By Mohamed Harees –
‘The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are blowing’– Caroline Kennedy (US)
While following the many developments in this so-called Dharmadweepa in the administration of justice, my mind races towards the well –known novella by George Orwell- which although an ostensibly a fairy story of farm animals, was really a thinly veiled allegory for the (Trotsky/Stalin) Soviet Union. The animals are led by a pair of pigs, Snowball (Trotsky) and Napoleon (Stalin), who lead a rebellion against the human owner of the farm. The animals successfully drive him out and establish Animal Farm. They agree to adopt the Seven Commandments of Animalism as their constitution. The most important of these is the last commandment: “All animals are equal.”
Napoleon runs Snowball off the farm and gives himself full leadership. He gradually violates more and more of the commandments as his behaviour becomes increasing like that of their previous human master. The climax comes years later when the animals spot Napoleon walking on his hind legs while carrying a whip (violations of the commandments) and discover that all the commandments have been reduced to simply “All animals are equal, but some animals are more equal than others”. Logically, this quote is nonsensical. To be equal means to be exactly the same, so there cannot be more or less equal. You are either equal or unequal. What it however symbolizes is the open admission that the ideals of social justice and equality that inspired the animal’s revolution will never come to fruition.
This quote aptly captures the drama revolving round Galagoda Atte Gnanasara Thero’s (GST) jail sentence and subsequently letting him off on bail. It was not just a comical stroke of justice in this fast failing state of Sri Lanka, but also sends dangerous signals to the country that rogues and thugs in politics and saffron robes will and can continue to act with impunity and enjoy immunity from the process of justice; all they need is state patronage and some pressure from those in the saffron class- a powerful class which has been parading in the corridors of power ever since SWRD was voted into office (although lessons are not learnt when SWRD himself fell a victim to a bullet by rogues members of that same class!). This saga indeed lends truth to what George Orwell showed in this famous novel. Yes! “All Are equal but some are more equal than others” in fairy tale Sri Lanka.
This hardline rogue monk was incidentally found guilty of having threatened the woman activist Sandya Ekneligoda, who was seeking justice for her husband who mysteriously disappeared during MR time. In 2016, GST interrupted a court hearing over the abduction of this journalist, Prageeth Ekneligoda, in which military intelligence officials were accused. He shouted at the judge and lawyers because the military officials had not been allowed bail, and threatened Ekneligoda’s wife in filthy language. So, the Magistrate Udesh Ranathunga recently sentenced the monk to two terms of six months in jail, to be served concurrently, as well as a fine of 1,500 rupees, and a payment of 50,000 rupees as compensation to his wife Sandya. GST also faces a separate contempt of court case over the same incident. When, he was put behind bars, there were wide discourses all over the country initiated by the top hierarchy in the various chapters about the permissibility of disrobing this monk in jail and getting him to don a jumper. This concern was interestingly not shown when many other rogue Bikkhus were arrested and jailed for numerous offences.
When the hornet’s nest was disturbed after the sentence was handed over, Sandya became a target of hate and harassment in both the social media and on the ground. As per her own interviews, she said that she has not done any injustice to or insulted either the concerned monk or any of the protesting monks; rather she is being verbally abused when she is merely seeking justice long overdue for her husband. She said that this sentencing gave a strong signal to those attempting to intimidate those particularly women who seek redress from the temple of justice to put the social wrongs, right. Precisely why Amnesty International said that the verdict was a victory for human rights defenders in Sri Lanka. “This is an important verdict for all people who fight for human rights in Sri Lanka. A clear message has gone out to those who seek to intimidate, threaten and silence people seeking justice,” said Omar Waraich, Amnesty International’s Deputy Director for South Asia. Within a week, however , the rogue monk GST was released on bail pending appeal, although not surprising given the intense ‘behind the curtain’ manoeuvres of many opt government politicos! I wonder what Sandya Ekneligoda will feel and what Amnesty International will have to say now about their earlier talk of victory to human rights defenders in Sri Lanka as a result of the court’s sentencing GST to Jail!
This punishment was nothing to do with his highly poisonous well-orchestrated hate campaign against the Muslims ever since MR assumed his role as the champion of the Sinhala Buddhism after SL forces defeated the Tigers in 2009. As the world knows, GST was the architect of the infamous Aluthgama mini1983 style anti Muslim communal violence –a culmination during the MR regime. GST has since faced accusations in cases regarding anti-Muslim violence, hate speech, and defaming the Koran, the Muslim holy book. The BBS, with proven State patronage led by him , has been alleged by Muslims and some government ministers to have stirred up violence against Muslims and Christians. In 2014, GST signed a pact with Myanmar’s Ashin Wirathu, who once called himself “the Burmese bin Laden” to form a broad alliance. It was a mockery of justice that this rogue monk GST was given many concessions to have had the privilege of absconding and then released many times within a day for many charges against him on account of his anti-Muslim tirade. This is a separate story but still goes to prove what George Orwell referred in his novel about equality. GST and his likes are above the law on the streets, courts or anywhere else.
It was true that MR and his brother Gota used GST as their political pawn to woo Sinhala Buddhist votes and woefully failed as GST became their liability at the 2015 elections. In a post-election interview, MR said that BBS and GST were part of Western conspiracies. Maithree during the Presidential campaign tweeted on 27th Nov.2014 ‘Let BBS go to anywhere they like . We don’t care. We did not even talk to them as their decisions are not important to us’. The Yahapalana gang even promised to bring these perpetrators of hate to justice as part of their promise to restore law and order. The people believed them and gave them power. Yet they failed the masses in a big way . What happened subsequently was history despite few cosmetic stroke plays to deceive the masses. Today, GST has re-emerged as a significant political pawn once again. GST is seen in high places with Maithree taking him even as part of his official delegation for instance to Japan. Many official back door initiatives were taken to save him from getting ‘Achchuwa’ treatment from the courts both when anti-Muslim charges were taken up and also in this Sandya abuse case, by bringing unwarranted pressure on the judges to go soft on GST. Recently, Duminda Dissanayake, Maithree’s right hand man visited GST in prison, and talked to the Press. He boasted of close connections with the rogue monk for over a long time and said that intense activity is going on behind the scene to get GST out on bail. Even Cabinet Spokesman Rajitha confirmed this at a press briefing. The result is bail pending appeal. This happened in the case of Lalith Weeratunge too. Why this special interest for GST by this Maithri and his Yahapalana government, except to use him again as a political pawn!
Yes! There is mockery of justice in Sri Lanka. The public feel very strongly that all are equal; but some are more equal than others. Those at the bottom rungs of society feel the process of justice which are harshly applied when they were in the wrong, even for minor offences like stealing a mango or a coconut, is so lenient on the powerful and the rich. Even arrests of politicians and jail sentences meted out to them.have become an entertainment and a laughing stock in the eyes of the world. They are arrested, put behind bars as a show and then released after a brief stay in the prison hospital. Many politicians suffer from ‘Mama Danne Nehe’ or ‘Mata Matkaka Nehe’ syndrome like we saw particularly during the recent Aloysius scandal concerning over 118 MPS. They are still roaming free relating fairy tales. Gotabaya Rajapaksa too continue to enjoy immunity from getting arrested for many offenses while the small man wonders whether he will get similar treatment for such offences . But, then getting redress from courts is not cheap; beyond the purse of the ordinary man!
A better future for Sri Lanka depends on a stable democracy supported by an expanding economy. This aim requires an independent judiciary, a free media and a constitutional framework that commands confidence. Underpinning all this must be a respect for the rule of law and its application to all aspects of life and society in Sri Lanka. Unfortunately, Sri Lanka is nowhere close to achieving this aim. Human rights defenders (HRDs) and those with dissenting voices are however intimidated and subjected to harassment like in the case of Sandya and the impunity of rogue monks like GST are being glorified by those in the hierarchy for purposes of political expediency. On the other hand, there is no visible progress on seeking or achieving a political settlement with the minority Tamil community. There also remains concerns over the situation in the predominantly Tamil and Muslim areas in the north and east. Muslims are feeling alienated in the land of their birth. Rule of law is thus biased towards the powerful and the influential while those at the grass-root levels are fast losing hope in judicial justice and social justice, promised to them by their constitution and UDHR ideals.
Sri Lanka’s poor human rights situation is clearly being exacerbated by the weakness of state institutions and the judicial system. The country’s judiciary is failing to protect constitutional and human rights. Rather than assuaging conflict, the courts have corroded the rule of law and even worsened ethnic tensions. Rather than constraining militarisation and protecting minority rights, a politicised bench with allegations of corruptions against sections of the Judiciary seem to have entrenched favoured allies, while punishing foes. Whistle blowers like Sugadhika Fernando types are being intimidated by the powerful BASL mafia to shut up while Ranjan Ramanayakes are being gagged into silence who are exposing Judicial / Political link ups to allow politically powerful to escape punishment.
As International Commission of Jurists in 2012 reported ‘ Sri Lanka is facing a crisis of impunity. It is increasingly difficult, in fact nearly impossible, for people who have suffered serious violations of their human rights to receive justice and accountability. Victims and survivors do not receive redress, and perpetrators are not brought to justice. The absence of justice removes an important deterrent to future perpetrators. This situation constitutes a serious breach of Sri Lanka’s international obligation to protect and promote human rights. The failure by public authorities, whether due to legal obstacles or lack of political will, to fulfil that international obligation and bring perpetrators of human rights violations to account, is the definition of impunity’.
‘It has become a cliché to speak of a ‘culture of impunity’ but the phrase is entirely apt in describing the situation in Sri Lanka, where impunity has over the years become institutionalized and systematized: mechanisms to hold state actors to account for their actions have been eroded; checks on the arbitrary use of power have been diluted, if not dissolved; institutions to protect the independence of the judiciary have been eviscerated; the Attorney-General has become politicized; and political forces have continually sought to influence and interfere with the judiciary. Blatant disregard for the rule of law and the independence of the judiciary has crippled the justice system, leaving victims with little or no prospect of remedies or reparations for serious human rights violations’. This quote aptly applies to Sri Lanka with more relevance even today!
It thus falls on the State to guarantee judicial independence and it is the duty of all governmental and other institutions to respect and observe the independence of the judiciary. The judiciary as well as individual judges must not be subordinate to the other public powers, including the political branches of government. The judiciary must be kept independent of the executive and the legislature. Judicial institutions must be allowed to function independently, free from interference, intimidation, threats or violence. Independence of the judiciary is essential in maintaining the rule of law and the notion of a fair trial. Public activism too is equally important that all branches – legislature, executive and judiciary acts to preserve public confidence on democracy and its’ stated ideals. On the other hand, Judges must also realize that the people rely on courts to protect their access to justice and to protect their legal rights. For the sake of the people, then, judicial independence must always be coupled with the second stated measure–accountability. Otherwise, it will be a case of ‘operation successful; patient died’ situation for the masses waiting to enjoy the fruits of democracy.