22 October, 2021

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Need To Hit The Bottom Of The Precipice Before Climbing Back

By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

It did not take much prescience to foretell that parliamentary privilege would be formally wielded to prohibit public discussion of the PSC process with the commencement of the Parliamentary Select Committee (PSC) to consider the impeachment of the Chief Justice of Sri Lanka this week. The Speaker’s warning to party leaders on Friday that matters discussed at the PSC may not be divulged to the media is therefore unsurprising.

Bar on premature publication of proceedings of PSC

As observed previously, first we had a group of recently appointed (but unfortunately unnamed) President’s Counsel who tried to make out, quite wrongly, that fair and reasonable discussion of the impeachment even before the Select Committee had commenced sittings, amounted to a breach of privilege. Moreover, that the Chief Justice’s response to the charges relating to financial impropriety was also prohibited. As remarked in these column spaces, one can understand their natural eagerness to prostrate themselves before the Presidential hand that had magnanimously rewarded them. Yet this was a truly preposterous attempt to gag public discussion.

Now however that the PSC has commenced sittings, a bar applies to publication of proceedings in a committee of the House before they are reported to the House (see point 9. of Part B in the schedule to the privileges law, 1953). This is an offence that may be tried by Parliament itself.

Power to deal with offences in Part B. is conferred upon either the House or the Supreme Court. This is different to offences defined in Part A. which, as discussed last week, are exclusively within the power of the Supreme Court to punish. It is from this prohibition in Part B. that the Speaker’s warning to party leaders and the media this week emanated.

Public duty to discuss general issues of impeachment

Even so this bar applies strictly only to the premature publication of matters discussed before the PSC. It does not and cannot, even on the most favourable interpretation that the government may endeavour to give to its wording, encompass general criticism of the impeachment, its impact on the independence of the judiciary, the quality of justice meted out to the Chief Justice and relevant actions of the government in that regard.

The core question, as fittingly editorialised in this newspaper last week, remains as to whether this an impeachment or an inquisition of the Chief Justice? The public is entitled to discuss this question. It is this capacity which distinguishes Sri Lanka from a barbarian society, even though many may be of the opinion that we have crossed the line from civilised to barbarian some time ago. Efforts to suppress fair discussion of these matters must therefore be fiercely resisted.

Power of the mere threat of privilege

But there is little doubt that, quite apart from what the law actually prohibits, the mere threat of privilege with all the power that this gives to a House in which the ruling party pushing this impeachment of the country’s top judicial officer predominates in rude numbers, will inhibit vigorous discussion of the very impeachment process itself.

The potential that parliamentary privilege possesses to chill freedom of expression and information is certainly enormous. It is parallel to the similar ‘chilling’ effect that the power of contempt of court has in relation to questions touching on judicial behaviour.

In enlightened jurisdictions, the negative impact of both contempt and parliamentary privilege is limited by wise law reform, the sheer weight of liberal public opinion that raps governments as well as judges over the knuckles when authority becomes converted to authoritarianism not to mention powerful lobbies that jealously safeguard basic rights of information and expression. Even in South Asia itself countries such as India, Pakistan and Bangladesh have surged ahead with legal, regulatory and policy reforms. In contrast, we remain in the “Dark Ages’ as it were.

Thrusting of judges into the ‘thicket’ of political controversy

That said, esoteric questions of law anyway have little impact when the law itself has fundamentally lost its relevance in Sri Lanka. As this column has repeatedly stated, the responsibility for this crisis of the Rule of Law which was slow and gradual in the making, cannot be laid solely at the door of different administrations. As voters and citizens, we bear a far share of the blame.

But this is not the only point at which questions must be directed back to ourselves. It needs to be asked therefore as to what specific contribution has Sri Lanka’s judiciary made towards protecting and securing its own independence. This is not to claim that we should have had judges of the calibre of Ronald Dworkin’s satirical idealization of a judicial Hercules possessed of infinite judicial wisdom. Judges are human beings after all and subject to the same frailties that visit all of us. From independence, Sri Lankan judges have failed the people on some occasions. They have also arisen magnificently to the challenge at significant points in history. We have had the best and most conscientious of judges working miracles with an obdurate law or legal provision while respecting the judicial function. We have also had amoral and politicised judges rendering silent the most liberal law or constitutional provision.

Yet the unpleasant thrusting of judges into the ‘thicket’ of political controversy without respite, (ordinarily far removed as this is from the judicial role), became evident particularly from the early part of the previous decade, notwithstanding retired Chief Justice Sarath Silva’s most labored denials of the same to this column two weeks ago. This is the point at which the cherished theoretical notion of the independence of the judiciary itself came under ferocious and unprecedented public scrutiny to the extreme discomfiture of those in the legal and judicial spheres.

This focus continues to the extent that names of judges and their actions are now bandied about, (as irrepressibly well deserved as this may be in certain cases), in chat forums, websites and at public discussions. Surely only the most blinded among us will say that this is a good development for public respect for the institution of Sri Lanka’s judiciary? Certainly an honest discussion of the judicial role in Sri Lanka must occupy our minds if this country is to recover even decades down the line in regard to this most profound crisis of confidence in the law since independence.

Stepping back from this ruinous action

Now, external political excursions into the functioning of the judicial institution have culminated in the present sorry impeachment of an incumbent Chief Justice.

The government should even at this late stage step back from its ruinous actions for the sake of this country’s bemused people if not in order to avoid the ridicule that this exposes the country to, internationally.

That it would not listen to reason is however a near certainty. That Sri Lanka would need to hit the bottom of the precipice before climbing back towards slow recovery is also a near certainty. These are the unpalatable but unavoidable truths that confront us.

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Latest comments

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    Politicians would prefer that their words and ulterior actions are not known to the public. Yet they claim to do all these in the name of the public. Why then all this secrecy. Is it the guilt of conscience to hide ones actions and words behind a screen of privilege. Privelege over whom may we ask. Privilege over the very same people who vote you into parliment?

    It is usually criminals who commit their acts in the night or in isolation for no one to hear or see. Politicians who have something to hide do so behind privilege. To be transparent requires courage and forthrightness which is lacking in our politicians.

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    Kishali,

    This is very similar to the war without witnesses

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    I am often saddened to see eminent lawyers and others of legal knowledges and standing describe and analyse political will and behaviour in the context of the law. I feel that Sri Lankan ‘politics’ can no longer be analysed or described in legal terms and still have relevance.

    Look at the invasion of Iraq by the largest “modern democracy” in the world. It was a totally contrived act that was based on the most blatant of lies, opportunism and double standards. Two million murdered civilians between 2003 and 2010.

    Did the legal fraternity of the United States (or for that matter the United Kingdom, another modern “democracy”) where rule of law, justice, equitability, fairness, people’s will, supremacy of the courts etc were supposed to hold sway, have one whit of a say? Nay, it did not.

    Look at Guantanamo Bay. Do the inmates have access to due process, a civil court hearing with public access? No. Why? The question is rhetorical here.

    The legal framework will only be effective where it prevails in civil society. As one prominent US administrator said at the time of the Iraq genocide, ‘you’ (the ordinary folk) can judiciously examine, analyse and record history. But ‘we’ create history for you to analyse. And while you are thus engaged, we will have created more history at our own will, which future generations of fools will attempt to interpret, decipher and analyse.

    “The ‘perahera’ will have long since moved on by then!

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      @Lasantha, you seem not to have knowledge of fundamentals.

      No country’s ‘politics’ (including Sri Lanka’s)can be described in legal terms or analysed. To attempt to do so is a silly exercise and worthy only of fools! Your ‘sadness’ in that respect is of little value and only makes you look ridiculous..

      What has to be done is to analyse the functioning of a legal system, legally. This is what not only lawyers, opinion makers but also we people must do as the law is very close to us. This is where politicians and policis must bow their heads. We in Sri Lanka, do not have that. But that does not mean that we must stop taking of that. What you are saying amounts to that. What kind of stupidity is that?

      Your comparisons with Guantanamo etc are also of little relevance whatever you may quote of American military men’s boastings. The Amercian public’s anger and organisations such as ACLU’s legal activism on Guantanamo Bay and Abu Ghraib was what helped to turn Amercial pubic opinion around, helped defeat George Bush and helped Obama to come to power – TWICE.

      They had those balancing factors whatever the hawks may say in the military establishment. And heaven forbid, I am not saying that Obama is perfect but at least, he is a tad better that that moron Bush. I lived in the America of Bush’s making at some point and vowed never again.

      Your point has no substance therefore comparatively. If we have that legal activism here and efforts of movements like the ACLU rather than fat cat NGO’s, Sri Lanka would have been a different place.

      So do reserve your sadness for the things that matter. If we let go even of this slight capacity that we still have to look at the operation of the law through legal eyes, we would be finished as a country.

      Do you – in far away OZ – and writing to thim forum through some sort of wish to make your views (as silly as they are many times and I have always wanted to respond but not had the energy sometimes)known, wish that to happen? Please have the courage to answer.

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      Mr Pethiyagoda, the ‘perahera’ may move on but we still need people of ability and objectivity to look at issues and matters soberly including from the legal side, when that is relevant and from the political side, when that too is relevant.

      I fail to understand what you are saying or trying to say – is it that the law should not be examined legally but only politically?!! True, all things are ultimately political, whether from a personal or public angle but should we not keep an eye on that’distant star’ or the ideal that we must aspire to?

      Why must yo try to drag everything down to the gutter level of politics?

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    Kishali, the despot is too heady with power to listen to reason.The henchmen are afraid to challenge him for fear of reprisals. They can’t even whip up some courage to defy the `captain’ of the `ship’ because a weak political opposition led by a spineless leader is there to ensure its smooth sailing for years to come! The country hitting the rock bottom is almost a certainty now.

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