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PROTECTION AND PARTICIPATION - SOUTH ASIA LEGAL REFORMS AND HUMAN RIGHTS
Vol. 3 No. 2 February-March 2006 - CELEBRATING NEPAL AND MOURNING SRI LANKA; A STUDY OF THE CONTRASTING MANNER IN WHICH TWO COUNTRIES IN SOUTH ASIA HAVE HANDLED THEIR DEMOCRATIC FREEDOMS
Co-opting the ‘watchdogs’; Sombre thoughts on the angst of Sri Lanka’s ‘civil society’ and the media………………………
Kishali Pinto-Jayawardena *
Introduction
The steady eating-away at one’s internal strength and the sapping of one’s will to resist are classic psychological phenomena exhibited in concentration camp victims. When such phenomena are reflected in the collective psyche of an entire country, and particularly in the behaviour patterns of its intellectuals, activists and the media, the time has come to be truly anxious.
This is the case now in Sri Lanka, once boasting of a literate people and a proud legacy of democratic rule in Southasia. Consequently, it is important to interrogate the role that Sri Lanka’s media and civil society, (the latter term is used purely in relation to Colombo’s intellectual elite), played in the degenerative process of Sri Lanka’s democratic institutions. Locating their historical responsibility in that respect is extremely important.
The framework of this discussion centres on the contrasting interventions of these forces prior to and after 1994 in regard to safeguarding the independence of the judiciary and protection of the principle of constitutionalism.
From outright civil anarchy to democratic dysfunction; which is worse?
The mid 1980s to early 1990’s was undeniably a difficult period for Sri Lanka. Counter-state repression was enormous both in the south, against the Janatha Vimukthi Peramuna (People’s Liberation Front, the JVP), and in the northeast against the LTTE, as exemplified by the use of extraordinary laws such as the Public Security Ordinance and the Prevention of Terrorism Act.
While the 1983 widescale killings of Tamils marked one of the most horrendous incidents in post independence history, the upsurge in violence against both Sinhalese and Tamils by government forces by the late 1980’s resulted in staggering numbers of deaths and disappearances. At that time, Sri Lanka registered the second-highest number of cases of involuntary disappearances in the world, next only to Iraq.
In the mid-1980s, I had just entered Colombo’s Faculty of Law, and was juggling legal tomes with a somewhat bewitched involvement in political and legal journalism. Both offered a unique vantage point from which to observe, as well as to be intensely involved in the spirited defences being mounted against state repression by the media, civil society, professional workers and universities. Those were dangerous but heady times – one felt supremely justified in struggling for a better order and a democratic way of life.
Collective fighting in 1994, by activists, the media, academics and professionals swept away a distrusted administration of the United National Party (UNP). On an overwhelming mandate for peace, it instead installed a fresh-faced Chandrika Kumaranatunge, who led Sri Lanka’s other main political party, the Sri Lanka Freedom Party (SLFP).
But far from those idealised hopes, the political story thereafter reflected a common or garden-variety leadership, autocratic and unenlightened. 11 years later, when she reluctantly gave way to a presidential successor from her own party, the democratic fruits of her period in power were consummately bitter.
The first years of Kumaranatunge’s tenure were politically easy, basking as she did in the unprecedented people’s vote that put her in power. Yet as the war with the LTTE resumed after a brief cessation of hostilities, and the media – once her unequivocal supporter – became increasingly critical of her handling of state affairs, Kumaranatunge’s incipient defensiveness came to the forefront.
Particularly disappointing was her use of presidential commissions, then investigating the large-scale disappearances of the previous decade as well as other political assassinations, to discredit her political opposition rather than to afford closure and healing for the thousands affected. The country thereby lost a singular chance to emulate the South African post-apartheid experience, leading to a new and genuinely inclusive constitutional contract. Later, as the LTTE increased the ferocity of its attacks, Kumaranatunge’s defensiveness translated into a stubborn inability to brook opposition from any quarter. This was indeed the point from which she launched her attack on one of Sri Lanka’s most cherished democratic institutions – the judiciary – with devastating consequences for the protection of the rule of law.
Meanwhile, the impetus for peace gradually dwindled to a perilous ceasefire agreement, brokered not by her administration but rather by the opposition UNP during the short period when they co-existed in government. The agreement was underpinned by Norwegian ‘facilitators’, who, by 2005, continued in their role more as a result of international pressure than through a solid bulwark of public support. The ceasefire agreement itself prevented the breakout of active hostilities. But a shadow war continued with inevitable casualties on both sides, while the protection of human rights of ordinary Tamils and Muslims, terrorised by LTTE totalitarianism, was relegated to the sidelines.
The crushing of the great expectations on which Kumaranatunge came into office was comprehensive, catapulting the Sri Lankan people into a new and dangerously fragmented political reality.
To be fair, Sri Lanka’s opposition parties – particularly the UNP, in its fundamental inability to provide an honest counterpoint to its traditional political rival, the SLFP – certainly played a major role in the defeating of these hopes. Wiser leadership by the Kumaranatunge presidency, however, might have prevented the continuing deterioration of the countries’ democratic processes. Unfortunately, this was not to be. I will now look at a particularly vital issue; the deterioration and devaluing of the country’s judiciary.
Protecting the Judiciary; from the 1970s to the 1980’s
From the late 1970’s to the early 1990s, immediate interventions had been evidenced by Sri Lanka’s civil society in particular against executive or legislative attempts to undermine the judiciary. There was, of course, a particular historical context to such attempts.
Sri Lanka’s Independence Constitution in 1947 embodied a strict separation of the judicature from the executive and the legislature. The Chief Justice and the Judges of the Supreme Court were appointed by the Governor General, held office during good behavior and could not be removed from office except by the Governor General upon an address of the Senate and the House of Representatives.
A Judicial Service Commission (JSC) consisting of the Chief Justice, a judge of the Supreme Court and any other person who shall be or shall have been a Judge of the Supreme Court was also established. The JSC was vested with the authority of appointing, transferring, dismissing and exercising disciplinary control of all judicial officers, except a judge of the Supreme Court and a Commissioner of Assize. In this particular legal order, the independence of the judiciary was safeguarded to some extent: the appointment of judges of the apex court was entrusted to the Governor General, who was a representative of the Queen and not a political creature, and the JSC was a body independent of either the legislature or the executive.
However, ten years later, this separation of powers came under direct threat by legislation that attempted to give the Minister of Justice authority in the appointment of judicial officers. The Supreme Court responded by declaring the legislation invalid.
Executive and legislative efforts to venture beyond its legitimate authority were not to stop at that. In quick succession, the Supreme Court struck down further legislation perceived as affecting its independence.2
Not unnaturally, these demonstrations of judicial strength were little to the liking of the holders of political power at that time. Equally worrying to their minds was the thinking of the Supreme Court in the Ranasinghe case, later affirmed by the Privy Council3, that the provisions of section 29(2) of the Independence Constitution-
“represented the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution and are therefore unalterable under the Constitution”4
Angered by what it saw as an unwarranted bridling of their political reins, the United Front government that swept the polls in 1970 determined on a new constitutional contract. The National State Assembly was to be the sole and supreme repository of power. The argument was simple. The people were supreme. Parliament was elected by the people. Therefore, Parliament ought to be supreme. All other institutions had to give way. As then Justice Minister Felix R. Dias Bandaranaike stated-
“ Nobody should be higher than the elected representatives of the people, nor should any person not elected by the people have the right to throw out the decisions of the people elected by the people. Why are you saying that the judge once appointed should have the right to declare that Parliament is wrong.”
Acting in a spirit of what they saw as righteous anger (the tragic consequences of which were acknowledged only years later), the framers of the new Constitution deliberately set out to marginalise the role of the judiciary.
The first Republican Constitution categorically declared in Article 3 that the judicial power of the people through courts and other institutions created by law may be exercised directly by the National State Assembly. The right of appeal to the Privy Council was abolished and the judiciary was deliberately and systematically stripped of its power to the extent that the judges of that time were even deprived of their traditional trappings of office such as their robes and wigs. Replacing the Governor General who was under the Independence Constitution required to exercise his powers, authority and functions as far as possible in accordance with the constitutional conventions in the United Kingdom, the second Republican Constitution validated political interference in the judiciary by handing the power of appointment of judges of the higher courts to a non elective President acting on the advice of the Prime Minister.
In place of the earlier Judicial Service Commission, a twin Judicial Services Advisory Board (JSAB) and Judicial Services Disciplinary Board (JSDB) was established. The JSAB had no right to appoint judges of the minor courts but only to recommend their appointment to the Cabinet of Ministers, while the JSDB had the power to exercise disciplinary control and dismissal of judges of the minor courts and state officers exercising judicial power. Here too, political control over the JSAB was ensured by requiring that two of the five member commission of the JSAB be officers other than judicial officers; the actual appointees turned out to be, in fact, the Secretary to the Ministry of Justice and the Attorney General. Similarly, while the composition of the JSDB was not to be faulted, their decisions could be set aside by an appeal to the Cabinet, thus rendering their powers largely nugatory.
The supreme law of the land made legal a number of other astonishingly undemocratic features including the passing of emergency without a debate, abolishing judicial review and establishing a Constitutional Court which had the limited power to scrutinize bills, and this, too, in 24 hours when the bill was certified as being urgent in the national interest. Fundamental Rights were included in the Constitution but made impotent by open ended restrictions and no specific enforcement procedure.
Interpreting the democratically subversive theory of the Constitution into practice, it was not long before open conflict became apparent. Parliament and the newly set up Constitutional Court clashed head on at the first sitting of the Court over the Press Council Bill when the legislature decreed that the court had no discretion to give a liberal interpretation to a specified time limit within which to determine the constitutionality of the Bill. The entire court resigned and the Government was compelled to appoint a fresh court. From this point onwards, relations between the courts and the then Justice Minister plummeted downhill. It was, in truth, the lamentable start of the settling in of the Sri Lankan judiciary into what could, with just reason, be referred to as a state of seige.
The second 1978 Republican Constitution of 1978 (the prevalent law) promised an (illusionary) respite for a beleagured Sri Lankan judiciary. This constitutional document did indeed contain many features that were a definite improvement on what had prevailed. The role of the Supreme Court as the “highest and final superior court” was constitutionally protected and the Court was given special jurisdiction in respect of election petitions, appeals, constitutional matters, fundamental rights (now made justiciable) and breach of the privileges of Parliament. The appointment of judges of the superior courts was by an elected President “by warrant under his hand”.
As in the two previous Constitutions, the security and tenure of the judges were guaranteed and judges of the superior courts held office during good behaviour and could be removed only after address of Parliament. Additionally, it was specified that the address for removal should be on grounds of proved misbehaviour or incapacity and that the full particulars of such allegations should be set out.
The JSAB and the JSDB, which had proved to be notoriously incapable of preventing political interference in the minor judiciary, were replaced by a Judicial Service Commission (JSC) vested with the same powers. The JSC was to consist of the Chief Justice and two other judges of the Supreme Court, named by the President, who could be removed only for cause assigned.
Old habits, however, died hard. A misleadingly innocuous clause in the Constitution that specified that all judges of the appellate courts shall, on the commencement of the new Constitution, cease to hold office, was used by the executive to radically “reconstitute” the higher courts. Seven out of the nineteen judges holding office were not re-appointed, thus reducing their guaranteed tenure. Before long, it became evident that political usurpation of the authority of the judiciary could not be contained by the new constitutional order. Rather, it increased in ferocity until it became a moot point as to which was worse: a constitution which legitimised an inferior judiciary or a constitution which was institutionally better, but under which judges were threatened by the most appalling executive and legislative excesses.
Barely three months after promulgation of the new Constitution, a decision of the Court of Appeal was nullified by a legislative response that amended the new Constitution in a manner which denied the Court of Appeal jurisdiction in certain specified cases. The Court had held with the former Prime Minister that a Special Presidential Commission of Inquiry appointed to look into her actions during the preceding years could not be vested with retrospective powers. Subsequent events were even more devastating. Police officers found responsible for the violation of fundamental rights were not only promoted, but their damages and costs were paid by the Government. Procedural difficulties in judicial officers taking the oath of allegiance under the Sixth Amendment resulted in the police locking and barring the Supreme Court and the Court of Appeal and refusing entry to judges who reported for work. Following unpopular decisions, judges’ houses were stoned and vulgar abuse was shouted at them by thugs.
“ The judiciary would pose difficulties for the executive if they are wholly outside anyone’s control”
said then President JR Jayawardene making his position on the independence of the country’s judiciary abundantly clear.5 Other examples of executive coercion were many; notably the impeachment of then Chief Justice Neville Samarakoon when he engaged in criticism of the government.
Despite this pattern of executive coercion, from the mid-1980s onwards in particular, Sri Lanka’s Supreme Court strove to establish itself as the rights arbiter for thousands of people, and among the most to benefit were the minorities. It was during this period that the court, in its boldest efforts ever, asserted the right to speedy trial of individuals detained under draconian national security and anti-terrorism legislation. This was during the height of the state’s counter-terrorist measures, in both the northeast and the south.
Spurred on by civil-society monitors, vigilant in the protection of fundamental liberties, the halls of justice became, indeed, the final recourse for many. These judicial interventions were all the more creditable given that the Sri Lankan Constitution lacked the full-bodied provisions of the Indian Constitution, such as the explicit enshrining of the right to life and the granting of a broad basis on which public interest groups – not only those personally aggrieved – could come to court.
The Role of Civil Society from the mid 1990’s onwards
During the late 1970’s to the early 1990’s there was no doubt that civil society intervened through collective protests, statements, memorandums and protest notes on many instances where threats to the country’s democratic process was evidenced. A highly creditable and strong moral opinion was constituted therein which politicians were compelled to listen to as representing the voice of constitutional governance. Correspondingly, the media also claimed a louder voice for itself in articulating the importance of the democratic process. . Indeed, such collective interventions constituted a large part of the ‘people power’ that swept Kumaratunge to power in 1994.
However, analysis of the role of civil society from this point onwards shows a distinctly changed character. From 1994 until the end of Kumaranatunge’s presidency in 2005, civil society interventions were markedly less evident. By the late 1990s, many of Sri Lanka’s primary civil rights voices had been co-opted to advisory roles within government bodies. By itself, such advisory functions may not have been problematic if this had not been accompanied by a withdrawing from their previously strong interventionist roles.
Tragically, this was particularly so in relation to increased executive action to undermine the judiciary. By all rights, the increasing boldness of the Court in the late eighties to the latter part of the 1990’s should have led to a flowering of rights-motivated jurisprudence and a democratic system of checks and balances as regards actions if the government and its officials.
However, what transpired in the late 1990s was a severe backlash by the Kumaranatunge administration, against what it saw as an unwarranted judicial interference in government affairs.
Judges were attacked in personal terms in Parliament by Ministers taking refuge under the cover of parliamentary privilege. President Chandrika Kumaranatunge was quick to engage in public and unrestrained criticism of the judiciary. Then Minister of Justice Dr G.L. Peiris (himself a former Vice Chancellor and onetime Dean of Colombo’s Faculty of Law) speaking in Parliament at the Committee stage of discussions of the votes of his Ministry in 1996 stated that:
“it is very important for the Court to confine itself to the proper sphere and not to overreach itself and not to arrogate to itself the functions that belong to the Executive and the Legislature.”6
This executive backlash culminated in 1999 with the highly contested appointment of then-Attorney General S N Silva – who had close personal ties to the president – to the office of Chief Justice. At the time that this appointment was made, there were ongoing Supreme Court-initiated inquiries about alleged abuse of power by the appointee while in office as Attorney General.
Importantly, Kumaranatunge’s appointment bypassed the court’s seniormost judge – Justice M D H Fernando, largely responsible for many rights-conscious judgements – who by all rights should have been the one promoted.7
Subsequent years witnessed an unprecedented stream of allegations of political partisanship against Chief Justice Silva, which surpassed anything that Sri Lanka had seen pre- or post-Independence. These were manifested in two impeachment motions against the Chief Justice being lodged in parliament, but which were defeated by the summary dissolution of the legislature by President Kumaranatunge.
Indeed, in regard to the first such attempt, a Bench of the Court issued a stay order against the Speaker of Parliament entertaining the impeachment motion. Later, the legislative assembly itself was dissolved by presidential decree. In the period to come, fundamental rights petitions lodged in the Supreme Court against the appointment of Chief Justice Silva were dismissed by a five member bench of the Court, constituted by order of the Chief Justice himself (notwithstanding protests that he should not use his authority to do so). The Bench was constituted (not of the seniormost judges at that time but rather, the juniormost judges.
Assessing the cumulative impact of these events, a 2001 report of a committee of the International Bar Association concluded that, “…the perception of a lack of independence of the judiciary was in danger of becoming widespread with extremely harmful effects on the rule of law in the country.”8
Again, in his report in April 2003 to the UN Commission on Human Rights, the United Nations Special Rapporteur on the Independence of the Judiciary wrote,
178. The Special Rapporteur continues to be concerned over the allegations of misconduct on the part of the Chief, Justice Sarath Silva, the latest being the proceedings filed against him and the Judicial Service Commission in the Supreme Court by two district judges (which is set for hearing on 27 February 2003).9
In response to these challenges, Sri Lanka’s civil society as well as the media was largely silent. Excepting a few determined writers and even fewer instances of conference discussions and intermittent, (indeed, at times shamefully theoretical), research papers, there was no sustained effort. This apathy was only matched by the equally problematic withdrawal of Sri Lanka’s Bar from efforts to safeguard the dignity of the bench. In personal discussions at that time, I remember UN Special Rapporteur Dato Param Coomaraswamy expressing his extreme perturbation at the non-manifestation of sufficient voices of protest at that time.
The reasons for this silence as far as the Bar was concerned, were due to a lamentably self-motivated sense of survival by individual lawyers regarding their professional careers as well as intense politicisation of the legal community as a whole. Underlying factors hinging on personality likes and dislikes and, (as I learnt in amazed if not naïve retrospect), even religious factors concerning the process of appointment to the office of the Chief Justice also played a major part.
Given the dismal state that Sri Lanka’s legal profession had collectively deteriorated to by the late 1990’s, this withdrawal was not surprising. However, it was inaction on the most part, of the academia, activists and the media that set the final seal on a sad state of continuing destabilisation of one of the country’s most cherished democratic institutions. In another era, activism on their part would have been an ideal launching pad from which an apolitical campaign might have been mounted against government interference with the judiciary. But this was not to be.
Indeed, the Kumaranatunge administration itself was not the only culprit for this state of affairs. During the short time that the opposition United National Party was in government under her Presidency, no action was taken to bring outstanding allegations of abuse of power against the Chief Justice to a close by either clearing him or finding him responsible on the charges through an inquiry invoking the required parliamentary process. The end result of the loss of public faith in the institution of the judiciary was enormous.
In 2003, when Justice Fernando prematurely resigned his judicial position on the basis that he was unable to serve honourably in his post, a petition was signed in his support by over a thousand of the country’s leading legal academics, lawyers, activists and professionals. This was the one exception to the otherwise widespread apathy of Sri Lanka’s ‘intellectuals’. But President Kumaranatunge’s obduracy prevailed, going so far as to engage in a second pre-emptive strike of dissolving the parliament when the second impeachment motion against the sitting Chief Justice had been filed in the House. This motion lapsed thereafter.
During this period, apathy on the part of civil society was so predominant that, when some members of the higher judiciary became conscious of the stepped up public scrutiny and began to use ‘contempt of court’ actions to guard itself against public criticism, few murmurs were heard in the plush boardrooms of Colombo’s NGOs.
Indeed, when a 40-year-old teacher and father, Anthony Michael Fernando, was sentenced to one year of rigorous imprisonment (by a bench presided over by Chief Justice Silva) purely for speaking loudly in court, not a single local NGO raised a voice in protest. Nor was any reaction evidenced from Sri Lanka’s National Human Rights Commission in at least, generally raising the issue of contempt of court. The pages of Sri Lanka’s main newspapers also did not take up the cause in any notable manner.
Instead, it was left to a handful of domestic lawyers and a regional rights body to intervene on Fernando’s behalf. Subsequently, it was a good, if not telling, matter for celebration when the UN Human Rights Committee communicated its views that the sentencing was in violation of international conventions forbidding arbitrary deprivation of liberty. The committee called upon Sri Lanka to enact a contempt of court law and to ensure that such incidents were not repeated – although the state’s subsequent adherence to these views is doubtful, despite the conflict it will create with the country’s obligations under international law.
The use of contempt power later became increasingly directed at the media as well resulting in some reactions on the part of major media lobbying groups in Sri Lanka. However, the campaign on codifying and defining the use of contempt laws did not result in the enactment of a law despite a Parliamentary Select Committee sitting in that regard in 2003. This Committee too lapsed when Parliament was dissolved towards the latter part of that year. Draft contempt laws put forward by some sections of civil society remain under consideration.
The failure of civil society and the media in all the above respects was only part of a larger failure in the context of the ongoing North-East war itself. Efforts were manifested from some quarters of civil society, particularly in the context of the conflict, to involve citizens of the northeast in dialogue. These processes produced a plethora of research papers and learned analyses, but were wholly unsuccessful in emphasising the human rights agenda in the peace negotiations. They were also powerless to stop the LTTE killings, torture and disappearances of Tamils who opposed their policies, nor the general coercion and extortion in uncleared areas. Though nominal concessions were made by both parties to include such rights and gender concerns in the peace process – including the creation of a gender subcommittee – none of these resulted in any practical gains.
Then again, the period saw the distasteful growth of the NGO culture and the obscenity of five-star conferences being held on multifarious themes such as human rights, constitutionalism, poverty and the ethnic conflict – with little or no participation by actual victims. Whereas earlier activism had been spontaneous, for the most part generating its own dynamism, now it became confined to tired refrains of peace and reconciliation or strategic interventions based on political choices, rather than on genuine apolitical commitment.
This dysfunction between victims and ‘human rights activism’ became even more marked in the period following the 2004 tsunami. Huge amounts of money, ostensibly marked for humanitarian purposes, were suddenly being spent by many non governmental organisations (NGOs) and International non governmental organisations (INGOs) on lavish personal lifestyles, offsetting the many genuine attempts made by some NGOs to help in the actual rehabilitation process. Quick to seize on their chance, radical elements within the political establishment increased their call for NGO regulation, spurred on by the unequivocal hostility that NGOs themselves displayed for any kind of regulation, including self-regulation.
By the change in millennium, civil society had been largely co-opted by the system. Those remaining had submitted themselves to a kind of dreary resignation, which traced itself to decades of conflict and the abandonment of hope that the system would right itself to an appreciable, democratic functionality. Ironically, about this same time, grassroots groups and community-based networks were, in counterpoint to their city-based colleagues, embarking on frontline defence campaigns against police torture and brutality. The collective angst of the Colombo-based intellectuals, on the other hand, had become widespread.
Insofar as the media was concerned, its response to these multifarious issues facing Sri Lankan society was equally problematic. Its silence, for the most part, in relation to the subversion of the judicial process was problematic. Its reporting on the ethnic conflict continued to lack insightful and rights friendly perspectives.
Collectively, the backdrop was well set for what has now become a blatant disregarding of the Constitution and the law by Sri Lanka’s politicians.
Contempt of the Constitution: Reaching the Zenith of Disregard for the Rule of Law
The 17th Amendment to Sri Lanka’s Constitution was unanimously passed in parliament in 2001 to prescribe a measure of independent supervision over important appointments in public service, as well as creating key independent commissions on the police, public service, judiciary and elections process. Hailed domestically and regionally as a creditable effort towards remedying a highly politicised police and public service, the 17th Amendment mandated a constitutional process of appointments to these commissions and offices through approval by an apolitical, 10-member Constitutional Council (CC).
The intervening authority of the CC was stipulated as an external check over what had earlier been unrestrained presidential fiat in the appointment process. The duty of making nominations to the CC of six persons of high integrity and standing was through a consensual process by the constituent political parties in parliament. The rest of the council comprised of the leader of the opposition, the prime minister and the Speaker of the House ex officio, with the president empowered to appoint a remaining member. Though the first CC came into being and proceeded thereafter to make recommendations towards appointments to various independent commissions, it was not long before the 17th Amendment was systematically deprived of its constitutional authority.
While the Elections Commission was not even established due to opposition raised by President Kumaranatunge to one of the nominees proposed by the CC for the position of chairman, the independent commission on police was hampered at every turn. Even more fundamentally, the CC itself was not constituted in its second term for well over a year, due to the deliberate inaction of the smaller political parties vested with the duty of agreeing on one remaining member. In turn, though the terms of office of the commissions on police, public service and judiciary, as well as the National Human Rights Commission, lapsed respectively in late 2005 and in 2006, new appointments could not be made due to the ongoing failure to constitute the CC.
Recently, Chandrika Kumaranatunge’s successor, President Mahinda Rajapakse has embarked on even more unconstitutional moves. Without first attempting to compel the smaller parties, one of which, in fact, remains closely allied with his own party, to come to a consensus on the remaining nominations to the CC or at the very minimum, making the appointments of the nominations already communicated to him), he has proceeded to make his direct appointments to the commissions, thus effectively voiding the vetting process vested in the CC.
Such actions, which directly violate the rule of law, are inevitable when politicians do not respect democratic norms, the constitution, or indeed the law and when neither the public nor the watchdogs of democracy – such as the media, activists and academics – have the will to protest. The collective inability of these forces to take the demand for respect for the Rule of Law to the people as opposed to cosy discussions in comfortable conference rooms, is well demonstrated in Sri Lanka now.
In that respect, the collective failure of Sri Lanka’s civil society and media to safeguard the independence of the courts as the last recourse of justice within the past one and a half decades has resulted in a costly loss of precious democratic freedoms. Indeed, the failure has created an ominous ripple effect, spreading to the undermining of the democratic process itself and grave public dissatisfaction.
The enduring lesson is that there can never be a durable peace in the northeast if governance processes and constitutional structures in the south are subverted. For this, a restoration of respect of the rule of law is essential. Sadly, such an objective seems beyond the reach of present reality.
* public interest lawyer, writer and media columnist. This paper is an expansion of earlier writings in ‘Focus on Rights’, The Sunday Times, April 23rd and 30th , 2006
Ed Note; The writer was lead counsel pro deo in the petition filed by Anthony Fernando a lay litigant whose sentence for contempt of court by Sri Lanka’s Supreme Court was declared in violation of ICCPR Article 9(1) by the United Nations Human Rights Committee (Communication No 1189/2003 – Adoption of Views by the United Nations Human Rights Committee – 31, March, 2005)
ENDNOTES
1 Senadheera Vs the Bribery Commissioner 63 NLR 313
2Queen vs Liyanage (1966) 68, NLR 265, The Bribery Commissioner Vs Ranasinghe [1964] 66 NLR 73
3Kodeeswaran Vs the Attorney General [1969] 72 NLR 337
4per Lord Pearce in Bribery Commissioner Vs Ranasinghe supra, note 2
5The Daily News 5th February 1981)
6The Island November 22 1996
7when a similar instance arose in 1989 upon then President J.R. Jayawardena refusing to appoint the seniormost judge of the Supreme Court R.S. Wanasundera as the Chief Justice following the retirement of the incumbent Chief Justice, S. Sharvananda in 1989, vocal protests were evidenced by the legal profession and others. Such protests were not manifested to that extent in 1999
8 the Report of the International Bar Association, 2001, Sri Lanka; Failing to Protect the Rule of Law and the Independence of the Judiciary).
9 E/CN.4/2003/65/Add.1 25, February 2003.
Posted on 2007-06-20
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