Reducing Of Sri Lanka’s Judiciary To A Mockery

by Kishali Pinto-Jayawardena

Nowhere in South Asia or indeed the entire world (excepting in failed states) would a responsible government hire thugs and party supporters to jeer and hoot at the Chief Justice of the country while she was leaving the superior courts complex to appear before a parliamentary select committee considering her impeachment.

Yet in Sri Lanka, this is what happened a few days ago. Nowhere in the world except in pariah nations would government members of parliament have been allowed to verbally insult the Chief Justice (Sri Lanka’s first woman Chief Justice at that) and her lawyers while they were participating in the deliberations of a select committee.

Yet this is what is reported to have happened on Thursday. Unable to bear the
continuous insults, the Chief Justice’s decision to walk out of the select committee  proceedings must be commended. Her courage in facing such an inquisition with head held high must be recognised.

Spewing of vile abuse against the head of judiciary

This is the culmination of a process that has brought Sri Lanka tremendous shame and lent credence to the claims of its detractors who refer to the country as a democratic graveyard. For the past several weeks, the Chief Justice was mercilessly hounded by government media propagandists as they spewed vile abuse on radio talk shows.

Blatantly contemptuous placards were carried by three wheeler drivers and lottery sellers right outside the seeming citadel of justice on Hulfsdorp Hill. State protection was provided for all these acts.

The  government  appeared  to  have  abandoned  all  norms  of  ordinary  decency befitting treatment of a human being let alone a judge, let alone the head of the judiciary.  It  appeared  to  have  turned  virtually  mad  in  its  desperate  struggle  to counter what has turned out to be a huge embarrassment for it.

No wonder that judges and lawyers throughout the country rallied to the support of the beleaguered Chief Justice, from provincial Bars as remote and diverse as Matara, Anuradhapura, Kandy, Jaffna and Vavuniya.

It was as if with a rush, the legal profession and the judicial service particularly in the outstations realized the great dangers that they were in (at last) and decided to push against the rock of executive humiliation of the judiciary with determination.

Walkout of the Select Committee a foregone conclusion

From the commencement of this fiasco, the issue was less the constitutionality of the process, (regardless of the vehement submissions made by lawyers appearing in cases challenging the impeachment), and more the fairness of the procedure followed and the clearly political timing of the impeachment itself.
Certainly the impeachment procedures as constitutionally stipulated violates basic norms of fair adjudication both domestically and on international standards.

They  deny  an  appellate  court  judge  even  the  most  rudimentary  rule  of  law safeguards   afforded   to   a   common   criminal.   But   in   previous   impeachments, convention and good sense dictated that an unwritten line of propriety was not crossed.   Through   its   intemperate   fury   at   being   challenged,   the   Rajapaksa government has however put paid to that past practice.

In no seemingly democratic country would a Chief Justice be subjected to an impeachment process distinguished by the inquiry committee’s inability to prescribe rules of procedure for its sittings (as pointed out by its members representing the Opposition in the public interest), its refusal to open the hearings for public scrutiny in the interests of transparency and accountability and its reported refusal to allow the Chief Justice’s lawyers to cross examine witnesses cited in the documents filed against her or to allow more time for her to answer allegations contained in a thousand page bundle of documents. Her walking out of the Select Committee proceedings this Thursday was therefore a foregone conclusion.

No need for a contempt law now

From 1999 to 2009, we had a Chief Justice whose conduct in and outside Court as documented opened up the judiciary to unrelentingly harsh public scrutiny. And as much as water rushes out when the walls of the dam is first breached, former Chief Justice Sarath Silva’s successors could do little but pay obeisance to the executive. It was when the judicial tide turned as a result of one humiliation being enforced a step too far that we saw the avalanche of executive anger being unleashed.

The Minister of Justice has pontificated to the media this week that the government plans to enact a contempt of court law soon. But let it be clearly said that there is now little purpose for such a law. The primary aim of a contempt law is to protect the administration of justice and the dignity of the courts while allowing for reasoned and crucial debate on the functioning of the justice system. Yet the administration of justice has already been rendered a snarling mockery and the dignity of courts has been remorselessly stripped away by this government and its media hounds. Day after day, the Chief Justice is attacked beyond all norms of propriety with a government giving the full seal of its approval. A contempt of court law has become quite redundant in this post Rajapaksa impeachment climate as much as the concepts of justice and fairness have also become redundant. This is undoubted.

Painful destruction of an independent judicial system

Those who willfully turned a blind eye to the internal politicization of the Supreme Court from the year 1999 onwards, those who were foolhardy or blinded by their own interests to applaud the handing of a blank cheque to this Presidency to do what it would with Sri Lanka after the ending of the conflict and those who looked away when the 18th Amendment was enacted, should now rue their folly and culpable ignorance.
In previous columns starting from almost a decade ago, predictions that this precise fate would befall the Sri Lankan judicial and legal system if there was no course correction  were  greeted  with  shrugs  and  smiles  from  members  of  the  legal profession. Some condemned these predictions as unnecessarily dire. Others were cynical enough to say that the system had survived despite past beatings.

But now as we see a Sri Lankan Chief Justice humiliated by common ruffians who hold the money which they were paid in one hand while they shout slogans with their other hand upraised, these complacent characters may well ruminate on their unfortunate  inability  to  recognise  the  warning  signals.  This  column  makes  no apology for repeatedly stressing the most coruscating lesson to emerge from this cataclysmic upheaval, particularly for those of us trained in the discipline of the law.

Even if new struggles are born as a result of the ongoing inquisition cum impeachment of the country’s Chief Justice, this is the comprehensive end of Sri Lanka’s independent judicial system as we have known it since 1948. It is a sad day indeed.

Courtesy: The Sunday Times

Legality of government actions rendered politically irrelevant

by Kishali Pinto Jayawardena

This week, a committed New Delhi based civil rights advocate and incidentally a good friend, observed in a dispassionate aside to an otherwise entirely different conversation in that country that ‘this situation that Sri Lankans are facing regarding the political impeachment of the Chief Justice is quite alien for us to grasp here, even in the abstract. How could checks and balances in your constitutional and legal system  break  down  to  that  terrible  extent?  Even  with  the  war  and  all  its consequences, how could the centre of judicial authority implode with such astounding force?’

A juggernaut government brushing aside protests

In retrospect, these questions assume great significance. Sri Lankan newspapers are now gloriously resplendent with opinions of all shades and colours on the propriety or otherwise of the impeachment process. The airing of these opinions and the filing of court cases calling Parliament to order for a politically targeted impeachment of the Chief Justice are certainly necessary. However, these frantic actions remain ostrich-like in the ignoring of certain truths. Foremost is that questioning the legality of  particular  actions  by  this  government  has  now  been  rendered  politically irrelevant. Perhaps at some point in the past, these interventions may have had some impact. But this logic does not hold true any longer, no matter how many learned discussions are conducted on the law and on the Constitution.

In particular, the laborious posturing by members of the Bar, many of whom appear to have only now belatedly realized the nature of the crisis that confronts us, are destined to be futile if that is all that we see. In the absence of popular collective protests reaching the streets which target the protection of the law and the judiciary at its core, this government will press on in its juggernaut way, brushing aside civil protests couched in the carefully deliberate language of the law, as much as one swats tiresome mosquitoes with a careless wave of the hand.

Three wheeler drivers marching before the Supreme Court

This immense contempt shown by those in power for the law was very well seen recently when news outlets reported a government orchestrated procession of three wheeler  drivers  chanting  slogans  in  support  of  the  impeachment  and  marching before the courts complex housing the Supreme Court and the Court of Appeal.
This stark fact, by itself, demonstrates the degeneration of the esteem in which the judiciary was once held. Such an event would have been unthinkable in the past, even taking into account the much quoted abusing of judges and the stoning of their houses during a different political era. There is a huge difference between the two situations. In the past, the intimidation of judges was carried out in the twilight of the underworld even though the threatening message that this conveyed to the judiciary was unmistakable. Now, political goons threatening judges parade in the harsh glare of daylight with total impunity and total contempt.

To what extent is a judicial officer from a magistrate to a Supreme Court judge including the Chief Justice able to now assert the authority of the law in his or her courthouse when such open contempt is shown for the judiciary with the backing of the government?

Not simply harping on the past

But as this column has repeatedly emphasized, this degeneration did not come with this  government  alone though it  may suit  many  to  think  so. Rather, those who expound long and laboriously now on the value of an independent judiciary for Sri Lanka including jurists as well as former Presidents, given that the latest to join this chorus is former President Chandrika Kumaratunga should, if they possess the necessary courage, examine their own actions or omissions in that regard.

As history has shown us, whether in the case of the genocide of the Jewish people by the Third Reich, the horrific apartheid policies of the old South Africa or indeed in many such countless examples around the world, a country cannot heal unless it honestly acknowledges its own past with genuine intent not to travel down that same path once again. It is not simply a question of harping on the past though again, it may suit some to say so. Indeed, the entire transitional justice experience for South Africans, even though it did not work as well in other countries in the African continent, was based on that same premise. It was honest at its core and was led by a visionary called Mandela. This was why it worked (with all its lack of perfection) for that country but did not work for others. Those who unthinkingly parrot the need for similar experiences for Sri Lanka should perhaps realize that fundamental difference.

Reclaiming a discarded sense of legal propriety

But there are many among us who still believe that, magically as it were, matters would right themselves and we would be able to reclaim our discarded sense of legal propriety. Unfortunately however this is day dreaming of the highest magnitude. What we have lost, particularly through the past decade and culminating in the present  where  reason  and  commonsense  has  been  thrown  to  the  winds  in  this ruinous clash between the judiciary and the executive, will take generations to recover, if ever it will.

As Otto Rene Castillo, the famed Guatemalan revolutionary, guerilla fighter and poet most hauntingly captured in his seminal poem ‘the apolitical intellectuals’, someday, those whom the country looked upon to provide intellectual leadership will be asked as to what they did, when their nation died out, slowly, like a sweet fire, small and alone.’

Castillo’s admonition about ‘absurd justifications, born in the shadow of the total lie’ applies intoto to this morass in which Sri Lankans find themselves in. We flounder in the mire of the arrogance of politicians who do not care tuppence for the law but still we cling desperately to our familiar belief of the authority of the law though this belief has been reduced to a phantasma. It is only when that ‘total lie’ is dissected remorselessly by ourselves and in relation to our own actions that we can begin to hope for the return of justice to this land.
That day, it seems however, is still wreathed in impossibility and uncertainty. Hence my Indian friend’s probing though casual questions a few days ago remain hanging in the air. Undoubtedly the answers to those questions lie not in blaming the politicians but in confronting far more uncomfortable truths about ourselves as a nation and as a people.

A surge of public empathy for a court under siege

The government’s brushing aside of the Supreme Court’s entirely appropriate order this week requesting Parliament to desist from continuing with the impeachment of the Chief Justice until a final determination was handed down in petitions being heard filed before it, was arrogant but unsurprising.

The  Bench  spoke  to  the  comity  that  must  exist  between  the  judiciary  and  the legislature  for  the  greater  good  of  the  country.  It  cautioned  that  this  would  be prudent as well as ‘essential for the safe guarding of the rule of law and the interest
of all persons concerned.’

But its words were in vain and at the close of the week, Sri Lanka’s Chief Justice was compelled to appear in person before the Parliamentary Select Committee (PSC) in the formal commencement of a politically driven impeachment process.

Neither purse nor sword but only judgment

American founding father and political philosopher Alexander Hamilton’s potent and powerful warning that ‘the judiciary has no influence over either the sword or the purse, it may truly be said to have neither force nor will but merely judgment…’ ((Federalist Papers, No 78) is therefore singularly apt for the dilemma in which Sri Lanka finds itself today.

The executive holds the sword of the community while the legislature commands the purse. In contrast, the judiciary is dependent solely on its judgment and integrity. If the integrity of the judicial branch of the State is destroyed through executive action or its own complicity, then all is lost. The executive is free to trample as it wishes on the judiciary, the law is then unseated and justice is thrown proverbially to the wolves.

In  the  present  impeachment  of  Sri  Lanka’s  Chief  Justice,  it  does  not  require remarkable wisdom to determine as to who will be the winner and who the loser in a head-on clash. This is possibly why Thursday’s order by the Supreme Court wisely sought to avert an open confrontation with the legislature at the outset itself. Commendable restraint was shown, transcending a most particular anger that must naturally be felt by judicial officers when the head of the judiciary is impeached in this way. Now that this request has been abruptly brushed aside by the government, the consequential judicial response remains suspenseful though it is not difficult to imagine  a  plea  of  futility  being  put  forward  by  the  Attorney  General  in  later hearings.

Significant differences with recent precedent

Notwithstanding,  this  week’s  measured  ruling  contrasts  sharply  with  an  earlier order of the Court delivered in 2001 when an impeachment motion lodged by the opposition was due to be taken up by a Select Committee against a former Chief Justice, Sarath Silva. In that 2001 order, interim relief was granted staying the appointment  of  a  Select  Committee  with  the  judges  opining  that  a  stay  was warranted due to a purported exercise of judicial power by the legislature. This view was peremptorily dismissed by the late Anura Bandaranaike, then Speaker of the House who reasoned in copious detail that the judiciary had no business interfering with the constitutionally mandated parliamentary process of judicial impeachments. Fortuitously, (for that former Chief Justice), Parliament was thereafter dissolved by former President Chandrika Kumaratunga, preventing any further action.

However there were significant differences between that impeachment motion and the current unseemly fracas. Charges against that former Chief Justice relating to abuse of judicial power had been ventilated long before 2001, causing a veritable public scandal as it were. That motion for impeachment was brought by the opposition and not by the government. That Presidency’s entire effort was, in fact, to prevent the impeachment being brought against that former Chief Justice for reasons that are well in the public domain.

Comity must exist between the judiciary and executive

In contrast, what we have now is a hastily drafted impeachment motion, replete with mistakes but driven by the formidable might of this government with accompanying full scale abuse of the judiciary by the state media. A greater contrast therefore cannot be evidenced. Rather than the executive safeguarding a Chief Justice against whom allegations of judicial misconduct had been leveled, what drives this present process is executive pique if not outright anger at a series of adverse Determinations by the Supreme Court on key Bills. The move is against the entirety of the Court for a Determination is not an opinion of an individual judge but a binding decision of the entire Court. The Court’s response this Thursday illustrates its recognition of the danger that it faces collectively. Indeed, given the peculiar context in which its intervention was sought, this was a far more appropriate ruling than the stay order handed down by a previous Court in 2001.

Whatever this may be, this judicial stand must be unequivocally supported by the Bar and by the citizenry. The Bar has bestirred itself recently in passing a resolution requesting that the President reconsider the impeachment of the Chief Justice. Contempt of court applications may be filed against an abusive state media. But its leaders need to question themselves in good conscience as to whether merely passing resolutions and engaging in private meetings with politicians and parliamentary officials  fulfils  the  heavy  responsibility  vested  in  them  given  the  extraordinary threats that face the country’s justice institutions?

An enchanted complicity in the executive’s attacks on the judiciary

Half-hearted responses to the instant crisis only expose the credibility of the leadership of the Bar.  Surely have we not learnt enough from the past? After all, the very omissions and commissions of the Bar were crucial factors that led to this crisis in the first place. As appreciated by the inveterate satirists among us, some of these legal worthies jostling to prove their bona fides against the impeachment were themselves thoroughly implicated in the ravages of justice that occurred during the previous decade, after which, it became unarguably much easier for any politician to call up a judge and exert inappropriate pressure.

We also saw lawyers vehemently arguing not so long ago in defence of presidential immunity in order to shield the President and his minions from the reach of the law.

It is only now that these worthies appear to have woken up to realities. One is tempted to ask whether they were cast under a spell, like the enchantment of old which helplessly bound Rapunzel, into conscienceless complicity with the executive all this while.

Furthermore, seniors of the Bar accepted unconstitutional appointments by the President in defiance of the 17th Amendment and steadfastly looked the other way when the 18th Amendment was passed. The grave historical responsibility of the Bar in this regard can only be mitigated by unconditionally courageous actions now. That much must be emphasized.

This Presidency should take heed

This impeachment is destined to leave us with a hollow shell where the authority of the law once proudly possessed centre stage. Black coated members of the legal fraternity will prance before courts in a bitter mockery of the legal process.

This is what is desired perhaps by those in the seats of authority. But the best laid plans of mice, men and authoritarian political leaders drunk with insatiable power may still go awry. The steady gathering of public empathy for a Court under siege is now noticeably under way. Undoubtedly this Presidency should take heed of bitterly dissenting voices, at times coming from the very support base that brought this administration to power.

To ignore these voices would be to imperil its ultimate political survival. Make no mistake about that.



Courtesy: The Sunday Times