By Kishali Pinto Jayawardene
Under creeping cover of the report of the Advisory Panel mandated by the United Nations Secretary General (UNSG), the Government of Sri Lanka appears to be leading the country even further down the precipitous slope of constitutional anarchy than it has gone so far.
At one level, all is sound and fury signifying profoundly nothing. Pronouncements on the Advisory Panel report emanating from all quarters of the government reminds us more of the legendary confusion of Babel rather than one solid voice defending this country with convincing reason.
This confusion is worse compounded by ad hoc letters written to the UNSG by Sri Lankan parliamentarians objecting at various points to the report, some even quite unnecessarily if not inexplicably accompanied by the curriculum vitae of the letter writer. Scurrilous abuse directed at the Panel members by ministers and their prancing supporters form part of this unappealing scenario. More to the point, such unruly behaviour attracts unhappy comparisons to a scarcely literate and distinctly rowdy nation which belies our claim to democratic traditions and careful engagement with the international community in the past.
There is little doubt that a good application of sense and sensibility would have led to a far different approach. Whatever may be the points of contention contained in the Advisory Panel report relating to civilian casualties and the actions of both combatants during the last stages of the war, the fact is that there was immense suffering of the Tamil people. Are we doing all that we can to address this most fundamental issue? To that extent and even though cynics may scoff at the practical efficacy of bodies such as the Lessons Learnt and Reconciliation Commission (LLRC), (with good reason given past experiences with such bodies), it cannot be denied that the testimony of many before this Commission pointed to the unimaginable extent of human suffering in much the same manner as the Advisory Panel report.
Inconvenient truths and absurd realities
We cannot wish such testimony away purely because it happens to be inconvenient. Neither can we hide behind vague concepts such as restorative justice or truth and reconciliation without examining the core meaning of such terms. Even now, reports appear in the daily newspapers regarding conflicting government policy on Tamil children in the North and East being compelled to sing the National Anthem in Sinhala. It appears that this policy depends on the whim and fancy of whatever minister who is being feted at that particular school function. Could there be anything more absurd than this?
The choice may not necessarily be rigidly between restorative justice, which the government embraces (even if theoretically), and retributive justice, which the government rejects wholesale. But the wise choice is certainly is not to proceed down the path of wholesale denial of any violations at all while at the same time, forsaking the core values of reconciliation in practice. And by itself the LLRC is not the best means by which we may pursue such a middle path by virtue of clear limitations of its very mandate and the context of its coming into being. A far more consensual mechanism is needed with definite measures of witness protection and supported by clear legal and policy reforms.
The link between what needs to be done to allay the fears of the minority communities and general Rule of Law protections is undisputed. It stands to reason that minority concerns cannot be addressed in a vacuum. When the 17th Amendment to the Constitution was so rudely bypassed by the political leadership (past and present) from 2005 onwards, the central issue was the sanctity of the constitutional document. How can a Constitution which is disregarded in its rule of law pre-conditions be safely relied upon to stand true to minority concerns?
Dangers of the draft 19th Amendment to the Constitution
Soberly examining our deficiencies in all these respects and redressing the same in the wake of the Advisory Panel report would have shown signs of a mature political leadership dedicated to the well being of this country. What we have however, is the converse. Regardless of the danger signals, we now hear of a proposed 19th Amendment according to which the Chief Justice of Sri Lanka will be compelled to retire either at the normal rule of reaching sixty five years or after five years in office, whichever comes earlier. As disturbingly, the President will be empowered to appoint the secretary to the Judicial Service Commission (JSC) taking this power away from the Chief Justice.
Even with all the discredit historically recorded against his name given the subversion of Sri Lanka’s judiciary during 1999 to 2009, one must, albeit reluctantly, concede the wit in former Chief Justice Sarath Silva’s observation yesterday (see lead news item of the Daily Mirror of May 7th 2011) that to enforce a five year end term for the Chief Justice would be akin to the office of the Chief Justice being reduced to a position on contract. It is also quite correct that this amendment would place the Chief Justice under an unacceptable condition in terms of judicial service that will not be applicable to the other judges of the Supreme Court. In addition, vesting the President with the power of appointment of the Secretary of the JSC is truly sinister. The result will be the direct undermining of the independence of the judiciary, both at the subordinate and appellate level.
These actions follow a predictable pattern. We had the office of the Attorney General brought under the Presidential Secretariat. The 18th Amendment took away all the positive features of the 17th Amendment in relation to appointments to the judiciary as well as the independent commissions and abolished time limits in respect of an incumbent Executive President seeking re-election. Interestingly, outgoing Chief Justice Asoka de Silva’s opinion that the status quo in relation to appointments made to high offices, including Sri Lanka’s judiciary would have been far more preferable under the 17th Amendment than in its absence, is telling. His assertion is that ‘a combined opinion especially on appointment and changes to the judiciary is always better than one person’s discretionary power’ and that ‘it might even be better if we re-consider the system again’ (see BBC Sinhala service, 24th April 2011).
Condemnation of the silence of the legal community
The silence of Sri Lanka’s purported legal intellectuals on these issues is disturbing. Is such silence meant to denote approval? This is a hard question but certainly one that should be asked.
And in their most commendable eagerness to consider the UNSG’s Advisory Panel report, the Bar Association of Sri Lanka should also be concerned in addressing the rule of law deficit in Sri Lanka.
In the seventies, a storm of protests was evidenced when judges were allowed to perform other duties or functions and to accept assignations for profit if authorized by the President (Article 110 of the Constitution). What may happen if the 19th Amendment goes through is far worse than this. Sri Lanka’s legal fraternity, (comprising practitioners as well as academia), has not been remarkably distinguished for its courage or for its conviction in recent years. If this silence continues in the face of the proposed 19th Amendment, the strongest public condemnation should follow.
National sovereignty and the trampling of our rights
The official line is that anything can be done within this country and questioning it from outside will amount to an unacceptable violation of domestic affairs. The importance of national sovereignty is resoundingly articulated by President Mahinda Rajapaksa.
But the overriding fact appears to be that state policies undermining the balance of power in constitutional institutions are not motivated by love for this country. Where is the sovereignty of the individual which the Constitution is expected to protect? And where does the individual go when his or her sovereignty is trampled underfoot by the very guardians who are vested with the duty to protect? Surely, are these not questions that disturb us at a very fundamental level?