By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

If an objective perspective is brought to the calamitous events of the past few months precipitating Sri Lanka even deeper into a yawning abyss of disorder and non-governance, there is much to marvel at.

A difficult history to forget or forgive

For example, even though a new found activism on the part of lawyers in this country was, to borrow Hobbes’s injunction in a different context, ‘nasty, brutish and short’, the very fact that such activism was evidenced at all, was a pleasantly welcome surprise. Such cynicism is natural. During the past decade, it was the Bar which genuflected most unbecomingly before the executive and equally unforgivably, reneged on its duty in the public interest to raise warning signals over the obnoxious 18th Amendment to the Constitution among other pieces of legislation.

Lawyers and retired judges were jostling for positions, perks and privileges when the President made direct appointments to important constitutional commissions disregarding the 17th Amendment This is a history that is difficult to forget or to forgive.

So given such abysmally low expectations, we applaud even that limited extent of conscience that was displayed by members of the Bar. And in such a spirit of weary tolerance, we can also only be gently remonstrative at the sight of counsel who at one stage, protested vociferously against the impeachment but a mere month later, meekly attended the ceremonial sitting to welcome the 44th Chief Justice. Even more ludicrous were those who protested in public but surreptitiously extended their wishes to the incumbent in private.

The phenomenon of pseudo resistance

Quite apart from the sorry spectacle reflected in such duplicity, this was the great betrayal of others from the legal community who had genuinely committed to the fight as well as those judges who, shaking off all timidity and recognising that the basic survival of the judicial institution was at stake, boldly gave their signature to challenging judgments. Let it be said very clearly that when this lunacy is past and these events are recorded for posterity, the country will be grateful to the judges in particular who refused to let an unjust impeachment and gross humiliation of the head of the judiciary by parliamentarians, go by without challenge.

The hasty withdrawal of the leadership of the Bar Association of Sri Lanka from even the momentary courage that it displayed in regard to the impeachment of the 43rd Chief Justice was the other great betrayal. As a friend remarked aptly enough last week, this is what is termed as ‘pseudo resistance’.

In stark contrast, the Pakistani Bar went all out in its defiance of the now ousted President Pervez Musharraf and brought him down from an even loftier pedestal than his Sri Lankan counterpart. And therein emerges the two contrasting stories of true resistance and pseudo resistance. Certainly, President Mahinda Rajapaksa may well be excused for guffawing boisterously and uncontrollably at the manner in which the legal profession was brought to heel.

Unexpected emergence of sudden squalls

But even given these great betrayals, as much as a sudden squall leaves the sea uneasily motionless, the seeming somnolence that now lies over the functioning of all courts in Sri Lanka does not detract from the fact that it is on the boil underneath the surface.

At what point these tensions may surface again is anybody’s guess. Certainly there is no longer any need for us to enact a law codifying and modernising the law of contempt. If  Sri Lanka’s Parliament refuses to follow two superior court judgments in regard to the impeachment of the Chief Justice, what else remains to be said? In any event, throughout the past months, abusive parliamentarians and their uncouth propaganda hounds made a mockery of the very notion of contempt. Yet they were given complete state protection.

Equally importantly, the issue of contempt is attracted by criticism of judgments as well as scrutiny of the administration of justice. But this need to criticise arises in the contest of a functional juridical system. Sri Lanka has now removed itself from the ranks of civilised nations possessing such systems. So what is left to criticise further? Hereafter jurisprudential analysis will be an empty exercise, worthy only of those who have nothing better to do.

A blindly adoring citizenry

Aside from these reflections on the state of the country’s law and legal systems, certain home truths need to be articulated. True, the misfortunes now visiting Sri Lanka were brought about by a political leadership drunk with power. However, one cannot ignore the responsibilities borne in this regard by a blindly adoring citizenry who believed that the keys to the kingdom could be handed over without fear to the leader who had decimated terrorism.

The plight that the Sinhala citizenry is facing, and what generations yet unborn will inevitably face, is perhaps poetic justice for such a colossal mistake. Forced to cope with massive corruption in almost every aspect of government, (let it be education or the basic supply of water), we will learn the terrible consequences of what we acquiesced in. We will put up with increased madness in authority at our own cost. Extended lengths of detention, almost epidemic gang rapes which go undetected, the quite avoidable execution of a helpless young housemaid in Saudi Arabia and the summary refusal to grant visas to a high level delegation of the International Bar Association are all symptoms of this same disease. We will learn to suffer and to revolt when the madness has run its course.

The foremost task before us

The Anglican Church last week was both honest and brave in issuing a Pastoral Letter calling for a Day of Lament as the nation approaches its independence day. It acknowledged that these were ‘terrible’ times where the rule of law has ‘completely collapsed’ and we do not seem to be a constitutional democracy any longer.

Recognising our collective mistakes in this manner takes courage. Yet this can be the only starting point for the abolition of this monolithically dictatorial Executive Presidency and reversal of the ravages brought about by the 1978 Constitution. This is the foremost task now before the Sri Lankan citizenry. The hour may well be the darkest before the dawn.