By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

In a piquantly provoking postscript to months of tumultuous conflict between the government and Sri Lanka’s legal community over the clearly arbitrary impeachment of the 43rd Chief Justice of Sri Lanka, legal practitioners were advised by her successor during the opening of two rural circuit courts this week, to protect the trust that the public had reposed in them.

Cooperation between judges, lawyers and public

The public, on the other hand, was advised to respect the judiciary which ‘protects their rights.’ Interestingly however, judging by news reports (see Daily Mirror, March 6th and March 8th), similar injunctions appear not to have been issued against the government which, in the current politico-legal context, exercises all powers in respect of the unfortunate citizenry, North, South and East, made helpless at its command.

Further observing that Sri Lanka could teach human rights to its Western critics, given the country’s 2500 year old tradition of human rights protections’ the 44th Chief Justice categorized judges, lawyers and clients as the ‘three pillars of the judiciary’ and warned that if cooperation was not evidenced between all three, the system would collapse.

Meanwhile, individuals were invited to address a post card to the Chief Justice in regard to grievances though it was stated that fundamental rights protections should not be invoked for ‘trivial matters’ such as for example, when ‘a teacher twisted a boy’s ear’ or when boys quarrel.

It is the government that does not respect the judiciary

Notwithstanding the zeal displayed to protect peoples’ rights, it is necessary to examine crucial aspects of these public assurances. Certainly, it is the duty of not only the people but also the government to respect the judiciary. For example, it goes without saying that a government which is seen as mocking the judgments of the superior courts would be infringing this very salutary dictum.

But as we saw, the Rajapaksa government did exactly that some months ago when it proceeded with the impeachment of Sri Lanka’s 43rd Chief Justice despite two judgments of the superior courts advising the Parliament to refrain from proceeding with the impeachment process in the context of basic rights to a fair trial being denied to that Chief Justice.

To show respect to the judiciary is a duty predominantly of the executive which controls all power in Sri Lanka. And is it not high time that time that we stopped talking of our two thousand five hundred years of history and looked at what we are now. Are we a nation that respects the Rule of Law? Do our politicians respect the law, judgments and indeed judges? Was it respect that was displayed when a female Chief Justice was brought before a parliamentary select committee and grossly humiliated? These are questions that are paramount in the minds of Sri Lankan citizens.

Carefully developed judicial norms

And at a different level, as much as the public itself must refrain from being unduly litigious, the trivialization of justice must be guarded against. The question is therefore not whether a citizen has the right to go before the Supreme Court when a teacher twists the ear of a child but whether a constitutional right has been violated which would involve an assessment of the degree of the hurt caused as well as the severity of the physical and psychological impact of such actions.

In jurisprudence carefully developed by the Supreme Court throughout the nineties, we have seen the Court sensitively responding to a child being slapped by teachers or to situations where indeed no physical action is caused at all but grave psychological harm is willfully inflicted.

As has been said with exemplary gravitas, “the test which has been applied by our Courts is that whether the attack on the victim is physical or psychological, irrespective of [that] fact, a violation of Article 11 (torture) would depend on the circumstances of each case.’(Adhikary and another v. Amarasinghe and others [2003] 1 SLR, 270). Here a husband and wife, both lawyers, were arbitrarily stopped by ministerial security on a busy Colombo road, forced to get out of their vehicle and abused while the wife was carrying their 18-month-old child.

Similarly when boys quarrel, the issue is not the quarrel itself but the equal operation of the law which needs to be ensured. The collapse of the system occurs when public confidence in equality guarantees break down. Lawyers and litigants cannot be expected to repose trust and confidence in a system which is fundamentally farcical.

No hope for justice for ordinary citizens

The trivialization of law and justice in Sri Lanka is indeed what has resulted in intensified international scrutiny. This week, the United Nations Human Rights Council (UNHRC) was informed by government representatives that no formal complaints had been lodged with government agencies in respect of over 60 percent of appeals of disappearances forwarded independently by complainants to the United Nations Working Group (UNWG) on Enforced or Involuntary Disappearances, (see Colombo Gazette, March 6th 2013).

The implication therefore was that these complaints sent to the UNWG were not authentic. This is much in the same manner as when the incumbent Chief Justice in his previous avatar of legal advisor to the Cabinet stated before the UN Committee against Torture some years ago that disappeared web journalist Prageeth Ekneligoda was living in an overseas country. He then confessed later before a local judicial body that he had, in fact, no idea as to Ekneligoda’s whereabouts.

In a beautiful irony however, around about that same time that this claim was made in Geneva to the UNWG, law enforcement agencies prevented thousands of Northern based parents from travelling to Colombo to protest in respect of the unresolved disappearances of their children, in disregard of the constitutionally guaranteed right to movement.

So when the Government submits to the UNHRC that no significant proportion of the Northern disappearances had been formally reported to its agencies, it must recognize the fact that its actions leave absolutely no room for victims locally to complain and obtain redress. The question is simple; can an ordinary Tamil villager record the disappearance of his or her child at any police station in the north and east and expect to have it inquired into?

This Government must realise that its bluffing must stop, at least now.