By Basil Fernando –

Basil Fernando

Tamils living in the North and East have a complained of the loss of all their rights. Most people in the South ignored these complaints. Some even said that such deprivations are punishments for what the LTTE was. The assumption was that such treatment would not be extended to the South.

However this has proved to be an illusion. The government, through its spokesmen, now clearly declares that people in the South have no claim for greater protection of their rights.

In fact, the claim is that there is no scheme for the protection of citizens in Sri Lanka.  It is quite openly claimed that under the Sri Lankan constitution of 1978 the judiciary has only the role of hearing cases and the judiciary do not have the “special” status of being a branch of government that has the obligation to defend the rights and the freedoms of the people.

Sri Lanka has thus has become a level field, where no one has any rights and there is no branch of government that has the specific duty to ensure the protection of the people.

The constitution is held against the people. It is said that, right or wrong, things must be done according to the book. The book gives one hundred per cent of the power to the executive president and thus the people have zero status.

Justice Wigneshwaran in his speech to the Judicial Service Association identified the problem thus:

The role of the President appears to be fashioned in the image of a King

It was said that the President of the United States was a dictator for four years. In the case of Sri Lanka not only is this dictatorship extended by two more years, but it applies with far greater force here! The Cabinet is the President’s creature. Most importantly, by allowing Members of Parliament to become members of the Cabinet, Parliament as an institution has became emasculated.  Members of the Cabinet are beholden to the President, as they hold office at the President’s will and pleasure. (Vide Article 44(3) –ibid).   They serve their Master and do not hold any allegiance to the institution of Parliament.  In the US, the House of Representatives and the Senate are completely divorced from the Executive.  The Legislature is not an appendage to the Executive, but actually acts as a check on the Executive.  With the evisceration of this separation, the Executive in Sri Lanka becomes even more powerful.  It is no surprise then that much respected stalwarts of Parliamentary Supremacy and Democracy in Sri Lanka have become starlets kept by the Executive today.

While the critics of the constitution point to the constitutional tomfoolery or the constitutional aberration that is found in the constitution, the government’s view, as expressed through its spokesmen, is that, rightly or wrongly, this is our book and therefore it has to be followed. Ironically, the government came into power promising to abolish the executive presidential system.

The impeachment move turned out to be the final test.  Among the critics of the government’s move, the United Nations Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, stated on the government’s move for impeachment :

“The misuse of disciplinary proceedings as a reprisals mechanism against independent judges is unacceptable.”

In her view, the procedure for the removal of judges of the Supreme Court set out in Article 107 of the Constitution of Sri Lanka allows the Parliament to exercise considerable control over the judiciary, and is therefore incompatible with both the principle of the separation of powers and Article 14 of the International Covenant on Civil and Political Rights.

The Commonwealth Secretary-General as well as the Commonwealth Lawyers Association (CLA), the Commonwealth Legal Education Association (CLEA) and the Commonwealth Magistrates’ and Judges’ Association (CMJA) also expressed similar positions. International experts from several countries, including Australia and some European countries, also explained in detail the position in their countries regarding the protection of judges from unfair removal. Sri Lanka’s senior-most judge C G Weeramantry also expressed his serious concern and stressed on the link between the rule of law and the independence of judges.

To all such expressions of concern, the government’s response, expressed through its spokesmen, is that the 1978 constitution is our book and this book does not recognize the guarantees that these experts are talking about.

Regarding the local critics, the government’s position is that for 35 years this constitution has been practiced, that judges were dismissed by mere change of constitution, the doors of the Supreme Court premises was closed till judges took oaths under the new constitution and judges were even stoned for giving adverse judgments. Since all these things did not provoke a protest as the present impeachment move has done, there is no legitimacy of protest and the government will do what has been done for the last 35 years.

Regarding the denial of a fair inquiry by an impartial and competent tribunal, the government takes the same view regarding the way things were done during this period. Besides, the government’s spokesmen vehemently argue, since the allegations are of a very serious nature, no such inquiry is necessary.

The methodology that has been proposed and followed is to give utmost publicity to the charges by the use of state media and thereby to suppress any protest. The proposed method therefore is trial by propaganda. And the propaganda is carried out day in and day out without giving any chance to express an opposing point of view.

Cultural Revolution Approach

What is being done now in this regard has resemblances to the method adopted during the Chinese Cultural Revolution. During this time, all those who had dissenting views against the close associates of Chairman Mao – who were later named the gang of four – were paraded in the streets with boards hung on them stating that they were traitors. Maximum propaganda was the mode in which the public trial was conducted and the victims punished. While there are vast ideological differences between the two situations, as far as the methodology of making accusations and ‘trials’ is concerned, there are glaring similarities.

It is not only in the case of impeachment that the practices of fair trial have been abandoned. There are allegations of thousands of forced disappearances, extrajudicial killings, illegal arrests and detentions, as well as all kinds of political reprisals, but following the legal process regarding such allegations has been abandoned on a large scale.

On the other hand, accusations are made against citizens in the public media whenever they are considered to be critics of government.

Thus, the year 2012 has seen a broad leveling throughout the country. Ironically, everyone is treated equally in that no one has any rights, including the Chief Justice herself.