17 November, 2018

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The Judicial Mind In Sri Lanka; Responding To The Protection Of Minority Rights

By Jayantha de Almeida Guneratne, Kishali Pinto-Jayawardena and Gehan Gunatilleke

When multiethnic and multi-religious societies are confronted with challenges that test the limits of coexistence, governments may be tempted to resort to populism or political expediency. Sri Lanka’s relatively short post-independence history is unfortunately riddled with examples of such compromises. Minorities have been victimised throughout this country’s history. They have had nowhere to turn, except perhaps towards the only institution that is tasked with checking power: the judiciary. Sri Lanka’s judiciary has been called upon time and again to vindicate minority rights in the face of overwhelming oppression by the other organs of government. This study has essentially sought to examine the judiciary’s record in rising to and meeting this enormous challenge.

new coverAt the heart of the post-independence mandate of the judiciary to protect the rights of all communities was Section 29 of the Soulbury Constitution. As detailed in the introduction of this study, the fundamental thinking behind the protection of minority rights flowed from this constitutional provision. However, the contents of this provision were consistently undermined throughout the survival of that Constitution, and in 1972, were omitted altogether from the new Republican Constitution. The gradual undermining of Section 29, culminating in its ultimate omission, in many ways reflected the slow deterioration of minority rights in Sri Lanka.

The first Part of this study examined in detail the judiciary’s response to issues of language rights, employment rights, land rights and other basic liberties including the freedom of religion. In each case, the specific treatment of minorities was juxtaposed with the general jurisprudence on the issue. In each case, barring a few exceptions, the judiciary’s treatment of minorities was fundamentally different to the general dispensation on the issue. The unmistakably divergent treatment meted out to litigants from minority communities, in the very least, raises serious doubts over the objectivity and impartiality of the courts. As a common trend, the judiciary appeared to have been unable to produce consistent jurisprudence across ethnic and religious lines on matters of language, employment, land and religious freedom. The cases analysed in this Part bear witness to this trend.

This trend brings us to the question of whether the courts too were partially to blame for the build up of minority frustrations in Sri Lanka. The meticulously documented history of the ethnic conflict in this country confirms that discrimination in terms of language, employment, land and religious freedom was perhaps the root cause of the crisis. The political space afforded to minority communities seeking equality and justice steadily diminished during the post-independence and republican eras. Thus one of the only democratic outlets for frustration was perhaps litigation before the courts. The judiciary’s failure to consistently uphold the values of equality and justice no doubt exacerbated these frustrations. The rise of Tamil militancy in Sri Lanka, therefore, cannot be divorced from institutional failure, including that of the judiciary, to address genuine grievances. This study in the very least alludes to, if not proves, some level of institutional culpability on the part of the judiciary with regard to the slow burning crisis that eventually snowballed into ethnic conflict.

The second Part of this study deals with the judiciary’s role in protecting minority rights in the context of public security. The significance of the disparity in judicial treatment is perhaps evidenced more strongly in the case of public security jurisprudence. This Part of the study examined in detail twenty-four landmark cases involving public security and evaluated the judiciary’s response to the individual rights at stake. A quantitative analysis of the cases reveals a dispiriting transformation of the judiciary over the three distinct eras examined in this Part. Each identifiable era was analysed in terms of a quadrant consisting of the court’s decision in favour or against the detainee or accused (vertical axis) and the perceived political threat involved (horizontal axis).

At one end of the spectrum lie convictions by the courts, despite strong claims of rights violations or procedural impropriety. These convictions demonstrate the judiciary’s active role in the suppression of individual rights in light of public security considerations. Cases such as Amirthalingam, Tissainayagam and Sivalingam fall squarely within this category.

Next, dismissals of rights applications, i.e. either fundamental rights applications or habeas corpus applications, demonstrate the judiciary’s reluctance to intervene to protect individual rights in light of public security considerations. In such cases, the judiciary’s role is less direct. It is the judiciary’s reluctance to check the executive that permits the rights violation to continue or to be left unaddressed. Cases such as De Saram, Navasivayam and Nimalaruban fall into this category. Next, the granting of relief, demonstrates the judiciary’s willingness to acknowledge the injustice caused to the individual. Such cases involve the judiciary intervening to check executive action and to order the release of the individual, often alongside the payment of some compensation. Cases such as Padmanathan, Ratawesi Peramuna and Weerawansa fall into this category.

At the other end of the spectrum lie extraordinary cases of judicial activism in favour of individual rights. These rare cases set important precedents for the future, where the individual’s rights were upheld despite the public security considerations at stake. Joseph Perera and Machchavallavan are perhaps the only cases that fall into this category.

We illustrate the actual threat the individual may have posed to the state from the perspective of the executive. There is some level of political speculation involved in locating cases within this spectrum. For instance, in Tissainayagam’s case, the official reason for his conviction was that, by falsely accusing a predominantly Sinhalese Army of killing civilians, he incited retaliatory acts of violence by Sinhalese readers against Tamils, as he himself was a Tamil writer. As absurd as the contention was, the real reason for Tissainayagam’s conviction was perhaps the peripheral threat he posed to the state by writing on the war, and perhaps the unsubstantiated belief that he was funded by the LTTE.

At one end of the spectrum lie cases where it was revealed to the court that the individual was of no threat to the state whatsoever. Such revelation came from the executive’s own decision-making, such as a decision to release the individual. The cases of Padmanathan and Gnanamuttu fall into this category.

Next, the executive may perceive a peripheral threat from the individual. Such threat is often linked to certain transactions the individual might have had with other individuals or groups committed to overthrowing the government. Hidaramani’s peripheral link to the JVP, or, as mentioned above, Tissainayagam’s unsubstantiated transactions with the LTTE, justify locating these cases within this category.

Next, the executive may perceive a more direct threat from the individual owing to a belief (either proved or unproved) that the individual belonged to a group that was in some way committed to overthrowing the government or effecting a regime change. In this respect, the Jaffna University Students’ case remains a ‘hard’ case, as it could be argued that the perceived threat to the state was peripheral since these students were merely involved in peaceful protests against unwarranted violence perpetrated against students in Jaffna. However, from the perspective of the executive, the students’ alleged links to Diaspora elements that supported the LTTE perhaps placed the students at a higher threat level than ‘peripheral’ or ‘transactional’. Since the spectrum essentially speculates on the threat level from the perspective of the executive, it is perhaps more appropriate to place the case in the category of ‘membership’, i.e. the individual being a member of a group or movement aiming to overthrow the government or effect a regime change.

At the end of the spectrum lie cases where the perceived threat level is at its highest. Such cases invariably involve individuals who are leaders of the initiative to overthrow the government, effect a regime change, or simply establish a separate state. Thus cases such as De Saram and Amirthalingam clearly fall into this category.The ambitions to overthrow the government need not be through violent means. Hence the Ratawesi Peramuna case and certainly the White Flagcase fall into this category—given the fact that Sarath Fonseka posed a significant threat to the government and perhaps came closest to effecting a regime change in the post-war era.

In the era in which the public security doctrine witnessed its inception and germination, i.e. 1947 to 1979, the judiciary’s approach was largely contingent on the political contentiousness of the case. The judiciary appeared to be largely conservative in matters concerning public security. Yet it did not appear to be racially biased at the time. However, the most contentious case of the era, the Amirthalingam Trial-at-Bar involved a political minority and saw a regressive judgment being delivered by the Supreme Court whereby it rejected the legitimate claim of the accused that he had been deprived of procedural propriety.

The next era, i.e. 1979 to 2009, was marked by the enactment of the PTA and witnessed the rise of counterterrorism as an overarching rhetoric in dealing with political dissent. The era saw a mix of progressive, conservative and regressive judgments involving public security. However, disturbingly, many cases involving Tamil individuals suspected of ‘terrorism’ ended in decisions against the individuals. The progressive judgments of the courts invariably involved petitioners from the majority community or petitioners who no longer posed any perceivable threat to the state. This trend significantly depreciated the credibility of the judiciary as an objective institution and set the stage for a new dispensation of rights.

The final era examined in Part Two of the study, i.e. the post-war era, witnessed a complete transformation in the rights dispensation in Sri Lanka. A judiciary, previously seen as cautious, then deferential, was now largely irrelevant. The judiciary in the post-war era was unwilling to vindicate rights in the face of public security regardless of the ethnicity of the individual concerned. The transformation of the judiciary to a political institution was completed at the end of the war, and a new populist rights dispensation—where the Executive President granted rights in his discretion—emerged to replace the role of the judiciary.

The significance of the overall analysis is perhaps the total absence of positive outcomes in cases involving Tamil individuals who posed any level of threat (even peripheral) to the state, barring the extraordinary ceasefire era case of Machchavallavan. Subject to the aforementioned limitations of this study, this observation reflects the lack of willingness on the part of the judiciary over a period of more than sixty-years to uphold the rights of minorities when public security was at stake.

A realpolitik analysis of the judiciary’s transformation might produce a compelling explanation. The Supreme Court, for instance, may have been guided by the political space afforded to it by the government of the day. In an era where its independence was preserved and independent decision-making was expected of it, the judiciary was willing to check the executive to some extent. Yet, progressive pronouncements were only deemed appropriate when the threat involved was relatively insignificant. Hence cases were judged on an individual basis during the pre-1979 era. However, with the introduction of ‘counterterrorism’ as a distinct and powerful rhetorical tool to suppress dissenting voices, the judiciary struggled to maintain its decision-making space. The country was at war, and the Supreme Court could not afford to be seen as sympathetic towards the ‘enemy’. Hence a race-conscious judiciary emerged, where the courts accepted without question the routine classification of Tamil litigants as ‘terrorists’. The courts were accordingly unwilling to return judgements that protected individual rights in the context of counterterrorism. The rhetoric was so compelling, not a single judge was willing to challenge it. A semblance of independence was cautiously retained due to several progressive judgements, particularly by Mark Fernando J. These judgements proved to be critical points of departure during the period. Yet they did not challenge the counterterrorism rhetoric that had governed the rights dispensation of the time. Members of the Tamil community accused of being ‘terrorists’ seldom benefitted from these progressive judgments. Even when Tamil litigants did receive some measure of relief, it was invariably after they were deemed innocuous and released from state custody.

The Rajapaksa regime succeeded in annihilating the LTTE, which almost irreversibly validated the public security doctrine. The triumph of the regime over ‘terrorism’ appeared to have settled—perhaps permanently—the tension between public security and individual rights in favour of public security. The courts, once again responding to political realities of the day, were simply not prepared to challenge this resolution of the tension. The judiciary instead meekly accepted the PTA Regulations, which perpetuated a de facto state of emergency. It ultimately accepted a space where it could never challenge the executive’s supreme authority over matters of public security.

*The text above is from the Conclusion section of the book

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Latest comments

  • 1
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    Minorities are minors so they can’t make decisions!

  • 6
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    All of this boils down to the fact that ever since 4February1948 our legal system has been on a downward spiral from the rule of law to the law of the jungle. This latter state was finally reached with the appointment of Mohan as the head primate.

    • 3
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      CONGRATULATION! Bravo Kishali et al. for this path breaking study that reveals the true state of the one of the key pillars of democracy in Sri Lanka. Keep up your excellent work.

      There have been very few officials in the judiciary who were educated enough to challenge the national security state doctrine which today is a doctrine of IMPUNITY and IMMUNITY for the Rajapaksa family and cronies to loot, murder and rape ALL Sri Lankans – whether majority or minority. Only, it is worse for the minorities who have nowhere to go for justice and redress…
      Let us be clear about this – the national security State TODAY is one that only protects the Jarapassa family and corrupt and criminal politicians and the military and police.
      Ironically, the National security state protects politicians and the military who are today the biggest and most terrible criminals and law breakers in the country. The legal system in other words works AGAINST ITSELF and is very warped for the Sinhalaya Modayas are too stupid and racist to see the truth and keep voting for the corrupt and criminal Jarapassa brothers.. and their cabinet of clowns in the Diyawenna Parliament of uneducated and corrupt morons…

  • 0
    1

    Dr. Jayantha De Almeida Gunaratne does not have the right any more to write or speak on these issues. He has accepted the post of Judge of the Supreme Court of Fiji along with Suhada Gamlath. He now works for a military dictator. Fiji has been suspended from the Commonwealth. He has joined a group of Sri Lankan judges who unashamedly work for two dictators, one in Sri Lanka and one on Fiji. I was suprided to read in the newspapers yesterday that Dr. Gunaratne has joined the Fiji Supreme Court.

    • 2
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      I was surprised too. Hope the other two esteemed lawyers do not taint themselves by associating with Justice Gunaratne, judge of Fiji dictator’s Supreme Court. Oh! what money can do!

    • 1
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      Oh take a dive into the Beira, sisilarat or whoever you are..who the hell cares what happens in Fiji? Do not try and make the government happy. So you think, the Commonwealth is important, eh? Well, Sri Lanka is STILL in the Commonwealth! So what do you now say about the Commonwealth, eh? Whoever remains or leaves or is suspended from the Commonwealth is no longer important. It is all politics. The Commonwealth is a joke.

      Also these kinds of comments must make the government very happy as it divides those opposed to it. And these comments are also not very logical. Our MR is bad. True. But there are honourable judges who have taken the oath before him and are doing their best in the courts. So does the fact that they were appointed by him make them all bad??

      And your pal,ravindran also must consider the extension of his comment. So what about those lawyers who called de facto CJ Mohan Peiris a rogue and worse things, went against the appointment and paraded on the streets but still continue to appear before him, bow their heads and say ‘My Lord’ all for filthy money?

      Our effort should be united to tear down MR, not to tear down each other! We are the happiest when tearing down each other. Must be the SL way.

      • 0
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        For your info, Dr Jayantha also opposed the impeachment but appeared before the defacto CJ. I agree that we must not divide forces that are opposed to MR. But sisilarat’s point with which I agree (if I read him right) has nothing to with MR. I am surprised that a person of the calibre of Dr. Jayantha has accepted a post of Supreme Court judge under a military dictator.

        • 0
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          ravindran, I am not talking of those who merely opposed the impeachment in principle but those who called Mohan Peiris all the names in a personal way and then appeared before him. Now see Upul Jayasuriya. he has made a statement in regard to the appointment of Rodrigo as the head of the Presidential legal division and said that action had been taken against Rodrigo by the ‘cream of Hulfsdorp’ Daily Mirror. So now does does the ‘cream’ of Hulfsdorp include the de facto CJ who heads the Council of Legal Education? More like sour mink rather than cream, I would say.

          Sisilarat’s comment had everything to do with MR as he had said that ‘He has joined a group of Sri Lankan judges who unashamedly work for two dictators, one in Sri Lanka and one on Fiji.’ Read that comment properly. That shows deliberate twisting of the facts.

          There are good judges in Fiji, better than Sri Lanka, some might say. I remember years ago, a judge called Priyantha Fernando who handed down a judgment in favour of a well known Fijian advocate Imrana Jalal, I think. I remember my daughter who is a lawyer talking of this. Judge Priyantha Fernando was not sent threats by the Fijian government.

          Anyway we may be surprised at things people may do all the time but what is important is to join hands in whatever way possible to bring this actual and cruel dictator in our country down not to tear each other out. And not to be worried about Fiji. Lets worry about here.

          See struggles in other countries, how they join hands without trying to push people out by labeling and condemning. Sri Lankans should learn from these examples.

          • 0
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            ainsley, I agree with what you have said. sisilarat sounds personally malicious as can be seen in that interesting slip-up that he has made in referring to MR and SL judges even though what he has tried to say is only in reference to fiji. Probably someone with a professional axe to grind.

            Really, MR must be standing back and grinning when these jokers try to score cheap points. All to his advantage. Ah well, that is the fate of sri lanka. Maybe a TRC is needed, not for survivors of war only but for everyone in sl. Many of these lawyers who paraded on tv for that poor woman Shirani B. now quote huge fees when appearing before de facto CJ Mohan Peiris. Others are in Colombo 7 NGO offices. What a joke!

  • 4
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    At a recent book launch where Prof G L Peiris was giving the key note address he stated that minority rights are recognised and defended by this government. Faisz Mustafa in reply quite rightly pointed out that the attacks on churches and mosques have not been condemned by the government nor any other political party. Are we so engrossed with the majority???

    • 1
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      TNA condemned it in parliament.

  • 0
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    All pillars of the state have failed Sri Lankans. What was detrimental to the Tamil minority initially, was not anticipated by most to become detrimental to other minorities and the majority itself, with the passage of time. Today, all of us, as citizens have become victims of the our system of governance . The lesson to be learned is that what is bad for a part will be bad for the whole, ultimately. Once rot sets in a part, the whole will not be spared. What is unfortunate is that we are yet seeing the rot in the parts , without realising that the whole has also become rotten with time.

    There is no remedy left now, other than to overthrow the whole system of governance in this country, while retrieving the core principles that were once the founding principles of our state.

    Dr. Rajasingham Narendran

  • 0
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    Dr Narendran. I recognise your pain. You, gamini, don stanley and spring koha have made constructive comments on what is an important report. SL judges should be put under a microscope. The abuse meted out to Tamil PTA detainees by Peiris has been disgraceful. Now he has been given a right royal snub by the man whom he sacked – Rodrigo – being appointed to head MR’s legal division. What a funny state of affairs!
    Chandra

  • 1
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    I feel very sorry for those who commented with malice on Dr. Almeida Guneratne’s capabilities and capacities. one thing those who commented to defame his repute must know that, when Dr. Alemida guneratne started talking on behalf of people whose rights are being affected, those commented, may not have even been in their nappies. those so called cardboard heroes shamelessly keep on commenting whether dr. Almeida has a right to pen his voice for the affected people or not, must know that Dr. Almeida had been and always will be a people’s man who would rise fearlessly for them. even the fact that he went to Fiji to serve as a supreme court judge may very well be for serving its people and those who know Dr. Almeida would very well know,that, he is a man that, money could not even think of buying. shame on you all who tried to cause disgrace to the gigantic name of dr. Almeida. one thing is sure, the truth will rise eventually leaving all those baseless comments nothing but nothing.

  • 0
    0

    Where can we buy this please?

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