By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

Nowhere in South Asia or indeed the entire world (excepting in failed states) would a responsible government hire thugs and party supporters to jeer and hoot at the Chief Justice of the country while she was leaving the superior courts complex to appear before a parliamentary select committee considering her impeachment.

Yet in Sri Lanka, this is what happened a few days ago. Nowhere in the world except in pariah nations would government members of parliament have been allowed to verbally insult the Chief Justice (Sri Lanka’s first woman Chief Justice at that) and her lawyers while they were participating in the deliberations of a select committee.

Yet this is what is reported to have happened on Thursday. Unable to bear the continuous insults, the Chief Justice’s decision to walk out of the select committee proceedings must be commended. Her courage in facing such an inquisition with head held high must be recognised.

Spewing of vile abuse against the head of judiciary

This is the culmination of a process that has brought Sri Lanka tremendous shame and lent credence to the claims of its detractors who refer to the country as a democratic graveyard. For the past several weeks, the Chief Justice was mercilessly hounded by government media propagandists as they spewed vile abuse on radio talk shows.

Blatantly contemptuous placards were carried by three wheeler drivers and lottery sellers right outside the seeming citadel of justice on Hulfsdorp Hill. State protection was provided for all these acts.

The government appeared to have abandoned all norms of ordinary decency befitting treatment of a human being let alone a judge, let alone the head of the judiciary. It appeared to have turned virtually mad in its desperate struggle to counter what has turned out to be a huge embarrassment for it.

No wonder that judges and lawyers throughout the country rallied to the support of the beleaguered Chief Justice, from provincial Bars as remote and diverse as Matara, Anuradhapura, Kandy, Jaffna and Vavuniya.

It was as if with a rush, the legal profession and the judicial service particularly in the outstations realized the great dangers that they were in (at last) and decided to push against the rock of executive humiliation of the judiciary with determination.

Walkout of the Select Committee a foregone conclusion

From the commencement of this fiasco, the issue was less the constitutionality of the process, (regardless of the vehement submissions made by lawyers appearing in cases challenging the impeachment), and more the fairness of the procedure followed and the clearly political timing of the impeachment itself.
Certainly the impeachment procedures as constitutionally stipulated violates basic norms of fair adjudication both domestically and on international standards.

They deny an appellate court judge even the most rudimentary rule of law safeguards afforded to a common criminal. But in previous impeachments, convention and good sense dictated that an unwritten line of propriety was not crossed. Through its intemperate fury at being challenged, the Rajapaksa government has however put paid to that past practice.

In no seemingly democratic country would a Chief Justice be subjected to an impeachment process distinguished by the inquiry committee’s inability to prescribe rules of procedure for its sittings (as pointed out by its members representing the Opposition in the public interest), its refusal to open the hearings for public scrutiny in the interests of transparency and accountability and its reported refusal to allow the Chief Justice’s lawyers to cross examine witnesses cited in the documents filed against her or to allow more time for her to answer allegations contained in a thousand page bundle of documents. Her walking out of the Select Committee proceedings this Thursday was therefore a foregone conclusion.

No need for a contempt law now

From 1999 to 2009, we had a Chief Justice whose conduct in and outside Court as documented opened up the judiciary to unrelentingly harsh public scrutiny. And as much as water rushes out when the walls of the dam is first breached, former Chief Justice Sarath Silva’s successors could do little but pay obeisance to the executive. It was when the judicial tide turned as a result of one humiliation being enforced a step too far that we saw the avalanche of executive anger being unleashed.

The Minister of Justice has pontificated to the media this week that the government plans to enact a contempt of court law soon. But let it be clearly said that there is now little purpose for such a law. The primary aim of a contempt law is to protect the administration of justice and the dignity of the courts while allowing for reasoned and crucial debate on the functioning of the justice system. Yet the administration of justice has already been rendered a snarling mockery and the dignity of courts has been remorselessly stripped away by this government and its media hounds. Day after day, the Chief Justice is attacked beyond all norms of propriety with a government giving the full seal of its approval. A contempt of court law has become quite redundant in this post Rajapaksa impeachment climate as much as the concepts of justice and fairness have also become redundant. This is undoubted.

Painful destruction of an independent judicial system

Those who willfully turned a blind eye to the internal politicization of the Supreme Court from the year 1999 onwards, those who were foolhardy or blinded by their own interests to applaud the handing of a blank cheque to this Presidency to do what it would with Sri Lanka after the ending of the conflict and those who looked away when the 18th Amendment was enacted, should now rue their folly and culpable ignorance.
In previous columns starting from almost a decade ago, predictions that this precise fate would befall the Sri Lankan judicial and legal system if there was no course correction were greeted with shrugs and smiles from members of the legal profession. Some condemned these predictions as unnecessarily dire. Others were cynical enough to say that the system had survived despite past beatings.

But now as we see a Sri Lankan Chief Justice humiliated by common ruffians who hold the money which they were paid in one hand while they shout slogans with their other hand upraised, these complacent characters may well ruminate on their unfortunate inability to recognise the warning signals. This column makes no apology for repeatedly stressing the most coruscating lesson to emerge from this cataclysmic upheaval, particularly for those of us trained in the discipline of the law.

Even if new struggles are born as a result of the ongoing inquisition cum impeachment of the country’s Chief Justice, this is the comprehensive end of Sri Lanka’s independent judicial system as we have known it since 1948. It is a sad day indeed.