By Laksiri Fernando –

Dr Laksiri Fernando

There is a new pattern of argument by government spokesmen (no women!) denying the last Sunday (7 October) attack on the Secretary to the Judicial Services Commission (JSC), Manjula Tilakaratne. They in essence ask, ‘could the government be so foolish to indulge in such attacks on the Judiciary when Sri Lanka is at the scrutiny of the UN Human Rights Council?”

I am positive that the ‘argument’ was collected from Mahinda Rajapaksa himself who roamed around the corridors of the then Human Rights Commission (now Council) in Geneva in early 1990s. Unfortunately this is not 1990s!

Geneva 

Those days several Latin American countries, particularly El Salvador, Guatemala and Chile, were on the spotlight of the UNHRC, but abductions, disappearances and other human rights violations nevertheless continued stealthily. The argument on the part of the government spokespersons (there were women!) were the same: ‘are we so foolish to do these things when we are willingly under your scrutiny, they argued.’ Even the human rights advocates who came from these countries were perplexed at the beginning; more so were the human rights observers from other countries including government representatives.

But this was only a passing phase. Within few years, the speculation disappeared and before that Mahinda Rajapaksa disappeared from Geneva. Human rights research and investigations on those countries very clearly proved that the governments and their various agencies were the real perpetrators of human rights atrocities except where armed or terrorist organizations (like the LTTE) were in existence.

Under normal circumstances, when a country is under the international scrutiny it works as a deterrent on government violations. This is largely the case in Sri Lanka, after March 2012, when the UNHRC managed to pass a resolution against the government (not necessarily against Sri Lanka). Suddenly the government changed the tune. This sudden or abrupt change was quite suspicious considering the whole ‘show-off’ and ‘browbeating’ that they demonstrated in Geneva. They have agreed, as if wholeheartedly, for a ‘full body check’ from top to bottom.

As they have ‘agreed’ they now believe that they can claim anything found suspicious in the body (politic) as an ‘implantation’ or result of ‘conspiracy’ of other parties. This is fooling of masses on ‘international scrutiny.’ Without insulting women, I may add that the pretended innocence of the government is like the proverbial ‘virginity of the prostitute.’

Among several government spokesmen who put forward this argument before the media; while Keheliya Rambukwella badly mumbled; perhaps Wimal Weerawansa was the most articulate on the argument, as usual. I am quoting from News 1st yesterday. He asked and argued, “What is the benefit that the government can accrue through this action when the UNHRC in Geneva is ready to blame the government even on false accusations? It is like roping its own neck. Do you think the government would do that when there is international scrutiny?”

Pre-empt Speculation 

The reasoning behind the argument or the behaviour behind ‘rogue’ governments usually goes like follows.
(1) When there are violations, international scrutiny can work as a deterrent. Yes.
(2) When there is international scrutiny, even ‘rogue’ governments are careful not to indulge in massive violations. Partly Yes.
(3) When there is public or international assumption of deterrence, governments can continue with selective violations (as strategically necessary) and claim international scrutiny as defence. Mostly true.

Of course, the same or similar reasoning can be employed by other parties to discredit a government, rogue or not. But it is extremely unlikely that any other political actor is in a position to indulge in such an action to discredit presumably the ‘all powerful’ Rajapaksa government, with a massive military and security apparatus today. For the opposition political parties, there are so many political issues to utilize against the government, if they wish to, rather than trying to discredit it through risky stage-managed assault or abduction.

It is true that irrespective of all these apparatchiks, the government has also allowed cudu (drug) mafias and the underworld to operate. Therefore, there can be a slight possibility that this kind of a thing can be done by a private party. But can there be a motive for such a private revenge-taking on the JSC Secretary? What the public know is what the President revealed to the Media Heads at his meeting with them on 11 October that there is a complaint from a ‘father of a female judge’ regarding what amounts to sexual harassment. This is categorically denied by Tilakaratne.
Be as it may, the complaint apparently was made in April, but no action was taken until October by the President, properly directing it to the relevant authorities to investigate the matter!

Of course there can be a cynical theory that because of the above, or for some other reason, the JSC Secretary himself hired thugs to assault him to blame the government or any other. Didn’t a dubious Minister say that? Of course there can be such a deceitful people in society, especially among politicians, but it is difficult to imagine that such a person can survive in the judiciary for long years whatever his other weaknesses. Tilakaratne was a High Court Judge previously before becoming the Secretary to the JSC.

No one can conclusively say who attacked the JSC Secretary on that Sunday. As Rev. Maduluwawe Sobitha has said, there should be prompt action to arrest the attackers and to conduct an impartial inquiry. There are many doubts that the attempt was to abduct Manjula Tilakaratne and not merely to assault him.

There is every reason to believe that the government is the prime suspect. They have every strategic reason to attack the judiciary at this juncture. There is no need to reiterate the events surrounding the pressure or the attacks on the judiciary from the executive branch in recent times subsequent to the 18th Amendment to the Constitution. If there is any impeachment necessary, it should be against the President but not against the Chief Justice. There are clear attempts to install ‘dictatorial authority and governance’ by doing away completely with the independence of the judiciary. Motives are to safeguard family rule, hoodwink minority rights, suppress dissent and pre-empt strikes like FUTA. There is so much written on the subject.

Defend the Judiciary 

In a court of law when someone is accused of a crime, the person is ‘presumed innocent until proven guilty.’ That should be the case when and if anybody is arrested and accused of the said attack and assault.

But in politics, the reasoning is different, and it should be different. Otherwise democracy is in jeopardy. The exposure of attacks on democracy is an absolute necessity of course on factual grounds. The accusation on the government on this assault is a political accusation. It is a valid accusation on the reasons given above. This does not mean that the government or the cabinet came to the Hotel Road, Mount Lavinia, and assaulted Tilakaratne. But political responsibility lies with the government and most likely the assault or the attempted abduction was conducted on clear instructions from above.

The assault is not merely on Manjula Tilakaratne but on the judiciary. The judiciary is not merely one branch of government among the three (legislative, executive and judiciary), but constitute a special position in safeguarding the rule of law, adjudication of justice and fundamental rights of the people. All these are under threat in Sri Lanka at present.
No one would argue that the judiciary (or the legal profession in general) in Sri Lanka is perfect or up to proper democratic expectations. There should be judicial reforms, expeditious delivery of justice, more professionalism, sensitivity to the ordinary people (not only to the rich!) and commitment within itself for judiciary’s independence. There must have been politically biased judgements in the past or bending over backwards to the political whims of even the present regime. However, as the judiciary is under attack from political goons at present, whatever the past weaknesses, the judiciary should be unconditionally defended by the people and all sectors of the democratic society. It is also an international duty.