22 May, 2019

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The ‘Bleak’ State Of Rule Of Law In Sri Lanka

By Bhavani Fonseka

Bhavani Fonseka

Today, the 65th National Day of Sri Lanka, offers a moment to reflect on achievements since independence. Although more than three years have passed since the end of the war in 2009, prospects for justice, peace and reconciliation continue to elude the tiny island in South Asia. More recent developments highlight the crises in the rule of law sphere, which, if not addressed, can immediately have a chilling effect on hopes for a functioning democracy and sustainable peace in Sri Lanka.

The turbulent last months of 2012 witnessed a rise in threats and attacks against the judiciary, culminating with the impeachment last month of the 53rd chief justice of Sri Lanka, Dr. Shirani Bandaranayake, in a campaign widely considered as a political vendetta by the ruling government. The impeachment was seen as a direct result of an order given by a bench headed by Bandaranayake on the constitutionality of the Divineguma Bill, which was introduced by President Mahinda Rajapaksa’s younger brother Basil Rajapaksa, the powerful minister for economic development. The motion was handed over to the speaker, Chamal Rajapaksa, elder brother of the president, on November 1, 2012. Soon after, the Supreme Court ruled against the bill, and with it saw a most efficient and speedy trial of the chief justice.

A Parliamentary Select Committee (PSC) was established soon after and found Bandaranayake guilty of three of the 14 charges, but the process itself has been widely criticized nationally and internationally. The chief justice and her lawyers walked out of the proceedings due to several reasons, including not being provided sufficient time to respond to the charges and being unable to call witnesses. The demeaning nature with which a sitting chief justice was treated was demonstrated when ministers, members of the PSC, started heckling the Bandaranayake during proceedings. The lack of due process within the PSC was further confirmed when the four opposition members of the PSC walked out of proceedings, and soon after, the chief justice and her legal team walked out.

Protests against the impeachment were seen across Sri Lanka. Protests and boycotting of courts by lawyers were seen in late 2012 and in January 2013, some ending in violence when peaceful protesters were attacked by thugs. The Bar Association of Sri Lanka, in a strongly worded statement issued in December 2012, criticized the impeachment process and refused to recognize an appointment that was a result of a flawed process. In a ruling on January 3, the Supreme Court held the impeachment process not in adherence to the Constitution, calling into question the legality of the PSC and thereby raising questions of its standing and findings.

Despite the mounting protests and the likelihood of a constitutional crisis, there was no stopping government plans to impeach Bandaranayake. The findings of the PSC were debated in Parliament January 10-11, and a vote of 155 to 49 passed in favor of the impeachment, cementing the fate of the first female chief justice in Sri Lanka. Within 24 hours, the president had signed the impeachment papers. Soon after, Mohan Pieris, former attorney general and a loyalist of the Rajapakse family, was appointed by the president as the next chief justice.

This dreadful saga is the most recent in a string of devastating attacks against an ailing judiciary and a reminder of the many opportunities lost to reform and reconcile in postwar Sri Lanka. Although the government is quick to claim that progress has been made since the end of the war with the reduction of the number of internally displaced persons and construction of infrastructure, genuine problems persist among the people of Sri Lanka.

The lack of demonstrable progress resulted in the United Nations Human Rights Council (UNHRC) adopting a resolution in March 2012 calling for the full implementation of the government’s own Lessons Learnt and Reconciliation Commission (LLRC), a move supported by a cross-section of states, including the United States and India. In March 2013, Sri Lanka will be taken up again in the UNHRC. The United States last week discussed a move to present another resolution on Sri Lanka, a damning sign of the lack of progress on the ground.

The Commonwealth Secretariat has also raised concerns in recent weeks regarding the deterioration of the rule of law. This is an area to watch, with growing global criticism on the prospect of Sri Lanka hosting the Commonwealth Heads of Government Meeting in November 2013. Most recently, the International Commission of Jurists and over 50 eminent justices and lawyers from across the world issued a letter critiquing the impeachment, with many signatories to the letter emanating from the Commonwealth and the South, dispelling government claims of a Western conspiracy.

The reality is bleak, but not all is lost. There is still room for the government to respect the Constitution of Sri Lanka, adhere to rulings of its Supreme Court and implement the findings of its own LLRC and other commissions. It is incumbent on the government to demonstrate it has the political will to implement its own promises and pledges and take steps to respect, protect and promote human rights and the rule of law. The question, though, is whether or not the government is genuinely interested in democratic reform, peace and reconciliation.

*Bhavani Fonseka is a senior researcher at the Centre for Policy Initiatives in Sri Lanka. She’s an Asia 21 Fellow. This article first appeared in the Asia Society Blog

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Latest comments

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    Nothing new or interesting here – a bunch of platitudes!

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    Moral and Ethical values have to be in place before Rule of Law and economic prosperity can be Achieved. Example, Knowledge will be ineffective if the Heart is Corrupt, Money is of no Value at the Cost of Health. Death of Democracy (man-made Laws enforced through elected politicians) in its birth place is the result of not addressing the root causes of Moral and Ethical Values.

    Good civil laws are the greatest good that men can give and receive. They are the source of morals, the palladium of property, and the guarantee of all public and private peace. If they are not the foundation of government, they are its supports; they moderate power and help ensure respect for it, as though power were justice itself. They affect every individual; they mingle with the primary activities of his life; they follow him everywhere. They are often the sole moral
    code of a people, and they are always part of its freedom. Finally, good civil laws are the consolation of every citizen for the sacrifices that political law demands of him for the city, protecting, when necessary, his person and his property as though he alone were the whole city.

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    This is what senior researcher’s come up with ?

    Cancel the funding, anyone with half a brain knows all this by reading the papers !

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    For the sake of writing exactly nothing new, stale news Bhavani.

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    Sixty five years after Independence I still think the biggest mistake British ever did was to invade Sri lanka and trying to educate and make them civilised and to teach good governance to our ever uncivilised, uncultured and uneducated Sinhala Political Gas Gembas.

    They built tar roads, schools,universities,education, hospitals,brought in Tram cars, trolly busses, lorries, trains, cars, trained and installed all armed forces, police, law, justice and courts, radio, music,theater, films, Hotels, gardens, Holiday bunglows, Tea, rubber, coconut plantations, Airports and Airplanes, Harbours, ships and dockyards, all private and public companies, Electricity, water and gas etc…etc……all for the sake of civilising, educating, economic development and directing the ever primitive veddas who were before under the control of ever brutal kings who gave them untold and uncivilised sufferings and punishments to keep them under control.

    Famous Historian Kelaniya Mervin Silva knows how kings ruled, how kappams were taken from citizens,how caste system kept people ever under kings control doing the same work generation after generation and what brutal punishments they gave. Please ask him.

    Unlike other 80 odd countriess which British invaded and governed including USA, Canada, Australia,New Zeland, Singapore, China,malaysia,Korea,Japan,South Africa,Thailand, Phillipines, India etc, who are doing very well now……….British would have avoided invading our country to civilise and educate them to be good rulers and good citizens and to leave our Gas Gemba cave men to ever live in tree tops humming pel kavi listning to ‘freedom of the Kata Kirilli or Gomriththa.’……. wearing their national dress which was Amude with bare body, (read SL history) eating helapa, aggala and kurakkan, chewing Bulath and going about in Gon Karatte singing vannam…….with a “Polkatu” Coconut lamp.

    British trying to Civilese ever uncivilised Sinhala Donkey crooks, which the saying going as…… leoperds never change their spots have come into past. This is what the current President wants to take our country 65 years after Independence.

    Now president say in Independence day speech that foreign countries to stay away from internal matters in Sri Lanka…….

    That means asking him to give freedom to do whatever he wants…….such as arrest, torture, jail and murder anybody who talk for justice, liberty, democracy and freedom of the people and their rights, white van abductions, killing dozens of prisoners in a daylight murder, arrest and prosecute from opposition parties upto chief justice for giving the proper verdict, allow him and his family to acquire anything they want illegally, take unlimited amount of commission, bribes, black money with fraudulent contracts,giving bribes to buy whoever he wants, murdering journalists, opposition party members, installing unfit uneducated over 600 odd Ham bantota family and party goons to top Govt. state and VIP positions, threat and intimidation on free media journalists and human right activists etc..etc..

    WELLCOME TO SRI LANKA SINHALA GAS GEMBA’S GRACELAND…………………
    AND PRESIDENT RAJAPAKAS KOLLUPITIYA “GON GAHANA MANDIRAYA”….. ( Part of the 435 new deserving name and site changes in Colombo)Before it was called Araliya Gaha Mandiraya.

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    Hat off to you, Bhavani, the country needs more spunky and enlightened women like you!

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    well said Jayantha..Keep writing…Don’t blame politicians but people of the country cause they vote them and if there is an election tomorrow, they will be voted again and again ..So whose fault?

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