By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

As lights are dimmed over Sri Lanka following prohibitively crushing electricity hikes, the enveloping darkness is menacingly symbolic of the crisis which our society is facing.

This is even as the politically privileged siphon off massive amounts of money for useless extravaganzas, including an airport in the deep South to which overseas airlines are reportedly suspending operations, not long after a grand ceremonial opening. Wastage on luxury cars and other expenses associated with the upcoming Commonwealth summit is all part of the same excruciatingly painful pattern.

Indeed, we appear to be coming uncannily close to Uganda-like madness in the age of Idi Amin, minus the famously hyped cannibalism. Dissent is crushed or petrified and the economy groans under the unbearable weight of increasing debts by government entities to state banks. Verily, it does not take a soothsayer to predict our dismal future.

Lack of proactive thinking by the opposition

As part of this general chaos, the main opposition United National Party added more grist to the mill of its gleeful detractors by announcing that abolition of the Executive Presidency would not form part of its constitutional reform proposals. Instead, the powers vested therein would be curtailed. Moreover, somewhat peculiarly combining some features of the earlier ceremonial version of this Office, it has been proposed that the incumbent would need to step down from active politics (Daily Mirror Online, Thursday 16th May 2013).

It is predictable that the UNP, under this leadership, would be reluctant to give up its claim to the Presidency which it birthed but which, since then, has been found to be so disastrously wrong for Sri Lanka. This once mammoth party is now fundamentally crippled in terms of its political credibility. Its careless abandonment of a campaign plank that has substantive political resonance is therefore unsurprising.

Reacting to the Government’s diversionary tactics

Certainly this Government remains uniquely privileged in that its opposition (political party as well as general civil society) can only react weakly to each diversionary tactic advanced by it rather than proactively provoke the ruling party. In that sense, the Bodu Bala Sena (BBS) is an extremely successful ploy to divert attention from corruption, mismanagement and creeping militarization of the governance process.

The BBS indeed stated a few days ago that it would step into the streets with canes to take action against traders who, as they said, ‘inappropriately’ display the message of Vesak through cards, lanterns or the like. Such claims would have rightly been dismissed as the lunatic fringe if not for the patronage that this group enjoys at the highest political levels. Vesak is the traditional festival of lights symbolizing the purest inner serenity which Buddhism signifies.

Against this, the imagery of rowdy monks brandishing canes in order to mete out summary justice to unfortunates who offend their notion of what is ‘appropriate’ is anathema. So we are to assume that it is the BBS which will decide, in their infinitely perverted wisdom, that a particular action is religiously ‘appropriate’ or not? There are, of course, laws dealing with such matters and courts of law to adjudicate into relevant disputes. But these seem mere irrelevancies under this Government.

Retreating from protecting liberties

In any event, the law has been stripped of all meaning. Courts are retreating from previously steadfast protection of individual liberties and advising moreover that disputes between persons and government institutions should be settled between themselves. The public’s role in regard to the abdication of the Court’s constitutional role is a matter that we will return to later. As an ousted Chief Justice is further humiliated before a Bribery and Corruption Commission which turns a Nelsonian eye meanwhile to the gargantuan corruption by government politicians, we retreat to the Dark Ages, metaphorically as well as literally.

Generally, (though this has been historically challenged as being too sweeping a generalization), the Dark Ages denotes a period devoid of intellectual reason in early medieval Europe, where critical thinkers were scarce on the ground. Blind religious dogma dominated thought. In contrast, the Renaissance which followed brought a burst of exuberant rationality accompanied by religious and cultural freedom, relatively speaking.

Totally inappropriate use of the PTA

But Sri Lanka appears to have little reason to look forward to a Renaissance of its own. And those who remain naively surprised by the arrest of Muslim politician Azath Salley under the Prevention of Terrorism Act (PTA) must be reminded that leftist political activists of Sinhalese ethnicity were among the first persons arrested after the PTA was enacted in 1979. Down the years, the PTA was excessively abused, not only in relation to individuals of Tamil ethnicity suspected of terrorism but also in regard to Sinhalese and Muslim dissenters. In bolder times, we had the Supreme Court authoritatively intervening in such instances.

In one particularly egregious case for example, the arrest and detention of a senior customs officer was ruled to be unconstitutional by the Court on the basis that there was no reasonable suspicion established of any unlawful activity on his part, (Weerawansa v Attorney General ((2000) 1 SLR 387). The Criminal Investigation Department (CID) had merely informed the Defence Minister, (then President Chandrika Kumaratunge) of willfully false and unreasonable conclusions, thereby misleading her into issuing the warrant. The Court found that there was no independent exercise of judgment by her.

Utilising solid precedents uniformly 

These are solid precedents that need to be uniformly applied regardless of the political colour of the establishment. And relevantly to public scrutiny of the judicial role thereof, a friend sent me a message last week conveying several interesting questions advanced by a reader of this column. One of these questions which is immediately relevant here, is as to whether a judicial order can be discussed in the public domain on its legal merits/demerits without fear of contempt charges? These are issues that have been examined previously in detail in these column spaces. Suffice to reiterate however that fair and reasonable critique of judgments is very much part of the democratic process. Openness of adjudication processes buttresses the maxim that ‘justice must not only be done but must be seen to be done’ and promotes three important aspirational attributes of the judiciary, namely, impartiality, accessibility and effectiveness. Public scrutiny of the judiciary constitutes moreover a democratic check on judges who exercise public power.

Dispelling ignorance through reason

Yet while judgments may be scrutinized, scurrilous and unwarranted attacks on the judiciary are prohibited. And in deciding these questions, competing interests of an individual’s right to critique the judgments and the judiciary as against the collective need to safeguard the administration of justice, are carefully balanced. These are salutary principles that were sought to be incorporated into a Sri Lankan Contempt of Court law some years ago. This law has yet not seen the light of day. Yet India has such a law. Public criticism of judgments in that country as well as in Nepal, Pakistan and Bangladesh is robust. It is only Sri Lanka which lags behind, yet again.

In conclusion, it must be said that the Dark Ages was dispelled only by reason and intellect. By this, I do not mean dry and infertile preoccupations around the conference table but rather, the exercise of vibrant intellect that leads to practical challenge of the political and religious orthodoxy, without personal agendas.

Sri Lanka needs such men and women of unrelenting bravery in these dark times. Perhaps then, with time and resoluteness, our Renaissance will dawn. Or at least, we can hope.