10 August, 2020

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Legality Of Government Actions Rendered Politically Irrelevant

By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

This week, a committed New Delhi based civil rights advocate and incidentally a good friend, observed in a dispassionate aside to an otherwise entirely different conversation in that country that ‘this situation that Sri Lankans are facing regarding the political impeachment of the Chief Justice is quite alien for us to grasp here, even in the abstract. How could checks and balances in your constitutional and legal system break down to that terrible extent? Even with the war and all its consequences, how could the centre of judicial authority implode with such astounding force?’

A juggernaut government brushing aside protests

In retrospect, these questions assume great significance. Sri Lankan newspapers are now gloriously resplendent with opinions of all shades and colours on the propriety or otherwise of the impeachment process. The airing of these opinions and the filing of court cases calling Parliament to order for a politically targeted impeachment of the Chief Justice are certainly necessary. However, these frantic actions remain ostrich-like in the ignoring of certain truths. Foremost is that questioning the legality of particular actions by this government has now been rendered politically irrelevant. Perhaps at some point in the past, these interventions may have had some impact. But this logic does not hold true any longer, no matter how many learned discussions are conducted on the law and on the Constitution.

In particular, the laborious posturing by members of the Bar, many of whom appear to have only now belatedly realized the nature of the crisis that confronts us, are destined to be futile if that is all that we see. In the absence of popular collective protests reaching the streets which target the protection of the law and the judiciary at its core, this government will press on in its juggernaut way, brushing aside civil protests couched in the carefully deliberate language of the law, as much as one swats tiresome mosquitoes with a careless wave of the hand.

Three wheeler drivers marching before the Supreme Court

This immense contempt shown by those in power for the law was very well seen recently when news outlets reported a government orchestrated procession of three wheeler drivers chanting slogans in support of the impeachment and marching before the courts complex housing the Supreme Court and the Court of Appeal.

This stark fact, by itself, demonstrates the degeneration of the esteem in which the judiciary was once held. Such an event would have been unthinkable in the past, even taking into account the much quoted abusing of judges and the stoning of their houses during a different political era. There is a huge difference between the two situations. In the past, the intimidation of judges was carried out in the twilight of the underworld even though the threatening message that this conveyed to the judiciary was unmistakable. Now, political goons threatening judges parade in the harsh glare of daylight with total impunity and total contempt.

To what extent is a judicial officer from a magistrate to a Supreme Court judge including the Chief Justice able to now assert the authority of the law in his or her courthouse when such open contempt is shown for the judiciary with the backing of the government?

Not simply harping on the past

But as this column has repeatedly emphasized, this degeneration did not come with this government alone though it may suit many to think so. Rather, those who expound long and laboriously now on the value of an independent judiciary for Sri Lanka including jurists as well as former Presidents, given that the latest to join this chorus is former President Chandrika Kumaratunga should, if they possess the necessary courage, examine their own actions or omissions in that regard.

As history has shown us, whether in the case of the genocide of the Jewish people by the Third Reich, the horrific apartheid policies of the old South Africa or indeed in many such countless examples around the world, a country cannot heal unless it honestly acknowledges its own past with genuine intent not to travel down that same path once again. It is not simply a question of harping on the past though again, it may suit some to say so. Indeed, the entire transitional justice experience for South Africans, even though it did not work as well in other countries in the African continent, was based on that same premise. It was honest at its core and was led by a visionary called Mandela. This was why it worked (with all its lack of perfection) for that country but did not work for others. Those who unthinkingly parrot the need for similar experiences for Sri Lanka should perhaps realize that fundamental difference.

Reclaiming a discarded sense of legal propriety

But there are many among us who still believe that, magically as it were, matters would right themselves and we would be able to reclaim our discarded sense of legal propriety. Unfortunately however this is day dreaming of the highest magnitude. What we have lost, particularly through the past decade and culminating in the present where reason and commonsense has been thrown to the winds in this ruinous clash between the judiciary and the executive, will take generations to recover, if ever it will.

As Otto Rene Castillo, the famed Guatemalan revolutionary, guerilla fighter and poet most hauntingly captured in his seminal poem ‘the apolitical intellectuals’, someday, those whom the country looked upon to provide intellectual leadership will be asked as to what they did, when their nation died out, slowly, like a sweet fire, small and alone.’

Castillo’s admonition about ‘absurd justifications, born in the shadow of the total lie’ applies intoto to this morass in which Sri Lankans find themselves in. We flounder in the mire of the arrogance of politicians who do not care tuppence for the law but still we cling desperately to our familiar belief of the authority of the law though this belief has been reduced to a phantasma. It is only when that ‘total lie’ is dissected remorselessly by ourselves and in relation to our own actions that we can begin to hope for the return of justice to this land.

That day, it seems however, is still wreathed in impossibility and uncertainty. Hence my Indian friend’s probing though casual questions a few days ago remain hanging in the air. Undoubtedly the answers to those questions lie not in blaming the politicians but in confronting far more uncomfortable truths about ourselves as a nation and as a people.

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    These 3 wheeler drivers were probably those who have leased their vehicles from State Banks or certain private finance companies. Most probably the colourful posters were also supplied by those banks or private finance companies owned by stooges of the Govt. The Govt is prepared to go to any level to throw out the CJ.

    On the other hand decent people play by the book or mind their own bussiness. Unlike in India and Egypt where people are politically mature and aware of their rights and would get onto the streets if any politician dared tamper with the constitution. Our people remain silent and laid back.

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      Not probably it is what has happened. And we are not politically immature we are a bunch of lotus eaters. Period

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    Yes, the newspapers today reported that these tuktuk drivers did not even know what they were protesting for! Disgrace.

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    “…As Otto Rene Castillo, the famed Guatemalan revolutionary, guerilla fighter and poet most hauntingly captured in his seminal poem ‘the apolitical intellectuals’, someday, those whom the country looked upon to provide intellectual leadership will be asked as to what they did, when their nation died out, slowly, like a sweet fire, small and alone.’

    Castillo’s admonition about ‘absurd justifications, born in the shadow of the total lie’ applies intoto to this morass in which Sri Lankans find themselves in. We flounder in the mire of the arrogance of politicians who do not care tuppence for the law but still we cling desperately to our familiar belief of the authority of the law though this belief has been reduced to a phantasma. It is only when that ‘total lie’ is dissected remorselessly by ourselves and in relation to our own actions that we can begin to hope for the return of justice to this land.

    That day, it seems however, is still wreathed in impossibility and uncertainty. Hence my Indian friend’s probing though casual questions a few days ago remain hanging in the air. Undoubtedly the answers to those questions lie not in blaming the politicians but in confronting far more uncomfortable truths about ourselves as a nation and as a people.”

    Very well said, Kishali.

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    So now we have another class of society in “three-wheeler drivers”, in addition to the many strata that defined “Sri Lankan” society!

    I am not sure what the general level of understanding is, among these “three-wheeler” drivers, but one thing I have observed is that they are mostly unoccupied with a worthwhile mental activity and laze about, waiting for that struggling homemaker or spouse to sacrifice their hard-earned money for short but expensive rides!

    On the productivity scales, theirs would probably feature in the lowest orders, say between 5% to 10% maybe, given the span of a typical working day? A pity that they too can be “organised” for political canvassing!

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    Lasantha, the three wheelers were the ones used primarily for political campaigning by the Rajapaksas and are their strongest support base. The fact that they were canvassed for a trumped up prtest against the Chief Justice is not suprising. During the war, they were used to spy on people and report on their movements. This is the pith and substance of the Rajapaksa rule!Let us acknowldge that.

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    How can you expect the people to take to streets when there is no strong political opposition to galvanize them into action, Kishali? How can we oust a despotic ruler when we can’t oust a despotic opposition leader? No wonder that government Ministers are openly celebrating last Saturday’s outcome at Sirikotha!

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      From what I read of this article, she is asking the lawyers to come on to the streets without just issuing statements and filing court cases. There is an important distinction betwee that and asking the people to come onto the streets.

      In Pakistan (I was in Karachi with my husband during the time of the lawyers uprising and was both shocked and thrilled at what happened and to see that dicatory toppled ultimately), the lawyers came out spontaneously even though there was no credible political opposition to speak of. That Chief Justice also was not an angel, he was arrogant and unpopular. But the lawyers stood up for a principle. One of those leading the protests was a friend of my husband’s and I remember him saying this.

      Will our lawyers be able to do that? Why did so many accept silk at the same time that the President was whacking the Chief Justice? And go with head bowed to Temple Trees to accept that? And have gilttering parties to boot that were splashed all over the pages of the newspapers?

      Do these characters have that kind of guts as the Pakistani lawyers? I doubt it.

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        ah, but the difference is, the majority in our little island still don’t see MR for what he is. To them, he is the man that ended the war. To them, abstract ideas such as rights, principles, legal affairs, and even economy are either unknowns, or irrelevant. So the lawyers can come out into the streets, but there will be no country-wide uprising. Colombo, a completely different world from the rest of the country, might make some noise, but in the end, all there will be is silence as the lawyers are ‘dealt with’.

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          Yes, kp, I agree with this view. It will take a decade or more for the common people to revolt against MR – that is if this current corruption continues. By that time, this country will be finished.

          As a Sinhalaya, I take the liberty of saying ‘sinhalaya modaya, kavun kana yodaya’ with sadness.

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    I agree Fazeela. I wrote much the same thing to the island which was published some weeks ago and republished as a Letter to the Editor in the Colombo Telegraph. The acceptance of PC-ships by these lawyers were disgraceful and their kowtowing to the President even more so.

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    @Chandra, @Fazeela, both of you must not be surprised. Knowing the nature of the legal profession and being trained by qualification though I am no longer one of them through choice, I am not surprised. They care only about their own pockets. Now they are shouting. What were they doing all this time?

    I heard that the police officers shouted at them like criminals last week in court.Now they will learn what it is to have no dignity in their work.

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