23 May, 2019

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Will The Predictions About The Judiciary Come True?

By Basil Fernando

Basil Fernando

In an article entitled ‘Once judiciary is broken the Rajapaksas will use the court to destroy every remaining right or freedom’, Tisaranee Gunasekara makes the following prediction:

If the impeachment succeeds without wounding the Rajapaksas, that will become the judicial norm in Sri Lanka. Once the judiciary is turned invertebrate, it too will begin to act like the current Attorney General’s Department (which was taken over by the President in 2010), all the time. And instead of a magistrate issuing an arrest order against Duminda Silva, a magistrate will declare him innocent, on the orders of the Family. The Siblings and their kith and kin will decide who are guilty and who are innocent. The courts will be reduced to pronouncing Rajapaksa judgements and Rajapaksa sentences.

I think any thinking person should give serious consideration to this prediction. The time that is still left to prevent the prediction from coming true is indicated by the ‘if’ with which the prediction begins. The basic issue is as to whether soon it will be the executive who will decide the distinction between what is legal and what is illegal. That is whatever the executive (which has come to mean the three Rajapaksa brothers) wishes to do will be treated as legal. We are dealing with the Otto Adolf Eichmann view of the law. In his defence when he was tried by a court in Israel, Eichmann took up the position that in Germany whatever the Führer ordered was the law. Hannah Arendt, who watched and reported on this trial, termed this as the ‘banality of evil’.

That is why that ‘if’ is of such paramount importance. There is still a very short time for testing the prediction. Those few weeks are in the hands of Sri Lanka’s higher courts. They could either begin to cause the beginning of the reversal of submission to the dictates which more or less started with the four fifth majority of the UNP and continued with the borrowed two thirds majority of the present regime.

The legality of much of the 1978 Constitution could have been challenged by the Supreme Court at that time. However, this document called the Constitution of Sri Lanka which, in fact, in the history of constitutions is one that could without any hesitation be termed a joke, was allowed to be the paramount law of Sri Lanka only because the judiciary refused to exercise its role as the final arbiter of what is legal and illegal within the territory of Sri Lanka. In my book, Sri Lanka Impunity, Criminal Justice and Human Rights (2010) I devoted a whole chapter to illustrate that the distinction between legality and illegality has been lost in Sri Lanka.

After 31 years of the 1978 Constitution, it is not even possible to recognize what is law and what is not. When the executive president placed himself above the law, there began a process in which law gradually diminished to the point of no significance. This is unsurprising. The constitution itself destroyed constitutional law, by negating all checks and balances over the executive. When the paramount law declares itself irrelevant, its irrelevance penetrates all other laws. Thereafter, public institutions also lose their power and value……..When there is a loss of meaning in legality, terms such as ‘judge’, ‘lawyer’, ‘state counsel’ and ‘police officer’ are superficially used as if they mean what they did in the past; however, their inner meanings are substantially changed. Those who bear such titles no longer have similar authority, power and responsibility as their counterparts had before, when law still had meaning as an organizing principle.

It was that failure which led to the creation of continuous ambiguity about what is legal and illegal in Sri Lanka in recent decades. Even things like abductions and enforced disappearances are not clearly defined as illegal in Sri Lanka. If such acts were defined as illegal and the law was enforced, how many would now be in jail for committing that crime? This is just one example. How many other things which would have been considered illegal in a country that has the rule of law came to be considered as legal? The list would be a very long one.

The proverbial last minute

Still, all the space was not lost. At least an appearance of courts exercising some authority has still remained. The recent judgements on the Diviniguma Bill and the Criminal Justice Provisions Bill are just some examples which showed that still there is room for the judiciary to act as the arbiter of what is legal and illegal.

It is that which has been challenged now by way of the impeachment. The procedure under which the impeachment proceedings are to be held under the Standing Orders as they stand now is clearly unconstitutional. If through this unconstitutional process the Chief Justice is removed with that the power of the courts will be finally removed.

The test is as to whether the courts will exercise their authority against an illegal process for the removal of the Chief Justice and thereby retain in their hands the final power of deciding what is legal and illegal within the territory of Sri Lanka. The Indian Supreme Court has clearly kept their authority and, in the last few years, the Supreme Court of Pakistan also has reasserted its power to be the final arbiter of declaring what is legal and illegal within their national territories.

A court that does not exert the power it has will have no one to blame but itself. But there is still time before that ‘if’ may come true. So we are in that proverbial last minute.

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Latest comments

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    Yes BF. We are in that proverbial last minute.
    Justice cannot be expected from a Judiciary which is at its shamelessly, unethical lowest level. Serving Judges and Other Officials are under obligations to the Ruling Junta by accepting favors for their immediate family, siblings, etc., etc.
    This downward trend which began from 1978 is at its filthiest level and needs to be eliminated for a decent and law abiding Sri Lanka.

  • 0
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    This may be the last chance for the Judiciary and People to establish the rule of law at least on paper. Thereafter the Executive Presidiency which places one person above the law needs to be cut down to size. 18A has to be repealed. Only then will we be out of danger.

    The movement to gather the opinion of the people against the impeachment motion based on bad law, is gathering strength. It is left to be seen if our so called servants of the people relent and abandon this ill conceived attempt. It depends on how many of them are patriotic and honorable people who will place country over their personal interest.

    If they do not there could be further repercussions on the Govt locally and internationally. The fight for freedom will continue.

  • 0
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    The adoption of the 18th amendment as an ‘urgent bill’ by the judiciary,without even delaying it to enable full discussion to take place,was the first ‘nail’ in its own coffin.
    No other country has such a law giving autocratic/dictatorial powers to one man.
    But,strangely,this did not enter the minds of the judges.

    The CJ was given a ‘bait’ to swallow in the posts offered to her husband,but she did not realise it or ignored it.
    This has put the ‘lid’ on the coffin.

  • 0
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    What people seem to forget is that those with power, wealth and influence in any country soon lose touch with the interests of the common man.

    They become oblivious to the needs of the vast majority and simply play a game to keep winning.

    If Sri Lanka was at least a little like modern developed nations, ordinary people would not be so poor and helpless.

    The legality of issues and practices, comparisons with nazism and fascism are all subordinate to and primarily irrelevant to what people basically want from their country.

    This is not to discount the writer’s views but to express my view at a basic level.

    • 0
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      I can never agree with this Pethiyagoda! The banalty of his statements is always striking.

      What is meant by saying that ‘the legality of issues and practices, comparisons with nazism and fascism are all subordinate to and primarily irrelevant to what people basically want from their country’ ?

      What tosh!

      All that the people want at a basic level (that he talks of) is ensuring their rights by the law. That is exactly ensuring the legality of a process! What a patronizing attitude he has!

    • 0
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      Lasantha to quote you, ‘What people seem to forget is that those with power, wealth and influence in any country soon lose touch with the interests of the common man’. The issue here is these buggers at the top today were never the wealthy in this scoiety. They were neither the influential. They are the common humbugs, the Ordinery in society who rose to these levels thanks to some equally low bred who qualified as Professionals and Academics in this country, that is all.

  • 0
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    The muck that the SC created by passing 18A is the Damocles sword on SL’s democracy and its people now! For all the mess in SL the sole responsibility rests with the judiciary. From 1978 onwards they allowed the executive and legislature to grow out of proportionality and control and did nothing to counterbalance and curtail the excess. They gave every illegal chance to the government to destroy the opposition. The exact precarious situation the judiciary faces today is summed up in these historical lines:

    First they came for the Socialists, and I did not speak out–
    Because I was not a Socialist.

    Then they came for the Trade Unionists, and I did not speak out–
    Because I was not a Trade Unionist.

    Then they came for the Jews, and I did not speak out–
    Because I was not a Jew.

    Then they came for me–and there was no one left to speak for me.

    You destroyed yourself! And you destroyed us also! You stenching black-coated fools, you now have got the ideal despot in MARA whom you richly deserve! The bastards now occupying the judiciary are worthless, backboneless, shameless, meek, unprincipled and corrupt bunch of pathetic losers whom the history of the country would forever curse!

  • 0
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    It is quite true that the judiciary made a series of serious mistakes and contributed towards the creating the Frankenstein monster now about to devour it! Some people like Tony Fernando who came to the temple of justice seeking justice became a victim of a great injustice! Opposition MPs who crossed over to the government out of greed for numerous perks or to get immunity from the crimes they had committed,with a callous disregard for the faith the people placed in them, were allowed to retain their seats on the grounds of natural justice. And the judiciary did not care about the voters who were thus badly let down being denied their right to natural justice! Sarath Fonseka was subjected to a grave injustice! Tissanayakam was handed a 20 year jail term obviously to please the Executive! And finally the judiciary itself tightened the noose around its own neck by helping the smooth passage of the 18th Amendment with no questions asked. However, it is not too late to reverse the dangerous trend towards tyranny and anarchy! People here and the international community (except perhaps, Iran, North Korea, China and Russia) will stand by the the judiciary if it remains committed to administering justice fearlessly and impartially.

  • 0
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    This man is [Edited out]

    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy
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  • 0
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    We do not have to drove a particular conclusion based on the outcome of CJ’S impeachment process. We are already seeing Rajapaksa brothers replacing “Lord Buddha” for “Rajapaksa”. It is all about Rajapaksa. The country was under civil war for decades, most of the intellectuals have left the country. Sri Lanka has the highest percentage of brain drain in Asia. What else you can expect? Stop expecting too much or complaining, address the real situation and make intellectual leaders to steer the country into the right direction. The problem is, people are expecting too much from the leaders, but the leaders do not have the ability to deliver.

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