By Basil Fernando –
Arundhati Roy, prominent writer and social activist in India has written several important articles in the recent few days on the problem of the spread of Covid-19 and the vast numbers of deaths that are taking place in India. In an article written just a few days back, Roy directly addresses the Prime Minister of India, Narendra Modi and points to the fact that the Covid-19 crisis in India is a problem of governance in India. The system of governance has failed and it is now threatening the lives of the people. She asked the Prime Minister to leave his post and hand over the management of this crisis to persons who are competent to do so.
I thought of those comments when I was listening last Sunday (9th May) to a discussion on the Judiciary organized by the Movement For A Just Society. where a few senior layers spoke and where there were also some comments made. I could not help feeling that the entire discussion was like talking about a cure for a cold or a minor fever when the actual disease is something like the Covid-19. The problem of the Constitution of Sri Lanka is not primarily about the various very genuine practical problems that are faced by the lawyers and the litigants as they come or do not come in search of justice. Such problems as the powers of the Attorney General, judicial delays, the role of the prosecutor and the like are of course important issues but these have remained important issues for a long time. Any bona fide discussion on trying to solve such problems should necessarily address the root causes which have caused these problems and aggravated these problems in recent times.
The question that needs to be asked first is as to whether by a new Constitution do we mean merely making some amendments to the existing 1978 Constitution. Such attempts were made by way for the 17th Amendment to the Constitution and later the 19th Amendment to the Constitution and even later with the 20th Amendment to the Constitution. None of these Amendments addressed what has actually gone wrong within the constitutional system of Sri Lanka which in turn has created a crisis of the management of the society in order to resolve the problems that affects the society. The 1978 Constitution has caused the kind of mismanagement and the loss of governance in Sri Lanka, as pointed out by Roy in her recent articles on India..
As we speak, the Covid-19 crisis is causing almost a panic situation throughout Sri Lanka. Everyone we speak to lives with great anxiety and without any belief that something significant would be done in order to save the country from a major catastrophe. However, the problem is not one about Covid-19 per say. It is about the fact that the country’s system of management has destroyed all the basic infrastructures which could push a Government to action in normal times as well as in moments of crisis.
Judicial crisis in Sri Lanka is part of this overall crisis that the public institutions have been facing in Sri Lanka ever since the narrow minded approaches were adapted for constitutional change both by the 1972 Constitution and the 1978 Constitution.
The 1978 Constitution is not a Constitution of a liberal democracy. The issue of the independence of the Judiciary and also the independence of institutions such as the prosecutors Department, and all the other public institutions associated with the administration of justice such as the policing system and the civil service are all intertwined.
The 1978 constitution wanted to dismantle the entire infrastructure of the public institutions in Sri Lanka in favour of an envisaged system where the all powerful President will control the Parliament and the Judiciary and all other public institutions. Thus, the notional foundation of a liberal democracy and the notional foundation of the 1978 Constitution are completely different.
One of the speakers at this seminar rightly pointed out that what the people are feeling about the system of justice is that they do not want to get involved with that and want to keep out of it as much as possible. That is a part of the popular wisdom arising out of the experience of the actually existing system. The popular perception is that there is no system. Anything can be done within this system whether it is legal or illegal or good or bad. That is a matter of mere chance. People faced with grave problems do not want to take chances. The essence of any good system of justice is its predictability. In the system we have within Sri Lanka, this quality of predictability was removed deliberately. The idea was that it should be a system that can be manipulated and handled by the Executive President in any manner he or she wishes.
When the very notion of legality is removed, then what remains of the idea of justice or the idea of the independence of the Judiciary? It simply is an illusion even to think that there is a foundation for the achievement of justice within the constitutional framework that exists in Sri Lanka as of now.
A discussion that does not touch this fundamental problem of the need for the abolition of the existing Constitution is simply what we might call the discussion about the phantom limb where it means that it is like the situation of an amputee who keeps on believing that his amputated body part, whether it be a leg or an arm or anything else, still exists. For a long period of time, the doctors and psychologists have identified this problem.
I could not help feeling when listening to this discussion that we are so attached to our lost limbs that we keep on talking about how better it would be to re-adjust our ideas to that situation and to keep on believing that we are living under an acceptable constitutional framework.
The only result of that kind of discussion is to delay the recognition of the actual problem and that delay will only help those who benefit from this terrible system that we call our constitutional system. It may be that for the lawyers and a few litigants, there is no way out except to go on playing this same game. After all, there is a system of courts and people are forced into some problem where they cannot altogether avoid going to court and some kind of release has to be found. However, talk about that kind of situation as a way of solving the constitutional problem is to miss the point altogether.
There are countries like Sri Lanka in which there is no place for a liberal democratic approach to justice and all that goes with it. Cambodia for example is one such example. There, if a client comes to a lawyer with a problem, all that he could do is to find some form of a method to find him some relief. Often, the more workable solution is bribery or by some corrupt practice such as developing all kinds of relationships with some officer or another, along the way. For example, many questions relating to criminal law could easily be settled these days even in Sri Lanka by dealing with the Police in the way the Police expect these things to be dealt with. However, that kind of problem we do not call as a constitutional issue or as matters of justice.
As much as Sri Lanka has been unable to develop a proper system of defense against a disease like Covid-19, we also have not yet even touched the issue of how to deal with the complete crisis (for the lack of a better word) that is faced in the system of justice. While the discussions on the Constitution is very much needed and welcome, we also owe a duty not to mislead people to the idea that what is involved as constitutional issues are some minor problems of administration which could be dealt with some way or another.
In fact, today, the people are more aware of the constitutional crisis than the people who are closer to the system like the lawyers, judges, prosecutors, law educators, the Police and the like. It is out of their wisdom that they try to keep out of this problem in order to avoid facing more trouble by getting involved in the problem of justice. Just ask anybody who has made a serious complaint of torture or extra-judicial killing against the Police. Did they benefit by making that complaint or did they not get into more and more problems as a result of it? The years that may go even up to 20 years or more where the Police will do everything to protect the people who have been accused of these crimes and a Judiciary which very often does not show any urgency in dealing with these problems are the common experiences of the people. The same thing can be asked about a rape victim even if the rape victim is a foreigner.
The system simply cannot work because it is meant to and designed to not work. Until such time this problem is addressed in this way, there is no way out of the problems that the speakers’ mention in their discussion.