Declining Trust In A Legal System; Where The “Fence Is Eating The Crops”! 

By Mohamed Harees –NOVEMBER 27, 2020

Lukman Harees

“Laws are spider webs through which the big flies pass and the little ones get caught.” –  Honore de Balzac

 ‘The law and morality do sometimes overlap, but the law, as they say, is whatever is boldly asserted and plausibly maintained. There is an old axiom: much law, little justice. We like to think the law provides some measure of justice, and sometimes it does. But justice is a more cosmic principle than what the law embraces. It needs no rocket science or elaborate surveys to find out that majority of those at the grass-root levels have the least trust in a system that appears unfair, confusing and inaccessible. They feel that wealth and political connections are now more important factors in gaining access to justice than it used to be. Impunity, breakdown of the rule of law and growing public suspicion about the independence of the Judiciary are some of the worst crises besetting Post- war Sri Lanka in recent times. Question should be asked “What would the Sri Lanka’s proverbial man on the street, “Citizen Silva” think?” of how justice system has served its ‘checks and balances’ role under the constitution in the recent past. 

Take for instance some examples in recent times. On one hand, there are many instances where impunity reigns high and those who are openly flouting the law, most notably monks and politicians, are being allowed to operate without fear of arrest or being dealt with under the law. Many cases of corruption brought against politicians were swept under the carpet. The present Parliament is a good reflection of this sad decline of moral standards in politics, with an array of swindlers, corrupt, drug dealers and underworld thugs being elected. Presidents are above law due to immunity, misusing their power of pardon. Sirisena pardoned Jude Jayamaha, who murdered a Swedish teenager in 2005 and Ven Gnanasara who was jailed for contempt of court. Gotabaya too let murder convict  ex-army soldier Sunil Ratnayake free. On the other hand, the usually laudable Sri Lankan Judiciary which has given many landmark progressive judgments in the past (like the judgement in 2018 suspending Sirisena’s controversial decision to dissolve parliament) has also been losing its credibility in recent times due to many apparent tainted decisions. Decision on favour of the 20th Amendment, murderer Premalal Jayasekara’s swearing in as an MP, former Presidential Secretary Lalith Weeratunga and former Director General of TRC Anusha Pelpita being exonerated, Pillayan on murder charges being released on bail, Basil Rajapakse’s foreign travel ban being lifted, are some of  the blackspots on this vital branch of government. On the other hand, imprisonment of some journalists and also Lawyer Hejaaz without being brought to trial is also a cause for concern. 

Both political violence and gross impunity for crimes by the state and pro-state forces Sri Lanka, have also plagued Sri Lanka especially in its recent history. With the trend towards apparent politisation of the Judiciary, the nation has been facing a new assault on justice and the rule of law, making politically-connected criminal suspects into victims, and investigators and legal reformers into criminals. Particular concern is also where Rajapaksa family members are being rescued from prosecution. 

At independence in 1948, Sri Lanka had a comparatively professional and independent judiciary. New constitutions in 1972 and 1978, however, cut back on the judiciary’s protection from parliamentary and presidential intrusions. The 1978 constitution vested unfettered control of judicial appointments in presidential hands. Analysts say that unlike other South Asian countries, no strong tradition or norm of consultation between the president and the chief justice developed. Nor did predictable rules immune from manipulation, such as promotion by seniority, emerge. 

Misfits/ corrupt like Sarath N. Silva (of ‘Helping Hambantota’ shame), chose to exercise his powers in ways that further sapped the independence of the lower courts and the Supreme Court. The illegal and highly politicized impeachment of Chief Justice Dr Shirani Bandaranayake in January 2013, followed by the equally politicized appointment of Mohan Pieris as her successor, was emblematic. International Commission of Jurists echoed that the Sri Lankan justice system cannot ensure accountability for human rights violations and war crimes because the judiciary has been deprived of its independence and impartiality, and lawyers suffer intimidation, hindrance, harassment and improper interference. 

Few sentences have been quoted more often than the aphorism: “Justice must not only be done, but must also be seen to be done”. This dictum was laid down by Lord Hewart, the then Lord Chief Justice of England in the case of Rex v. Sussex Justices, [1924] 1 KB 256. In this case, Lord Hewart went on to observe that what was important was not what was actually done, but what might appear to have been done and held :“Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.”

This principle is important in an era where public attention is focussed on the courts as the ultimate arbitrator in meting out justice to the people. Lord Hewart’s principle requires that Judiciary not only should be actually independent from executive interference but to be seen as being independent entities and not as departments or appendage of the those in the higher echelons of power. Naturally, harm is caused to our own legal system and its credibility by ignoring this salutary principle. It sustains an ethical requirement that judges and decision-makers more widely cannot hear a case if, from the perspective of a reasonable and informed observer, their impartiality might reasonably appear to be compromised — an appearance standard. In Sri Lanka, justice does not appear to be done in the eyes of the public, with the fence itself eating the crops it is supposed to protect.    

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