23 October, 2021

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The Promise & The Pathos Of The Law In Sri Lanka

By Kishali Pinto-Jayawardena

Kishali Pinto-Jayawardena

Kishali Pinto-Jayawardena

On the 9th of January 2015, the people of Sri Lanka astounded themselves and many others in the world. An authoritarian ruling family cabal which had ruthlessly stripped the country’s democratic institutions and systems of their basic integrity and legitimacy, subordinated the highest Court in the land and unforgivably repressed and alienated Sri Lanka’s minorities, lost political power. Former president Mahinda Rajapaksa and the members of his family were forced to hurriedly pack up their belongings and leave the seat of governmental power.

To appreciate the enormity of what happened, the extent to which the legal, political and economic environment had degenerated by that time must be understood. This was no ordinary transfer of political power. By the time that the January Presidential elections came around, the former President and his brothers controlled substantial portions of the country’s budget, one was the Secretary of Defence and the other a powerful Minister; yet another Presidential sibling was the Speaker of the Parliament. The country’s judiciary, Office of the Attorney General, Department of Police and pivotal state institutions were literally at the beck and call of the former President and his family members.

Never quite free from corrupt manipulation at any point after the first few decades following independence, the state machinery descended into unbelievably corrupt chaos during the second decade of Rajapaksa rule (2005-2015). Prior to the January elections in 2015, vast amounts of state money were used for the Rajapaksa election campaign and the state media, which had been co-opted into the propaganda machine of the government in power for decades, went completely beyond the pale in supporting his candidature. The private media, civil society, trade unionists and academics opposing the former government had been under heavy attack for many years, some losing their lives in the process and others having to flee the country.

In the former war-theatre of the North and East, the Tamil minority remained a subordinate people, their lands being seized from them after the defeat of the Liberation Tigers of Tamil Eelam (LTTE) by government forces in 2009 and their survival ensured only if they acceded to each and every demand put forward by the military administration which effectively ran civil administration in those areas. The other minority, Sri Lanka’s Muslim community had also been increasingly terrorized in recent years with their mosques and business places being burnt and hate speech frequently being practiced against them by militant Buddhist monks who operated with state patronage.

So, in the midst of great oppression and overwhelming propaganda aimed at convincing Sri Lanka’s majority Sinhala Buddhist people that the former President was the savior of the nation, what occasioned this change? My view is that the defeat of the Rajapaksas was brought about by the forceful rejection by the majority, of mindless communalism, profound injustice and outright terror. For this defeat was occasioned by an unprecedented drop in the Sinhala majority votes for the former President, which, along with the predictable antagonistic minority vote, brought about a victory at the Presidential elections for the Rajapaksa challenger, a hitherto little known senior politician, current President Maithripala Sirisena emerging from the ranks of the former President’s party itself, who defected late last year to challenge his erstwhile leader.

A Long and Hard Struggle

The one major criticism that I have had to encounter has been the question ‘why are you talking of Sri Lanka’s failures abroad? Talk of the failures within the country but don’t do this outside as you are ‘letting down the side.’ This criticism, I think, stems from a fundamental misconception as to the rights and obligations of citizens in the modern world. Constructively criticizing one’s own country, either domestically or in fora outside the country is part of a modern citizen’s duty. It is aimed at redressing these failures not at exposing the country to ‘outside criticism’ as is commonly termed.

Justice K. Sripavan - MaithripalaAnd while the role of international human rights law in Sri Lanka has had its positives as I will refer to in this essay, my point is that it is must be left to the people of the country to work out their destiny. International pressure and interventions, even in the form of war tribunals conceived and pushed through by Western countries who are themselves accused of as great or greater atrocities elsewhere in the world, cannot be thought of a end solution. On occasion indeed, I have been fierce in my rebuttal of a view sometimes expressed that ‘top-down’ solutions imposed by outside can redress a country’s internal wrestling with the Rule of Law. International support must be in tandem with local democracy movements.

That said, it must be clearly understood that Sri Lanka’s problems with the Rule of Law does not originate nor end with the Rajapaksa Presidency. Our democratic dilemmas are systemic. For years, debates on the Rule of Law in Sri Lanka had been plagued by an extraordinary dilemma – what do rights advocates do when the Constitution itself is a manifest instrument of injustice and inequality? There is, of course, a particular background to this discussion which I will summarise

At independence in 1948, Sri Lanka had an enviable international reputation as a country with strong democratic traditions, a high level of literacy and its own welfare state,

providing free education and food security for all its citizens. But just two decades into the post-independence period, all this changed. In 1972, the first Constitution of the Republic removed the notion of an independent civil service and paved the way for the politicization of the bureaucracy. The independence of the judiciary was weakened by several provisions that tilted the balance of power firmly towards the legislature. Safeguards for the minorities provided under Sri Lanka’s Independence Constitution were abolished under the 1972 Constitution. In a book titled Sri Lanka’s Judicial Mind and the Protection of Minorities that I co-wrote in 2014, the role and responsibility of the judiciary in declining to protect minority rights since the enactment of this Constitution was thoroughly examined, indicating the extent to which Sri Lanka’s judicial elite played a part in this problematic process. The 1978 Constitution continued this degenerative process as I will illustrate later.

Strengthening of anti-democratic forces

The mid 1980s to early 1990’s was undeniably a difficult period for Sri Lanka. Counter-state repression was enormous both in the south, against the Janatha Vimukthi Peramuna (People’s Liberation Front, the JVP), and in the North and East against the LTTE, as exemplified by the use of extraordinary laws such as the Public Security Ordinance and the Prevention of Terrorism Act. While the 1983 killings of Tamils marked one of the most horrendous incidents in post independence history, the upsurge in violence against both Sinhalese and Tamils by government forces by the late 1980’s resulted in staggering numbers of deaths and disappearances. At that time, Sri Lanka registered the second-highest number of cases of involuntary disappearances in the world, next only to Iraq.

In the mid-1980s, I had just entered Colombo’s Faculty of Law, and was juggling legal tomes with a somewhat bewitched involvement in political and legal journalism. Both offered a unique vantage point from which to observe, as well as to be intensely involved in the spirited defences being mounted against state repression by the media, civil society, professional workers and universities. Those were dangerous but heady times – one felt supremely justified in struggling for a better order and a democratic way of life.

Collective activism in 1994, by activists, the media, academics and professionals swept away a distrusted administration of the United National Party (UNP). On an overwhelming mandate for peace, it instead installed a fresh-faced Chandrika Kumaratunga, who led Sri Lanka’s other main political party, the Sri Lanka Freedom Party (SLFP). But far from those idealised hopes, the political story thereafter reflected a common or garden-variety leadership, autocratic and unenlightened. 11 years later, when she reluctantly gave way to a presidential successor from her own party, the democratic fruits of her period in power were consummately bitter.

The first years of Kumaranaga’s tenure were politically easy, basking as she did in the unprecedented people’s vote that put her in power. Yet as the war with the LTTE resumed after a brief cessation of hostilities, and the media – once her unequivocal supporter – became increasingly critical of her handling of state affairs, Kumaratunga’s incipient defensiveness came to the forefront. Particularly disappointing was her use of presidential commissions, then investigating the large-scale disappearances of the previous decade as well as other political assassinations, to discredit her political opposition rather than to afford closure and healing for the thousands affected. The country thereby lost a singular chance to emulate the South African post-apartheid experience, leading to a new and genuinely inclusive constitutional contract. Later, as the LTTE increased the ferocity of its attacks, Kumaratunga’s defensiveness translated into a stubborn inability to brook opposition from any quarter. This was indeed the point from which she launched her attack on one of Sri Lanka’s most cherished democratic institutions – the judiciary – with devastating consequences for the protection of the rule of law.

Meanwhile, the impetus for peace gradually dwindled to a perilous ceasefire agreement, brokered not by her administration but rather by the opposition UNP during the short period when they co-existed in government. The agreement was underpinned by Norwegian ‘facilitators’, who, by 2005, continued in their role more as a result of international pressure than through a solid bulwark of public support. The ceasefire agreement itself prevented the breakout of active hostilities. But a shadow war continued with inevitable casualties on both sides while the protection of human rights of ordinary Tamils and Muslims, terrorised by LTTE totalitarianism, was relegated to the sidelines. The crushing of the great expectations on which Kumaratunga came into office was comprehensive, catapulting the Sri Lankan people into a new and dangerously fragmented political reality.

To be fair, Sri Lanka’s opposition parties – particularly the UNP, in its fundamental inability to provide an honest counterpoint to its traditional political rival, the SLFP – certainly played a major role in the defeating of these hopes. Wiser leadership by the Kumaratunga presidency, however, might have prevented the continuing deterioration of the countries’ democratic processes. Unfortunately, this was not to be.

The Role of Civil Society and the Independence of the Judiciary

This period was particularly problematic in regard to the deterioration and devaluing of the country’s judiciary. From the late 1970’s to the early 1990s, strong interventions had been evidenced by Sri Lanka’s civil society in particular against executive or legislative attempts to undermine the judiciary. There was, of course, a particular historical context to such attempts. Sri Lanka’s Independence Constitution in 1947 embodied a strict separation of the judicature from the executive and the legislature. The Chief Justice and the Judges of the Supreme Court were appointed by the Governor General, held office during good behavior and could not be removed from office except by the Governor General upon an address of the Senate and the House of Representatives.

A Judicial Service Commission (JSC) consisting of the Chief Justice, a judge of the Supreme Court and any other person who shall be or shall have been a Judge of the Supreme Court was also established. The JSC was vested with the authority of appointing, transferring, dismissing and exercising disciplinary control of all judicial officers, except a judge of the Supreme Court and a Commissioner of Assize. In this particular legal order, the independence of the judiciary was safeguarded to some extent: the appointment of judges of the apex court was entrusted to the Governor General, who was a representative of the Queen and not a political creature, and the JSC was a body independent of either the legislature or the executive.

However, ten years later, this separation of powers came under direct threat by legislation that attempted to give the Minister of Justice authority in the appointment of judicial officers. The Supreme Court responded by declaring the legislation invalid. Executive and legislative efforts to venture beyond its legitimate authority were not to stop at that. In quick succession, the Supreme Court struck down further legislation perceived as affecting its independence.

Not unnaturally, these demonstrations of judicial strength were little to the liking of the holders of political power at that time. Acting in a spirit of what they saw as righteous anger (the tragic consequences of which were acknowledged only years later), the framers of the new Constitution deliberately set out to marginalise the role of the judiciary.

The first Republican Constitution categorically declared in Article 3 that the judicial power of the people through courts and other institutions created by law may be exercised directly by the National State Assembly. The right of appeal to the Privy Council was abolished and the judiciary was deliberately and systematically stripped of its power to the extent that the judges of that time were even deprived of their traditional trappings of office such as their robes and wigs. Replacing the Governor General who was under the Independence Constitution required to exercise his powers, authority and functions as far as possible in accordance with the constitutional conventions in the United Kingdom, the first Republican Constitution validated political interference in the judiciary by handing the power of appointment of judges of the higher courts to a non elective President acting on the advice of the Prime Minister.

In place of the earlier Judicial Service Commission, a twin Judicial Services Advisory Board (JSAB) and Judicial Services Disciplinary Board (JSDB) was established. The JSAB had no right to appoint judges of the minor courts but only to recommend their appointment to the Cabinet of Ministers, while the JSDB had the power to exercise disciplinary control and dismissal of judges of the minor courts and state officers exercising judicial power. Here too, political control over the JSAB was ensured by requiring that two of the five member commission of the JSAB be officers other than judicial officers; the actual appointees turned out to be, in fact, the Secretary to the Ministry of Justice and the Attorney General. Similarly, while the composition of the JSDB was not to be faulted, their decisions could be set aside by an appeal to the Cabinet, thus rendering their powers largely nugatory.

The supreme law of the land made legal a number of other undemocratic features including the passing of emergency without a debate, abolishing judicial review and establishing a Constitutional Court which had the limited power to scrutinize bills, and this, too, in 24 hours when the bill was certified as being urgent in the national interest. Fundamental Rights were included in the Constitution but made impotent by open ended restrictions and no specific enforcement procedure.

Interpreting the democratically subversive theory of the Constitution into practice, it was not long before open conflict became apparent. Parliament and the newly set up Constitutional Court clashed head on at the first sitting of the Court over the Press Council Bill when the legislature decreed that the court had no discretion to give a liberal interpretation to a specified time limit within which to determine the constitutionality of the Bill. The entire court resigned and the Government was compelled to appoint a fresh court. From this point onwards, relations between the courts and the then Justice Minister plummeted downhill. It was, in truth, the lamentable start of the settling in of the Sri Lankan judiciary into what could, with just reason, be referred to as a state of seige.

The second 1978 Republican Constitution of 1978 (the prevalent law) promised an (illusionary) respite for a beleagured Sri Lankan judiciary. This constitutional document did indeed contain many features that were a definite improvement on what had prevailed. The role of the Supreme Court as the “highest and final superior court” was constitutionally protected and the Court was given special jurisdiction in respect of election petitions, appeals, constitutional matters, fundamental rights (now made justiciable) and breach of the privileges of Parliament. The appointment of judges of the superior courts was by an elected President “by warrant under his hand”.

As in the two previous Constitutions, the security and tenure of the judges were guaranteed and judges of the superior courts held office during good behaviour and could be removed only after address of Parliament. Additionally, it was specified that the address for removal should be on grounds of proved misbehaviour or incapacity and that the full particulars of such allegations should be set out. The JSAB and the JSDB, which had proved to be notoriously incapable of preventing political interference in the minor judiciary, were replaced by a Judicial Service Commission (JSC) vested with the same powers. The JSC was to consist of the Chief Justice and two other judges of the Supreme Court, named by the President, who could be removed only for cause assigned.

Old habits, however, died hard. A misleadingly innocuous clause in the Constitution that specified that all judges of the appellate courts shall, on the commencement of the new Constitution, cease to hold office, was used by the executive to radically “reconstitute” the higher courts. Seven out of the nineteen judges holding office were not re-appointed, thus reducing their guaranteed tenure. Before long, it became evident that political usurpation of the authority of the judiciary could not be contained by the new constitutional order. Rather, it increased in ferocity until it became a moot point as to which was worse: a constitution which legitimised an inferior judiciary or a constitution which was institutionally better, but under which judges were threatened by the most appalling executive and legislative excesses.

Barely three months after promulgation of the new Constitution, the authority of the Court of Appeal was nullified by a legislative response that amended the new Constitution in a manner which denied the Court of Appeal jurisdiction in certain specified cases. The Court had held with the former Prime Minister that a Special Presidential Commission of Inquiry appointed to look into her actions during the preceding years could not be vested with retrospective powers. Subsequent events were even more devastating. Police officers found responsible for the violation of fundamental rights were not only promoted, but their damages and costs were paid by the Government. Procedural difficulties in judicial officers taking the oath of allegiance under the Sixth Amendment resulted in the police locking and barring the Supreme Court and the Court of Appeal and refusing entry to judges who reported for work. Following unpopular decisions, judges’ houses were stoned and vulgar abuse was shouted at them by thugs. Other examples of executive coercion were many; notably the impeachment of then Chief Justice Neville Samarakoon when he engaged in criticism of the government.

The Role of the Court

Despite this pattern of executive coercion, Sri Lanka’s Supreme Court strove to establish itself as the rights arbiter for thousands of people from the mid-1980s onwards in particular. It was during this period that the court, in its boldest efforts ever, asserted the right to speedy trial of individuals detained under draconian national security and anti-terrorism legislation. This was during the height of the state’s counter-terrorist measures, in both the northeast and the south. Spurred on by civil-society monitors, vigilant in the protection of fundamental liberties, the halls of justice became, indeed, the final recourse for many. These judicial interventions were all the more creditable given that the Sri Lankan Constitution lacked the full-bodied provisions of the Indian Constitution, such as the explicit enshrining of the right to life and the granting of a broad basis on which public interest groups – not only those personally aggrieved – could come to court.

But ironically, as it were, it was during the Kumaratunga Presidency that the Sri Lankan judicial institution received a crippling blow. By all rights, the increasing boldness of the Court by the latter part of the 1990’s should have led to a flowering of rights-motivated jurisprudence and a democratic system of checks and balances as regards actions if the government and its officials. However, what transpired instead was a severe backlash by the government against what it saw as an unwarranted judicial interference in government affairs.

This reached its height in 1999 when the most qualified senior judge on the Supreme Court who should have been appointed Chief Justice was passed over due to Presidential ire at frequent judicial reprimands delivered against her administration. Instead, the Attorney General was appointed as the head of the judiciary notwithstanding the fact that two inquiries were being heard against that individual before the Supreme Court itself on allegations of professional misconduct. The decade that followed thereafter marked an unprecedented stream of allegations of political partisanship against the sitting Chief Justice which surpassed anything that Sri Lanka had seen pre- or post-Independence.

The speedy decline in the independence of the judicial institution was put best by the International Bar Association in one of its fact finding missions to Sri Lanka in 2001 when it declared that the judiciary was as much in danger due to the political ambitions of the Chief Justice as due to government coercion. The IBA concluded that “…the perception of a lack of independence of the judiciary was in danger of becoming widespread with extremely harmful effects on the rule of law in the country.”

Unfortunately however, civil society interventions in were markedly less evident. By the late 1990s, many of Sri Lanka’s primary civil rights voices had been co-opted to advisory roles within government bodies. Such advisory functions may not have been problematic if this had not been accompanied by a withdrawing from their previously strong interventionist roles. In personal discussions, I remember (then) UN Special Rapporteur Dato Param Coomaraswamy expressing his extreme perturbation at the absence of protest. This apathy on the part of civil society was so predominant that, when some members of the higher judiciary began to use ‘contempt of court’ actions to guard itself against public criticism, few murmurs were heard in the plush conference rooms of Colombo’s five star hotels which regularly hosted discussions ranging from the independence of the judiciary to poverty alleviation.

Where the Bar was concerned, this silence was due to the politicization of the legal community as a whole. Underlying factors hinging on personality likes and dislikes and, (as I learnt in amazed if not rather naïve retrospect), even religious factors concerning the process of appointment to the office of the Chief Justice also played a major part.

Given the dismal state that Sri Lanka’s legal profession had collectively deteriorated to by the late 1990’s, this withdrawal was not surprising. However, it was inaction on the most part, of the academia, activists and the media that set the final seal on the degeneration of the country’s judiciary. In another era, activism on their part would have been an ideal launching pad from which an apolitical campaign might have been mounted against government interference with the judiciary. But this was not to be.

So the stage was set for the Rajapaksa Presidency to wreak its havoc on the democratic process, further destroying whatever remaining institutional strength. Vibrant voices in civil society had submitted themselves to dreary resignation which traced itself to decades of conflict and the abandonment of hope that the system would correct itself to an appreciable, democratic functionality. In one last democratic gasp in 2001, the 17th Amendment to Sri Lanka’s Constitution prescribed independent supervision over important appointments in public service, as well as creating key independent commissions on the police, public service, judiciary and elections process. It was first made ineffective and then dispensed with altogether under the iron hand of former President Rajapaksa. In 2013, a sitting Chief Justice was arbitrarily thrown out under this Presidency when slight resistance was shown to executive power. At that time, the lawyers came onto the streets indicating that, at least at that stage, the very real threat to the very survival of the legal profession and the law had been recognised. In 2015, at least some of these injustices were rectified after a new government came into power.

Global International Norms as Contributory to Change in Sri Lanka

It is important to emphasize the value of law in allowing citizens, however marginalized they may be, to claim rights. The fundamental power implicit in this claim should not be underestimated. Sri Lanka illustrates this point very clearly. My work as an advocate and as a columnist has always been firmly anchored to the law. Even in the most difficult of times, this has been the guiding principle. And I have been fortunate in having practiced, (prior to the great decline of the Sri Lankan judiciary), before some of our greatest judges in the mid-1990’s who looked at international standards as a way of enhancing domestic rights of Sri Lankans, not as something to be scorned and pushed aside.

These were judges who posited themselves with cool certainty within Sri Lanka’s illiberal constitutional and legal parameters (as indeed they were compelled to do by virtue of their judicial function) but pushed those boundaries to the optimum possible, angering Presidents and governments in the process. This was not judicial adventurism that we saw increasingly after the year 2000 when Chief Justices acted on political motives either in going against the executive or in bending tamely to its will. Instead, the jurisprudence upholding rights that the country witnessed during the period, (1996-1999) occupied itself with the legal protection of rights, skillfully using precedent and the law in a reasoned and well sustained manner.

So in what way has global human rights norms helped us domestically? Our basic concept behind the theory of change has been formulated within the framework of Article 2 of the International Covenant on Civil and Political Rights (ICCPR). Article 2 obligates the state parties to ensure an effective remedy for violations of human rights. For this purpose, it obligates the governments to take legislative, judicial and administrative measures to ensure an effective remedy. Most commentators on Article 2 concentrate on legislative changes, such as, for example, the criminalization of acts which amount to improper use of force and violence – the criminalization of torture, forced disappearances, sexual abuse, and the like.

However, what is often ignored is the obligation of the state to take judicial and administrative measures to ensure an effective remedy. A holistic view of change from the law and order approach to the rule of law approach for the elimination of improper use of force and violence requires legislative, judicial and administrative measures. In short, the legislation must be in terms of the normative framework of the rule of law. The judicial framework should also be within such a normative framework, and the government should also ensure that administrative measures, such as budgetary provisions that enable the proper functioning of the judicial process through ensuring the necessary resources, both by way of personnel and other technical resources, are also within such a framework. Issues such as the training of the security officers and their internal discipline could be satisfactorily addressed only within a legal system which is constructed on the basis of such a normative framework.

Sri Lanka acceded to the ICCPR First Optional Protocol (hereafter the Protocol) on 3 October 1997. From the year 2000s, the invocation of the right to lodge individual communications to the UN Human Rights Committee became frequent. This was primarily due to the political subversion of Sri Lanka’s Supreme Court from 1999 onwards and the general conviction that justice was not being rendered by the domestic courts. Many persons therefore appealed to the Committee. The fact that all the Covenant rights had not been guaranteed in Sri Lanka’s Constitution as referred to earlier, made resort to the individual communications remedy particularly interesting.

By late 2008, the UN Human Rights Committee had declared violations of ICCPR rights in eleven Communications of considerable importance. In some cases, the rights recognised as violated were also rights incorporated in Sri Lanka’s Constitution, such as ICCPR, Article 19 the (right to freedom of expression and ICCPR Article 7, the right to freedom from torture. In other instances, the Committee affirmed a number of rights that were not explicitly secured in the domestic constitutional structure. These included an expanded right to liberty and security, the right to be tried without undue delay and the principle that no one shall be compelled to testify against himself or confess guilt. The Government of Sri Lanka, before and after the one decade of Rajapaksa rule, declined to give effect to these recommendations.

But there was substantial pressure and public notice of these Communications built up through strategic resort to Sri Lanka’s Supreme Court itself which had often used principles of comparative international human rights jurisprudence in expanding domestic constitutional rights. The Sri Lankan legal system is traditionally a dualist legal system. Consequently, an Act of Parliament is required to domestically implement international instruments which the State ratifies/accedes to. Prior to 2006, though certain statutes such as CAT had been enacted to give specific effect to international treaties to which the State commits itself, there had been no dispute regarding the State’s obligation to follow these international standards. Indeed, Article 27(15) of Sri Lanka’s Constitution specifically requires the State to “endeavour to foster respect for international law and treaty obligations in dealings among nations.”

Sri Lanka’s Supreme Court had earlier engaged in the extensive citation of international standards of rights protection thus enhancing existing constitutional rights and resulting in a complex body of jurisprudence. Such was the positive nature of this importation of global human rights standards into domestic law that, when the Sri Lankan Supreme Court became politically driven from the early part of 2000, one of its first actions was to declare not only that rights contained in the ICCPR were not part of Sri Lankan law but also that the very act by the President of accession to the First Optional Protocol to the ICCPR was unconstitutional in the 2006 Divisional Bench of the Supreme Court in the Singarasa case.

Consequent to the Sinharasa decision and in response to pressure by the international community to ensure that ICCPR rights are respected and adhered to in Sri Lanka, the Government passed what is popularly referred to as the ‘ICCPR law’ in Parliament in 2007 but which did not conform to protecting the range of ICCPR rights in any manner whatsoever. Nonetheless, the powerful impact of this decade long strategic intervention using ICCPR rights to enhance domestic rights protections is without a doubt.

Conclusion

The magnitude of the problem that now confronts us even with the change in political leadership in 2015 cannot be ignored. For decades, Sinhalese, Tamils, Muslims have faced huge injustice. The emergent post-war security state in Sri Lanka has become most dangerous by reason of the very arbitrariness of the action that can be taken against citizens not necessarily by the higher levels of the government but perhaps by a soldier stationed in that area or by former militants who are now part of the government structure.

For decades, the judiciary had lost its authority and the office of the Executive President had overridden every other institution. We are moreover in a situation where ordinary law and order has deteriorated. So the challenges ahead should not be underestimated.

Still, January 2015 has shown Sri Lanka and the world that we can, at least, hope.

*Paper delivered by Sri Lankan lawyer, columnist and author Kishali Pinto-Jayawardena at the plenary sessions ‘Does Law’s Global Pretensions Offer Hope to the World?’ of the American Law and Society Association (LSA), 2015 held at Seattle, 28-30th May. The sessions were presided over by Prof. Malcolm Feely, Claire Sanders Clements Dean’s Professor of Law and a senior faculty member in the Jurisprudence and Social Policy Program, University of California, Berkeley. The two other speakers were Sally Merry, Professor of Anthropology, former director of the Law and Society Program, and an affiliated faculty member of the NYU School of Law and David Scheffer U.N Secretary-General’s Special Expert on United Nations Assistance to the Khmer Rouge Trials, The Mayer Brown/Robert A. Helman Professor of Law and Director for the Center on International Human Rights at Northwestern University School of Law, the United States.

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    Kishali Pinto-Jayawardena

    RE: The Promise & The Pathos Of The Law In Sri Lanka
    [Edited out]

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    A good history of ‘subversion’ of the laws of the land, by politicians for their own entrenchment in power.

    We have the “fastest” supreme court in the whole world – matters of constitutional nature had/have, by law, to be ‘judged and reported upon’ within 24 hours !

    “Military Courts” are like “any other courts” was the judgement on a petition by Sarath Fonseka.
    The military is now offering “death certificates” and cash, to relatives of those who ‘disappeared’ after arrest.

    Thus, we had/have two arms of judiciary.

    Even now, the successor to Gotabaya R, has the ‘judicial’ power to incarcerate any citizen for three months, in a secret prison, merely on verbal reports by police and army – under the PTA – renewable every three months without the ‘suspected terrorist’ being produced in a court of law.

    Democracy and Rule of Law, are not for subservient idiotic citizens.

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    Kishali

    You have very correctly chronicled and analysed the decline of the independence of the judiciary.

    It is an undeniable fact that the Sri Lankan judiciary has been politicized with favourites of the government of the day being appointed judges to the superior courts. The real decline started with Chandrika appointing Shirani Bandaranaike to the Supreme Court and later appointing the then Attorney General Sarath N Silva as the Chief Justice over other deserving Supreme Court judges. Sarath Silva contributed to the decline with many obvious decisions favouring the executive. The removal of Shirani Bandaranaike as Chief Justice, though done in accordance with the Constitutional provisions, left much to be desired.

    You have stated that ” In 2015, at least some of these injustices were rectified after a new government came into power.” You have not expanded on this statement perhaps for not exposing yourself for criticism.

    It is obvious that you are referring to the removal of Chief Justice Mohan Peiris and the installation in his place impeached former Chief Justice Shirani Bandaranaike by President Sirisena by a stroke of his pen. Are you condoning the unconstitutionaity of this removal and re-installation?

    This is where the whole value of your article and your impartiality comes under question.

    One may not agree with the reasons for the removal of former Chief Justice Shirani Bandaranaike and the appointment of Mohan Peris in her place, but the removal and the appointment were legal and cannot be questioned.

    What is wrong is wrong. President Sirisena has arbitarily removed a Chief Justice and installed an impeached Chief Justice in his place in contravention of clear provisions in the Constitution of Sri Lanka. He can be impeached for contravention of the Sri Lankan Constitution which under oath he promised to uphold and safeguard.

    By saying that in 2015 the injustices were rectified by the new government in power you have defeated your own argument against the intervention of the executive in the affairs of the judiciary.

    Very strangely you have also not touched on the various arrests and inquiries instituted by the FCID which acts on the directive of the Prime Minister. Do you think this is a healthy development for rule of law?

    The only good thing that has happened this year in the Sri Lankan judiciary is the appointment of a senior sitting Supreme Court judge as the Chief Justice. It is for the present set of superior court judges to uphold the independence of the judiciary and deliver judgments according to law without fear or favour.

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    “It is an undeniable fact that the Sri Lankan judiciary has been politicized with favourites of the government of the day being appointed judges to the superior courts”
    THIS IS NOTHING NEW. FINAL JUDGEMENT ON BUSH VS AL GORE ELECTION RESULT IN FAVOUR OF BUSH….. so what? We are Sri Lanka the size of a Mustard seed on the World map….. Who Cares ?? Paymasters of KPJ & BF.

    Later there was the Judgement by Justice Scarlia on water Boarding of detainees at Guamtanomobay.To obtain information water boarding IS PERMISSIBLE…………………

    NAGA…….. of Pamankada & not from Alimankada.
    “You have stated that ” In 2015, at least some of these injustices were rectified after a new government came into power.” You have not expanded on this statement perhaps for not exposing yourself for criticism.”……………..THATS ONBEHALF OF THE PAY MASTERS. Right to information not included by RW in the 19A hence KPJ opt to remain mute on this.

    How much $$$$ does she get. Oh ! Noooo … denied. Right to Information [RTI] not enacted. We are HR people.
    WHEN REPRESENTING PAY MASTERS IMPARTIALITY IS A PART 7 PARCEL OF HR.

    “What is wrong is wrong. President Sirisena has arbitarily removed a Chief Justice and installed an impeached Chief Justice in his place in contravention of clear provisions in the Constitution of Sri Lanka”……SIRISENA HAS ACTED DICTATORIALLY FROM DAY ONE.

    FCID is a Political Organ. The inquiries it handles only those passed onto them by a Cabinet sub-Committee led by Rakneel.
    Now the IGP can not carryout Police ord. Section 55 to pull up his surbodinates for improper turnout ect., The order has to come from the cabinet sub Committee.

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    I am just amused by the term “civil society” as much as by those who claim to be part of that (Ms. Pinto). Ones who proclaim to be part of this “Civil Society” seem to belong to the English Speaking, west leaning, good-old-days reminiscing, sliver of an urban populous who are pathetically clinging to the crumbs left by the imperial Britain in a by gone Ceylon, and they keep harping on the judicial system. Sri Lanka needs an ethical society, not a litigious society like US which has to depend upon a judicial system at every turn.

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    Naga
    You may have a certain validity on certain aspects of the article which you say and the author as had chronicled and analysed how the independence of the judiciary had declined in importance following the and second Republican Constitutions of 1972&1978 respectively,but somewhat ungenerous in your criticism, that she was not impartial in not addressing the aspect about the removal of Mohan Pieris who was CJ and the restitution of the impeached former CJ Shirani Bandaranayake to that post.
    How could she when she had pointed out to the various unjust and undemocratic features and illegalities which had been part and parcel of the both the said two aforesaid constitutions?
    If you say that Mohan Pieris had been dismissed in breach of the constitution as you contend, then can you suggest an alternative under which that could have been done by the cabinet and the President

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    Some people may keep arguing until the Doomsday that the manner in which MP was removed is illegal. But it was a master stroke that set right a grievous wrong.

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      I’m no lawyer, but I see it as illegal, and therefore deplorable. However, I condone it!

      It may be that what I have said above is full of contradictions; but when you have evil people like Mahinda Rajapaksa and Mohan Peiris, the good man (Maithripala Sirisena) had to overcome through foul means. That change couldn’t be delayed, but changing the UGC Chairman was not so urgent and due procedure (is that the term that is currently in vogue?) should have been followed.

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    I have been constantly reading your articles in the Sunday Times and am mostly impressed and inspired about the way you make every effort to educate the public and its clarity and simplicity of language. However, I regrettably note that certain journalist indulge in a more than cavalier attitude and over dramstise their articles to the point of dangerous and damaging presentation, and in certain cases the accuser, prosecutor and jailor. Today with the greater opportunities of achieving the heights of journalism through academic and professional qualification and discipline, there is certainly journalist who have and could reach admirable standards.
    Best wishes to you.

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    1) Impeachment of Chief Justice Shirani Bandaranayake was well within the Constitution and done accordingly.

    2) Appointment of Chief Justice Mohan Peiris is well within the Constitution.

    3) Appointment of Ranil Wickramasinghe as Prime Minister is after January 08th election is not constitutional.

    4) The incumbent President can be impeached as he has breached the Constitution on the above issues, which he promised to uphold whilst taking the oath.

    Pls note that I am not arguing the Right or Wrong of these actions.

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