'Defence ministry is the shadow state that runs the country' - Basil Fernando

05 FEBRUARY 2013

BY KITHSIRI WIJESINGHE

Basil Fernando, based in Hong Kong, heads the Asian Human Rights Commission (AHRC) and the Asian Legal Resource Centre (ALRC), which holds the ECOSOC status with the United Nations. In 1992, he joined the United Nations Transitional Authority (UNTAC) as a senior human rights officer before becoming the Chief of Legal Assistance to Cambodia of the UN Centre of Human Rights. After assuming duties as head of the AHRC/ALRC in 1994, he played a key role in drafting the Asian Human Rights Charter which was declared in Kwangju, South Korea in 1998.

Throughout the last two decades, he has tirelessly worked to raise international awareness of the deteriorating state of fundamental freedoms and human rights in Sri Lanka.

Basil Fernando spoke to Kithsiri Wijesinghe on the recent legal turmoil triggered by the rift between the judiciary and the president.

Excerpts of the interview follow:

You have been quite outspoken and critical of the recent impeachment move against Chief Justice Shirani Bandaranayake. Why?

The independence of judiciary is at the heart of democracy and rule of law. The independence of the judiciary of Sri Lanka has been attacked by the 1972 and 1978 constitutions. The strength of the judiciary has diminished day-after-day due to these constitutions. Now by this impeachment which was done without a competent and impartial tribunal deciding on the validity and the proof of the charges Sri Lankan’s judiciary has suffered a blow from which it would be almost impossible to recover. This impeachment has created a loss to the people in turns of the kind of government they wish to have. With this impeachment they executive president asserts itself over the judiciary. The judges will not have the security of their house. Without that it is not possible to have the independence that democratic governance requires. The people have not really grasped the terrible consequences of this move.

It is frightening to live in a country where people cannot turn to the judiciary for the protection of their rights. The task of the judiciary is primarily to protect the dignity and the rights of individuals against the over powering influence of the executive. Now, without that protection anything can happened. There can be illegal arrests, illegal detentions, torture, extrajudicial killing including forced disappearances, denial of freedom of expression and association and right to choose a government of once choice. When these are violated with impunity it is a terrible situation. I am frightened about what is going to happened. When judges are unable to protect the law there are many who will take advantage of the situation. We hear of women being raped by powerful people and there is no investigations or any credible action. There are thefts robberies and land grabbing. Powerful people backed by the government will take anything they desire, be it land or anything else and people will be powerless to resist. Democratic resistance requires the support of the judiciary. Now if people resist they will be treated very badly, as they say like dogs. That is why the removal of the Chief Justice was a sign of very bad time to come.

Among other things, the impeachment was deemed detrimental to the independence of the judiciary. Many observers, both local and foreign, were highly critical of the conduct of the government despite the government's insistence that they were simply acting according to the formal norms and procedures laid down by the Constitution. The government further pointed out that such procedures have been followed by previous governments as well. How do you counter such comparisons?

There is problem with the constitution in that it had not clearly laid down the safeguards for the judges in the event of removal. Such safeguards are very fundamental to democracy. Article 107(3) has said that these measures must be made by the law in the future. So therefore if the government wanted to act democratically they could have easily passed a law which embodies the norms to safeguards the rights of the judge before removal. Such a law would have mentioned that before removal charges must be proved before an impartial and competent tribunal. In our constitution if the president is to be removed there would have to be an inquiry conducted by judiciary regarding the charges. The constitution however was silent about a judicial inquiry for judges. Why was this? J R Jayawardene, the first president, was a shrewd and very nasty man. He never acted fairly towards judges. In fact he wanted the judiciary to be subordinated to him. We all know we have a bad constitution. Both Mahinda Rajapaksa and Chandrika Bandaranayaka came to power with a promise to undo this bad constitution. There is national consensus that the constitution is very bad. Therefore we do not have to go by this bad constitution. If the government says we will use this bad constitution for our advantage that is really a political manipulation without any regard to principles. The fact is the government does not want an independent judiciary. That is the heart of the matter. It is on that the people in the country to take sides. Will they also did not want an independent judiciary?

The newly appointed Chief Justice, Mohan Peiris, has served as the Attorney General and the legal adviser to the cabinet; his name has been cited as co-respondent in many fundamental rights cases filed against the state. How would his appointment affect the future of such cases?

Many serious questions have been raised about the suitability of Mr. Mohan Peiris for the post of Chief Justice. Any government that is to abide by its principle would have inquired into those allegations before a making this appointment. No such inquiry was made. The public protest against the appointment was ignored. The removal of one CJ and the appointment of the new one has been done without regard to basic and fundamental principle. It is not possible to predict what is going to happened. What can be predicted is that the independence of the judiciary in Sri Lanka has been ignored by the government. How a country is going to face its future without any restraints on the power exercised by an independent judiciary is the key issue. Someone has said that it is going to be like the use of a bulldozer without breaks. All that one could say is very terrible times are ahead.

Here, perhaps, I may be repeating the same question formulated in a different way. But before being appointed as chief justice, Mohan Peiris used to represent the Sri Lankan government quite frequently, at various international forums and summits defending its questionable human rights record. Now, when it comes to fundamental rights of the citizens, is there any hope that his future conduct would not tend to get shrouded in bias, preconception and political loyalties?

Fundamental rights have some meaning only when there is an independent judiciary to adjudicate on those rights. As I have mentioned above the real problem is the loss of this independence. I personally do not think that resorting to fundamental rights will make any significant difference in Sri Lanka. Even in the past fundamental rights cases did not contribute very much to the protection of the rights of the individuals. The government was under no obligation to implement the orders given in the judgments given on the fundamental rights. In the future it will be even much worse.

But already the campaign that emerged against the impeachment move demanding judicial independence seems to have been forced into silence. There have been numerous reports that some of the leading lawyers have received death threats while the smear campaign against them has further intensified in the state media. Any comments?

Death threats and threats of forced disappearances are now ingrained part of way of life in Sri Lanka. The Ministry of Defense has paramilitary forces and intelligence services that can harass or harm anyone they wish. This includes the lawyers. And it may even include any independent judge in the future. The Ministry of Defense is for most parts the only really important organization in the country. It tries to control everything and everyone. No one is really secure and no property is also is secure anymore where a Chief Justice has no protection what is there to talk about lawyers or anyone else?

So, in the absence of judicial impartiality and fairness, what alternative options are left for the victims of grave human rights violations? For instance, is there any possibility to seek justice outside the country?

When justice fails inside the country there is very little that is available outside aspect to seek refugee states or temporary protection elsewhere. International law provides some remedies. But to get that one needs to do all the work of collecting evidence inside the country. And it is very dangerous to do that. That is the problem. To get any justice you need to collect evidence and that can be stopped by the Ministry of Defence (MoD) through the use of paramilitary and intelligence services.

Since you mentioned about the MoD, we would like to raise the issue involving Jaffna University students which is a matter of paramount importance. They were arrested under anti-terror laws and sent to a 'rehabilitation prison' under the orders of the Secretary of Defence. Even if you leave aside the outrageously baseless allegations thrown at them, such an order denies them any opportunity to defend themselves in court, which is a blatant violation of the fundamental right to be treated as innocent until proven guilty by an impartial inquiry. On top of everything, this brings into question the powers vested in the Secretary of Defence, who seems to exercise enormous authority, despite being just another administrative officer. What have you got to say?

As I have already said the only really important institution in the country is the Ministry of Defense. As one researcher has said it is the “the shadow state”. Today it is the shadow state that is running the country. The judiciary and the legislature have hardly any power. Within the country people have no protection from the actions of this ministry. We are today living under the control of a security apparatus that has no regard for any individual. The overall problem is that we no longer live under a democracy. The 1978 constitution has achieved its purpose which was to end democracy and bring people under a total control of the executive president who will protect himself through his security apparatus which is run under the Ministry of Defense.