The Justices Have Done More Than They Realise

By Kumar David –JUNE 20, 2021

Prof. Kumar David

I am not sure whether Court of Appeal Judges Karunarathna and Gurusinghe appreciate that their judgement in the Shani Abeysekera appeal case has done more for the country than strike a blow for justice and the rule of law. The judgement came at a time when people were despondent. The universal theme in conversations in all circles and social classes was: The country is going to the dogs; it’s hopeless, Sri Lanka is finished; there is moral leprosy at the top; democracy is corroding day by day. A few days ago I had a science-based piece on Black Holes. Commentators couldn’t restrain their wit and inquired whether I was writing about Sri Lanka!

Here is a mordent paragraph form their Lordships’ 14-page judgement:

“It is my view (Bandula Karunarathna J. with Gurusinghe J. concurring) that on account of the unusual and extraordinary delay in lodging the first complaint, despite every ability to do so, demonstrates very strongly that the allegations against the suspect Shani Abeysekera are a result of falsification and embellishment and a creature of after-thought. On account of the said unusual and extraordinary delay, the complaint has not only lost the benefit of the advantage of spontaneity, but also smacks of the introduction of a fabricated, false version and an exaggerated account or concocted story involving a set of collaborators or conspirators, to unduly cause prejudice and harm to the suspect Shani Abeysekera, for collateral purposes. Not only that the said delay has not been satisfactorily or credibly explained. It is crystal clear that the statements given by the said witnesses in 2020 are contradictory to statements given by them in 2014”.

Judges are very careful how they frame their statements and strictly limit their conclusions to the case and facts at hand. I have watched by father and grandfather; a judge will not generalise beyond the case. The public however will place any judgement in the context of the prevailing social and political circumstances; in this instance public attitudes to the former AG, the new AG, the AG’s Department, the IGP and senior officers of the CID, and public cynicism of the regime’s attempts to manipulate law enforcement. A few weeks ago five judges of the Supreme Court held that about 30 provisions of the Port City Bill were incompatible with the Constitution – a world record? People then could not avoid inference that the regime was playing fast and loose with devious legislation, and now with law enforcement. Someone asked me: “Is this a drama to show the EU that our judiciary is independent?” No, the two cases have done so much damage to Gotha; this is most unlikely.

Two months ago I took the initiative in Colombo Telegraph to pronounce that the tide had turned; that Gotabaya, the presidential cabal, the government and the Double-Paksa regime, were all in retreat. Then two weeks ago I asserted more confidently that people were fed up with the President (Gotabaya Fatigue I think I called it). The subsequent slide has come faster than anticipated. There is hardly one pro-government Editor in the media, Ministers fight in public like dogs at a garbage dump, the SLPP Secretary and Petroleum Minister brawl while packs of MPs line up like mongrels behind each imposter. Another weary pack declares “If Basil were here this cock-up would have been averted” – the obvious implication is that Gota has screwed it up. The people, some in the opposition and the law courts are gaining in strength from each other’s mounting confidence.

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