Legality Of Government Actions Rendered Politically Irrelevant

Kishali Pinto-Jayawardena

December 2, 2012

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.