By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

There is little doubt that the casual dismantling of Sri Lanka’s democratic institutions, as much as a pack of cards is routinely shuffled by seasoned card players, calls for deeply reflective thinking rather than shotgun reactions.

Necessity for a collective cathartic process

Indulging in outbursts of fury against the administration and predicting regime change, as if the structure of authoritarian rule that has been so carefully built post war can be destroyed in the twinkling of an eye as it were, may be personally satisfying but this is only to fool ourselves. If change does indeed take place, this needs to be happen through a solid and soberly rationalized understanding of how Sri Lanka’s crisis of democracy has come about and to a large extent, accepting that the blame is also ours. The time has come for a great collective call by Sri Lankans across religious, ethnic and societal distinctions that it is indeed ‘mea culpa, mea maxima culpa’. Indeed, this country’s purported intelligentsia needs to take this call very much to heart. It is only through this collective cathartic process that the country can be brought back to the democratic path, even if this may happen only decades down the line as seems very much the case presently.

The similes are ironic if not entirely appropriate. In 1999, when former Chief Justice Sarath Silva was appointed as the head of the judiciary by his onetime personal friend Chandrika Kumaratunga, bypassing one of Sri Lanka’s steadfastly rights friendly judges, the late Justice Mark Fernando, many were beguiled into dismissing dire warning signals for Sri Lanka’s judicial institution. Within a disastrous decade, the authority of Sri Lanka’s Supreme Court had been irretrievably undermined by a spate of judgments determined on personal or political considerations and characterized by unrestrained judicial autocracy to the extent of sentencing a lay litigant to jail for contempt of court. This unfortunate individual had persisted in citing the former Chief Justice as a respondent in an application and also resorted to talking too loudly in open court when pursing his application. Books and files were thrown at senior lawyers by the former Chief Justice, contempt of court was frequently threatened. The absurdity of it all was that these purportedly eminent counsel took the abuse lying down.

The truth about ‘Helping Hambantota’

These judicial aberrations that detracted from public respect for the Court are well documented and need no repetition here. Interestingly, this week’s admission by the former Chief Justice, who is now a vociferous supporter of the opposition, that he delivered the infamous verdict in the Helping Hambantota case ‘expecting that Mahinda Rajapaksa in turn would safeguard the rights of the other people but it is not happening today’ (see Daily Mirror, October 16, 2012) merely symbolizes the general pattern of law and justice being subordinated to political preferences at that time.
The Helping Hambantota decision, (Mahinda Rajapakse v Chandra Fernando, IGP and others, SC(FR) No 387/2005, SCM 27/03/2006), as much as the equally infamous decision in the Singarasa Case (Nallaratnam Sinharasa v Attorney General and Others, S.C. SpL (LA) No. 182/99, SCM15.09.2006) threw the law into tremendous disorder but lawyers and academics shied away from robust critiques due to the immeasurable fear that they had of contempt powers being used against them. In the Helping Hambantota Case, several absurdities predominated in the judgment, not the least being the former Chief Justice’s emphasis that a first information should be lodged at a police station rather than at the police headquarters. This was in the context of an opposition member of parliament lodging his complaint against the alleged misappropriation of money by then Prime Minister Mahinda Rajapaksa at the police headquarters. One may have been led to infer therefore that if the complainant had lodged his complaint at an ordinary police station, the Court would have been kinder to him? Such satire may be forgiven as it is infinitely irresistible in the context of that case.
Moreover, the virtual veneration accorded by the Court to the Secretary to the Prime Minister (currently the Secretary to the President) in accepting his word that the moneys had been dealt with properly notwithstanding the central impropriety of such public moneys being deposited in a private fund, was striking. For the idealists among us who would have, contrary to stubborn reality, tried to grapple with the legal logic behind this judgment, it is no doubt be a relief to find the former Chief Justice now explaining precisely as to why he handed down that judgment.

Incongruous contradictions between theory and practice 

This decision is also notable for other reasons, most particularly as illustrating the insidious politicization of the Attorney General’s Department. At the time that the initial complaint against then Prime Minister Mahinda Rajapaksa was lodged, there was open hostility between then President and head of the Peoples Alliance, Chandrika Kumaratunga and her Prime Minister. The fundamental rights petition by the then Prime Minister to the Supreme Court challenging the criminal investigation being launched against him (with the blessings of the then President) was during that turbulent period. What was amusing was the spectacle of the Attorney General resisting interim relief being granted by the Court in that fundamental rights case prior to the elections but deciding “not to continue” with the case after the election of the petitioner as Executive President of Sri Lanka. The reason as to why the Attorney General ‘did not wish to continue’ after the elections was apparently upon “further material” being submitted to court which was, however, not disclosed (see at page 3 of the judgment).

Now, we see the former Chief Justice campaigning for good governance and the abolition of the Executive Presidency and feeling so complacent to state his reasons for handing down the Helping Hambantota decision in a public forum despite the same terribly incongruous contradiction that it poses in regard to what is meant by impartial justice. Making this point is necessary not to emphasize the personal peccadilloes of Sri Lanka’s most controversial Chief Justice since independence but to underscore the nature of our own society and our own media which greets such statements as a matter of course, gives them publicity and allows the makers of such statements to preach good governance as much as if there is no fundamental contradiction between the two. This is where the analysis should be directed to and this is where the outrage should arise in regard to the question of what we mean by democratic governance.

As much as the concept of an independent judiciary disappeared proverbially into thin air during 1999-2009, immense wonder was felt by many among us at the frivolously easy manner in which one man was able to virtually destroy a once respected institution without so much as a say so. In particular, the silence of the legal intelligentsia on justice being rendered a mockery was remarkable. Further, this was looked upon, if at all, as a problem for the Bar and for legal professionals as if the value of an independent judiciary was not essential for the continuation of democratic life. Now, as we look upon unprecedented happenings such as political mobs attacking a court house with impunity, the President (through his Secretary) calling the Judicial Service Commission for discussions ostensibly on the budget allocations and the Secretary of the Commission being pistol whipped while waiting in his car to take his children home, it may be apt to remind ourselves of the genesis of this disaster that has befallen us.

Facing the nature of the beast

The simile is therefore logical and quite consequential. This Presidency’s destroying of the country’s democratic institutions was accomplished as easily and as airily as Sri Lanka’s judiciary was subverted. And as much as many were silent when the judiciary was subverted, there were many who virtually gave the President a blank cheque to do what he would with the country in the fervor of winning the war against the Liberation Tigers of Tamil Eelam in May 2009. Calls for restraint fell on deaf ears. The 18th Amendment was welcomed with a shrug and a snide comment. The 17th Amendment’s destruction was looked upon as inevitable. Mea culpa should indeed be our most fervent cry.
It is good therefore that public opinion, as expressed by several individuals and groups, is to the effect that the crisis facing the country during the past weeks in relation to the intimidation of the Judicial Service Commission and the attack of its Secretary must be looked at dispassionately. The responsibility of the Bench and the Bar in contributing to the exceedingly unfortunate situation in which it finds itself must indeed be conceded.

Certainly there should come a time in every individual’s life when personal ambitions and glories should yield to the greater good. This is so when the democratic survival of a country in which one holds citizenship is in issue. This time has now come for judges and judicial officers as well as all of us who possess a basic conscience, to examine the nature of the beast that stares at us, in our faces. Assuredly, we ignore to do so at our own peril.