By Mass L. Usuf –

Mass Usuf

Sri Lanka is a nation moving towards turmoil. A phenomenon which has not yet fully manifested itself but the subterfuge is slowly unfolding. To the masses, it is increasingly becoming evident that the rhetorics of the politicians on patriotism and nationalism are mere empty words. This nation has politicians the majority of whom are a set of liars, fraudsters, opportunists and confidence tricksters. This is not only in the government but includes those in the so called joint opposition. The few honest and sincere politicians are not able to withstand the tsunami of the corrupt.

Sri Lanka too, as in any democratic state, has enshrined in the Constitution the three arms of governance viz. the Legislature, the Executive and the Judiciary.  Each to the best possible extent separated in the use of its powers. This doctrine of separation was blatantly diluted during the long rule of former President Mahinda Rajapaksa. An era which witnessed the gradual precipitation in the breakdown of these institutions. Of special relevance is the consequential blow paralysing one of the fundamental pillars of good governance, the Rule of Law. As a natural extension of this paralytic condition was the growth in corruption, nepotism, violence of all sorts, unprecedented sycophancy and the ambitious angst of the then President to transform himself to the Maharajanani.  How true is the statement, ‘power corrupts, and absolute power corrupts absolutely’?

Maha Raja

For those who have been at the corridors of power, the lust for power continues to intoxicate their minds. To achieve this all available tools of subtle insinuation, insidious misinformation, misinterpretation, fear mongering and outright condemnation are used appropriately. The Maha raja is a known strategist and has tons of patience. The Maha raja who during his rule deprived the citizens of their basic fundamental rights has now turned to be the saviour of the people. He is aware that until 2020 he cannot legally to do anything.  The wait up to 2020 is a long haul, transcending his patience and that of the cohorts surrounding him. Perhaps the path for him now is to simply rely on ‘people power’ and attempt a ‘by pass’ to regain power.  For this, of course, everything that is necessary to arouse the sentiments of the people has to be employed. Little wonder terms like ‘janatha theeranaya’, ‘janatha balaya’ meaning decision of the people, people’s power respectively and such other expressions have become part of the deceptive and tactical vocabulary.

Henahura

Maha raja’s 18^th amendment which usurped and interfered with the judiciary, government service, the police, the Attorney General’s Department etc. is public knowledge. What is less known to the public is the extent of damage such action has brought about to these institutions. Once, the former Chief Justice Sarath N. Silva, during an emotional speech criticised the Supreme Court opinion given on the constitutionality to contest for a third term as per a request by President Rajapaksa, while he described the judgement as one ‘lacking in transparency’ and a ‘corrupt point of view’. He went on to criticise the judges who gave the verdict and he stated that such individuals need not station themselves at Hulftsdorp but should instead remain in a small room within the premises of Temple Trees so they can freely manufacture verdicts that suit the whims and fancies of the President. (Colombo Telegraph 12 November 2014).

He also described President Mahinda Rajapaksa as ‘a harbinger of evil’ (Henahura) who has made a thundering blow against the law of Sri Lanka and added that this attack will surely boomerang.

I do not know what the former Chief Justice, himself a controversial figure, meant by ‘boomerang’. Sadly, what is experienced today is the integrity of the government service diminishing, deterioration of law enforcement, an inefficient justice system and the lackadaisical approach of the executive branch in conducting their affairs.  The impunity with which those close to the portals of powers that be go about doing their things are further proof of such ruination and damnation. The government changed in 2015 but these institutions remain impaired.

Corrupt Government

The people voted out the evildoers not to usher in another band of wrongdoers. Unfortunately, by default, it seems that is what has happened. The idea of a joint government is unique and must be commended as a novelty. However, if this political stunt is marred by the same corruption, nepotism and fraud of the predecessors what difference does that make. There is no need to list out the alleged crimes and criminal activities because they have been repeatedly spoken about in public. If the yahapalana government as alleged is protecting the corrupt of the previous regime, who will save this country from these unscrupulous elements? When will these alleged criminals face real justice? Who will clean the Augean stables?

While the handful of irresponsible, inefficient, uncouth, misfits play ball game with the country and its future, the masses are looking agape helplessly.  Who will come to their rescue?

Several in the legislature and the executive have proved to be either corrupt or incapable due to a myriad of reasons. Also, incapacitated due to political expediency rather than principles. Of the three arms of democracy the last one remains – the Judiciary. 

The Judiciary

This branch has been at the receiving end of its share of criticism by the politicians etc. However, all hopes are not lost as far as the Judiciary is concerned.  They can still assert their judicial authority and judicial independence without fear or favour. The concept of judicial independence is an integral part of the separation of powers in our constitutional framework. A strong, vibrant and independent judiciary is the backbone of any democratic nation. The judge must always perform his task impartially.  In order to be impartial, a judge must be independent; He must be free from personal influence that is from his own self and, most importantly, not to bow down to pressures from the Executive.  An independent judge is one who will courageously administer the law and dispense justice.

Judicial independence though not an absolute doctrine can still be harnessed considerably. The Constitution in Chapter III on Fundamental Rights has provided for some great ideals of individual liberty, freedom, protection and equality. The real value of these recitals can be experienced only if there is the Rule of Law. 

Minister of Justice

This is where the Minister of Justice, a lawyer himself, has a significant role to play. Has he done enough to strengthen the diminishing rule of law? To what extent has he demonstrably subscribed to the notion of independence of the judiciary? How pro-active has he been in putting the judicial house in order? What positive and progressive steps has he taken to minimise the law’s delay?  What substantive reforms have been effected embracing the Police and the Prosecution (Attorney General’s Department), the Department of the Government Analyst and the Examiner of Questioned Documents and other public institutions that are involved to speed up the process of justice? The talk of the town is that he is a miserable failure as far as his Ministry is concerned. This country had high hopes in him that he will be the indomitable fortress of the country’s justice system. 

Reports indicate that it takes an average of 10 years to conclude a criminal trial in Sri Lanka. Land cases too take a very long period. The Minister of Justice knows very well that justice delayed is justice denied. He is also aware that there are many others who wish to frustrate the process of justice. What is happening Mr. Minister? Are you sincerely looking for solutions or as some allege, “are you part of the problem”?

Judicial Activism

Lord Denning once remonstrated, “judges cannot afford to be timorous souls. They cannot remain impotent, incapable and sterile in the face of injustice”. They need to take the law enforcement authorities and the Attorney General’s department to task for the inordinate delays.  The judges owe a duty not only to the position they hold but, also, as citizens of this country. It is both a moral and legal responsibility of these dignified personalities to save the country from falling into the abyss of anarchy, to arrest the worsening rule of law situation, unchecked delays and corruption, abuse of power and all illegal activities. It is time to rise up to the call of the nation. How will they do it?  Be inspired by Lord Denning. His Lordship once remarked: “If we never do anything which has not been done before, we shall never get anywhere. The law will stand still while the rest of the world goes on, and that will be bad for both”.

The Indian Supreme Court has departed from the traditional method of applying the law to the realm of judicial activism. For example, the right to life and personal liberty in the constitution has been expanded to encompass inter alia, the right to a speedy trial. “In the last few years the Supreme Court has, through intense judicial activism, become a symbol of hope for the people of India. It has augmented its moral authority and acquired a new credibility with the people through judicial activism and judicial creativity”. (Indian Chief Justice Natwarlal Bhagwati speaking on judicial activism).

As for Sri Lanka, the public is wondering if those who pledged to bring back law and order are themselves trying to evade or massage law and order by any means. 

The country still has hopes in the Judiciary. Hail, the Rule of Law. Hail, judicial activism.