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Wednesday, May 22, 2024

The die is cast for the Lankan judiciary – Kishali Pinto Jayawardane

Akin to the 18th Amendment to the Constitution which had been brewing for quite some time before it was actually passed by a supine Parliament, the uproar in Mannar over the burning of the courts last week was certainly predictable, despite those who threw up their hands in horrified surprise.

Displaying of executive contempt
Exponentially increased contempt displayed by the executive for Sri Lanka’s judiciary was manifested in recent years with politicians from the highest levels downwards seeking to influence the outcome of cases, with criminals having political backing openly disregarding arrest warrants and with the judiciary being treated as an appendage of the government. It was therefore to be expected that any judicial officer who dared to oppose a political command would feel the heat in the very literal sense of the word.

And to preempt the inevitable argument that in the past, stones were thrown at judges’ houses and judges themselves abused in filth, it must be said that there is a crucial difference between then and now. As vile as those past incidents were, they were carefully planned and strategically employed against few key cases, not evident like a unsightly rash across each and every part of the skin, as is the case now At that time, there was intellectual and public opinion which, even in the most difficult days, resisted the government with all its strength. Most of all, ordinary people regarded the judiciary, warts and all, as an institution to be protected from politicians for the public good.

Judiciary itself becoming increasingly vulnerable
But in later decades, this public awareness changed drastically, taking on far darker tones. During 1999-2009, we had for the very first time, a Chief Justice who harboured political ambitions and unashamedly displayed the same from the Bench with neither the Bar nor the intellectual community exhibiting courage to stand up to him. The Bar was merely a welfare association for lawyers, (with the exception of the Presidency of the late Mr Desmond Fernando, PC), while intellectuals, or those passing off as such, were more preoccupied in learned arguments on the theory of law in the cooling comfort of five star hotels. Now, the way lay wide open for executive attacks on the judiciary in a far more dangerous manner even after this tumultuous period had passed.

Inevitably therefore, in the second term of the incumbent Presidency, the Sri Lankan judiciary struggled as never before to retain its integrity. Perhaps we did not have this President saying, as one of his predecessors declared more than thirty years ago, that “the judiciary would pose difficulties for the executive if they are wholly outside anyone’s control” (President JR Jayawardene, The Daily News 5th February 1981) but the message was very clear nonetheless, with the iron hand of executive domination encased in a velvet glove of deceptively rustic bonhomie.
So every Magistrate, District Judge, High Court judge and Court of Appeal/Supreme Court judge became more at risk from physical retaliation by enraged politicians of every colour and shape, from the highest to the lowest. On the flip side of the coin, public anger became apparent when judgments were perceived to have been influenced by executive control. It was a harbinger of things to come when lawyers smashed furniture and battered on the doors of Colombo’s High Court when the popularly known ‘White Flag’ verdict was delivered against former Army Commander General Sarath Fonseka. These outbursts were to be deplored as much as public attacks on police stations. However, they were signs that the historic respect for Sri Lanka’s institutions of justice had been dangerously undermined, leading to the judiciary itself becoming increasingly vulnerable.

Saying that enough is enough
This week, following the actual burning of a court by a political mob, it is heartening to see that judges and lawyers appear to have decided that enough is enough. The one day strike by the judges and the call by the Bar Association of Sri Lanka (BASL) to conduct an inquiry and arrest those responsible, including a government minister allegedly involved in instigating the burning of the Mannar courts, are clear warning signals.

So too are today’s protest rallies, from university lecturers protesting the collapse of our educational structures, to parents protesting the raping of little girls by local politicians to animal rights activists protesting the ‘disappearances’ of dogs and human right activists protesting the ‘disappearances’ of human beings as well as media activists protesting the unspeakable invective screamed at a local editor by Sri Lanka’s Secretary to the Ministry of Defence and the President’s brother Gotabhaya Rajapaksa during the routine checking of a story. If one may be forgiven a note of levity at this point, this week’s protests across Sri Lanka’s courts may well invoke the rallying cry, ‘the more, the merrier.’

Meanwhile it is reported that the BASL is contemplating filing contempt of court charges against the minister which is indeed, the very purpose for which contempt ought to be used and not for the purposes of dealing with hapless litigants who talk somewhat more loudly than usual in courts or critics who examine the functioning of the judicial systems. We have seen far too little of contempt powers being used against truly contemptuous politicians.

Protests should continue until effective results are evidenced
In any event, the rude fact is that, notwithstanding all the bluster by this government minister that he was nowhere in Mannar during that time, threatening phone calls had been made to the Mannar Magistrate by this same individual. The government needs to take effective action rather than merely repeat its tired refrain of ongoing investigations. If an opposition parliamentarian rather than a government minister had been involved, the suspects would have been arrested by this time.

On their own part, if these protests by judges and lawyers cease without actual punishment of the offenders being evidenced, then this will surely portend even greater calamities for the Lankan judiciary in the future. With the burning of the Mannar courts, we have reached a classic point of no return. Of that, we should have little doubt.


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