23 October, 2017

Lifting The Liberal Veil

By Lakmali Hemachandra –

Lakmali Hemachandra

“You can’t be neutral on a moving train, events are already moving in certain deadly directions, and to be neutral means to accept that.”
– Howard Zinn

Mohan Pieris, the de facto to Chief Justice as some would mock him, dismissed the Nimalaruban case last week. Surprisingly it has enraged most of us, because anyone who has been closely watching the Supreme Court and the law for the last five years should know that it was always going to be that. It could not have ended in anything other than a callous dismissal of the fundamental rights petition filed by Nimalaruban’s parents claiming that their son was tortured to death by the police. Yet, it has surprised quite a lot who now complain that de fact CJ is blatantly violating the law of the country, that Nimalaruban is denied justice and that reasoning for the dismissal is painfully bias. Asian Human Rights Commission is challenging the CJ’s claim that Nimalaruban was a terrorist and everyone is furious at the CJ’s arrogant declaration that terrorists are not entitled to human rights.  Surely, this cannot come as a surprise to the masses of the country? Surely we knew that the law, under the de facto or the de jure chief justice, was bias. The law is classist, sexist, and racist and although it espouses objectivity the law always, always takes a side and this time that side happens to be that of a rich, Sinhala Buddhist, male or what we also call the President of the country.

Anybody who has gone to the courts complex in Hulsdroft would confess to the extreme bureaucracy, the unbearable arrogance and the blatant injustice of the law of this country and the charges of a good lawyer who can win you the case tells us the story of fairness and justice in this country. The more you can pay for the lawyer, the more understanding and amiable the judge higher your chances will be of accessing justice. On the other hand if you end up in the court house of a mean spirited judge with a lawyer that has a record of lost cases for an affordable fee then it is better to avoid that valuable recourse to justice. An analytical investigation into the working of the law is quite unnecessary to understand that there are millions who face the same fate of Nimalaruban, may be not in death, may be not from torture, but in less violent, everyday acts of injustice that we never talk about.

However since everyday experiences of the masses have never been good enough to convince the political elite of this country that there is something terribly wrong with the liberal democratic model that we inherited from our colonial masters, let’s look at the Nimalaruban case for concrete evidence to the partiality of the law, not only the law but the whole liberal discourse that favours the wealthy and the powerful or as Karl Marx liked to call it, the ruling class.

Taking a trip down the memory lane, to the time Nimalaruban was murdered would give us more insight into how the law of the country has held a grudge against this Tamil youth, who they believed from the beginning to be unworthy of any justice or respect, even in his death and let me remind you that at the time we had a de jure chief justice. Nimalaruban was tortured to death on the 4th of July 2012 in Anuradhapura after being transferred to the Anuradhapura prison following the riots in Vavuniya prison. He was laid to rest on 24th of July, twenty days after he was murdered and the reason for that delay is an injunction by the courts that held Nimalaruban should buried in Colombo, not in Vavuniya. Eventually his body was handed over to his parents and 20 days after he was brutally murdered Nimalaruban bid farewell to his mother who was crying, screaming and cursing the villains of her story who killed her only son. That was the first time the law of this country disregarded dead Nimalaruban, I say dead because I believe that when he was alive the law, the state and the people who supposedly bring justice must have ignored the plight of Nimalaruban for him to finally turn his back on everything that was legal. Why is it then that now we are surprised when the law repeats its usual practice of ignoring marginalized voices, of the pleas of other ethnicities and religions and the plight of women and so many other categories of people who have lost means to a legal language to tell their stories?

Let’s revisit that word that AHRC said was not true, terrorist. What is a terrorist? How does a citizen become that person? A terrorist. What made Nimalaruban a terrorist was transporting weapons in a three wheeler. Would that mean that all of those people who carry weapons are terrorists? As far as I know they are called criminals, they have protections under the law of evidence that are not awarded to terrorists which would mean that terrorists are not criminals, not mere criminals. Criminals have rights, but terrorists don’t. Terrorists are the people who have spat on the face of the liberal democratic process, who have refused to participate in the elections that make a mockery of the people, who have stopped speaking the language of the hegemonic discourse about freedom of expression and right to association, who declare themselves the enemies of the state because they no longer believe in the instruments of the state. Some terrorists take up arms against the state and others they use their art and pens. Terrorism is defined against the state, which in the liberal language translates into a crime against the people as well. Therefore for the greater common good, for public safety and national security and for other concepts that have nothing to do with the people, terrorists are dehumanized and the rights enjoyed by other deviants like murderers and rapists are taken away from the them because unlike the killer who kills you or me, unlike the rapists who debase entire humanity, terrorists attack a sacred structure that cannot be challenged because it embodies everything that is good and democratic, the liberal democratic state. There are special acts to take care of them, like the Prevention of Terrorism Act, and there are special prisons to detain them too, like that famous Guantanamo bay prison. In Sri Lanka we keep them in Boossa.

The fundamental flaw of the liberal democratic theory is that it continues to preach that law is neutral, that law is objective, that law is virtuous while the ruling class has been prostituting the law as a slave for its unholy desires for decades, perhaps for centuries, ever since our white masters introduced their laws to the country and even before that when our brown skinned kings used their own laws to rule over a pliant population. In a capitalist economy labour is exploited and the contract of employment is drafted by the employer, the wages are decided by the employer, all that the employee has to do is to sign on the dotted lines. In a patriarchal society women are objectified, they have no real agency for they are exploited not only in the workplace but also at home by their husbands under a law that defines marital rape to be no rape at all. In a divided country that has set its people against each other  the majority vote can dispossess the minorities of their lands and makes them second class citizens because they believe in different gods, or speaks a different languages.  But the liberal democratic thinking continues to hold empty values of neutrality and impartiality in the highest regard, which inevitably vilify the struggles of those who take a side, be it the side of the discriminated ethnicities, the side of the poor and the workers or the side of the women. Liberalism falsely believes in autonomous individuals who can stand on equal grounds in a court house when in reality most of us are falling down at the feet of a ruthless judge who has the power to dismiss our misery, because he personally knows we are wrong.

Most liberal intellectuals and human rights activists do not want to call Nimalaruban a terrorist because championing the cause of a terrorist is impossible when you have accepted that terrorism is against the people, so they see him as a young boy who was wrongfully detained, wrongfully imprisoned, illegally murdered and unfairly dismissed and some of them would even like to say that is it is this particular regime that is responsible. I want to believe that Nimalaruban was a terrorist, an outlaw who took up arms against the state because even then I believe he was wrongfully detained, wrongfully imprisoned, illegally murdered and unfairly dismissed, because what compelled a bright young man to take the path he did was the hypocrisy of a political system that never included Nimalaruban, like it never included more than hundred thousand people, both Sinhala and Tamil but largely from the working class, who were labeled enemies of the people, when they were trying to battle hypocrisies of the state on behalf of the people. That is how democracy in this country or for that matter democracy in any country, as we see with the case of George Zimmerman, has worked for centuries. It mocks you when it sides with the rich and the powerful and when you declare war on its injustices; it crushes you and then calls you a terrorist and takes away the rights you are supposed to have by virtue of being human.

So let me tell this honestly and with conviction, the rules of the game was never set for fair play, the umpire was sitting with the richer team, the more powerful team, the one that defined the terms of the contract and the one that sets out the laws that crush us. Nimalaruban I am sure knew his case was going to be dismissed, therefore he never appealed to those judges.  So all of us who act surprised when the inevitable has happened we must understand that Ganeshan Nimalaruban might have been a terrorist but he chose a side and it was against the law, the law that eventually dismissed him and the tears of his poor Tamil mother to take the side of that rich Sinhala “father”.

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Latest comments

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    The country sorely needs more and more fair minded people like you, Lakmali!

    Sengodan. M

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      I agree with your comment.

      However, in today’s capitalist world her ideas of fairness and justice will be taken as communist ideology and suppressed.

      She is a true idealist to be respected though.

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    There are many Nimalarubans awaiting their fate in secret prisons run by the Rajapakse regime.
    Many arrested by police too,are ‘potential Nimalarubans’.
    Many in custody have died & police has given lame excuses.
    The LLRC recommended that names of those in detention must be divulged and the government said that a database of all those arrested and held will be made available.
    But this did not happen.

    The De Facto CJ has set new benchmarks in this case –
    (1)”a judge may rely on his “personal knowledge” rather than evidence led in court,to decide the guilt of an accused”.
    (2) A “terrorist” has no right to a fair trial.

    These shake the very foundations of justice,as we know it.
    This judgement should be sent to all law associations.
    The Rights Commission has strongly objected – but the MR regime cares two hoots.

  • 0
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    Mustard seed is so small but very worthy and powerful of all spices. May God bless this author to be seated one day in the seat of CJ of SL.

    • 0
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      I hope so too.

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    The fundamental question is that all are equal before the law. A person is presumed innocent until proven guilty. Was Nimalruban a terrorist? Was he proven to be a terrorist? Does Sri Lanka permit the torture and killing of people in custody? Do such victims have no recourse to justice?

    The Cheap Justice who claims to know the law has cited his personal opinions and views to dismiss a case disregarding the laws of natural justice. Is he worthy of the hallowed position which he occupies?

  • 0
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    Sadly, Nimalaruban is one more activist Tamil youth slaughtered by
    State thugs while in protective custody. There were dozens done to death in the most brutal way at Galenbindunuwewa in the Bandarawela District a few years ago. The sanctity and protection loudly proclaimed in what goes as our Constitution was not for them. Is that because they were Tamils? At Welikade dozens of unarmed Sinhala men were killed on false pretences when leading State actors took sides on kudu gangs going after each other for supremacy in the lucrative drug-trafficking industry. What right has this uncaring regime to call itself a democratic government. It is savagery masquerading as rule of law.

    The pronouncements and conduct of the de facto CJ once more shames all of us.

    Thank you Lakmali for courageously raising your voice – not for a Tamil or Sinhalese but for the restoration of the fair name of justice that ruled us reasonably well until only the other day. Like the Jews who were sent to their premature deaths during WW2 but whose cause is still kept alive by conscientious men like Simon Weisenthal there is, I understand, a record of every single Tamil killed extra-legally. A day will come soon when the State will be asked to account for all of them – with help from the international community. Many of us believe both in incarnate as well as divine justice.

    Senguttuvan

  • 0
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    Very forthright from Lakmali Hemachandra. Even one accused of being a terrorist must be treated as an equal before the law. The law and it’s interpretation by judges need to be free of bias. The CJ’s ruling in this case goes against natural justice and will undermine the citizen’s belief in the state of justice in this country. I am truly disappointed with Mohan Peiris’ dispensation of justice, and further more, his lack of humanity.

  • 0
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    Absolutely true….the State sooner or later is sure to crumble ..

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    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy
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  • 0
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    Lakmali, the Aimless Human Rights Commission (AHRC) of Basil fernando will hang onto any carcass to sing for their supper.
    They wait in ambush for their prey AND thats all they indulge.
    Criticise…. criticise & criticise.

    They too follow family bandism. Would have learnt from the Rajas & they are right now following in Raja’s foot steps.
    They are thick skinned this comment will not bother them.

    YOU TOO APPEAR TO HAVE FALLEN PREY TO THE AIMLESS HUMAN RIGHTS COMMISSION (AHRC).
    Lakmali sure to get elected if you contest from the north. They are looking for cheer leaders like you from outside their community.

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      Thondamanaru, Basil Fernando runs the Asian Human Rights Commision from overseas. He has no oversight or control over the local HRC which is under the President. Just a clarification.

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    Thank you Lakmali. I know that there are enough number of sincere, intelligent, good hearted men and women among the sinhalese community who let not the so called policies fine tuned with rhetorics but their conscience speak. But it is unfortunate that they didn’t speak up very much earlier on. You have lead the way now for them to come forward and face the consequences what they may be! I wish this small step towards humanity will pave way for a greater walk towards the truth and freedom for the entire nation. Let the cries of the weeping mothers shake the entire foundation that Sri Lanka stood on all these years since independence.

  • 0
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    Interesting thought Lakmali, appreciate it. I should say that I am impressed of your thoughts and time to work on how to transform this bloody system to a more humanized system.

  • 0
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    Lakmali,

    “You can’t be neutral on a moving train, events are already moving in certain deadly directions, and to be neutral means to accept that.”
    – Howard Zinn

    Mohan Pieris, the de facto to Chief Justice as some would mock him, dismissed the Nimalaruban case last week. Surprisingly it has enraged most of us, because anyone who has been closely watching the Supreme Court and the law for the last five years should know that it was always going to be that.

    In Sinhala Lanka it was always going to be Jungle Justice and from the very beginning there was never going to Justice for Nimalarubans family.
    De facto Chief Justice is in the same camp as the Murderers headed by MR

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