinking and a Chief Justice who has completely compromised herself.Sarath Silva had all the capacity and did bad. Now we do not even have that capacity any more. I studied law in the US and came here to do the Bar exam and serve the country but left practice in disgust after seeing the stupidity of it all.

    Changing politicians may be done, even through blood and guts. But how do we change weak, mediocre and politically compromised judges, like that Deepani who is now promoted after giving Tissanaiyagam twenty years for writing two articles and put Sarath Fonseka behind bars?

    I say, we should kick them all out.

  • 0

    Whether we agree or not with this critique, we must appreciate and applaude it as this is constructive criticism we need in the current state of the country’s administration which is yet to recover its past glory.
    Rajapakse regime did the biggest service not only to SriLanka but to the entire South Asian region by irradicating the most brutal Tiger terrorists, not withstanding the ugly efforts to save the terrorists by some of their powerful Western friends and their diaspora.
    Rajapakse regime is well focussed today on the development of the economy and it is progressing at an unbelievable speed.
    Rajapakse regime took on the underworld and brought them under significant control and the country is safer from these thugs.
    However, the Rajapakse regime seems to be shy at divulging its plans to solve Sinhalese, Tamil and Muslim aspirations, which aspirations could be reasonable or over the top and need to be streamlined and blended together.
    Also, the Rajapakse regime seems to be losing its battle against corrupt, uneducated politicians and their side kicks, who have crept into powerful positions and bringing disrepute to the Government and the entire nation.

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