Colombo Telegraph

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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