Kishali Pinto Jayawardene
In retrospect, one of the greatest missed opportunities of the now doomed Sirisena-Wickremesinghe Unity Government was its failure to grab Sri Lanka’s legal system by its ears (metaphorically speaking), cleanse the Bench of corrupt and politically compromised judges against whom files were stacked up aplenty and demonstrate the power of criminal justice reforms for human rights abuses and corruption to all citizens alike through the length and breadth of the country.
A wretched reflection in uncertain times
If conceptualized properly and implemented vigorously with the full might of a political leadership in which the people had placed enormous trust in 2015, this could have formed the lynch pin of a powerful reconciliation strategy, uniting Sinhala, Tamil, Muslim and other communities. In this, it cannot even be said that we tried and failed. Instead, it is manifest that we never tried at all. That is a wretched reflection indeed as we head into menacingly uncertain times.
If that strategy had been employed, it would have deprived diaspora propagandists hankering for Eelam while living in comfort in Western climes of much of their hysteria while having an equally neutralizing impact on their Sinhalese counterparts spewing hate in the country, some of them disguised as monks in what must surely be the greatest insult to the Gautama Buddha. By using the law as an instrument for communities across the ethnic line, it would have taken away a major rallying call for the Rajapaksa rump at the time.
Most importantly, Sri Lanka’s poor, marginalized and conflict-affected would have witnessed the fact that long decades of the law being employed as an instrument of oppression were being changed. On its part, the judiciary would also have had to acknowledge key systemic failings which have now led to a bitter national debate on the nature of the judicial institution. In its present form, that debate is cantankerous and disjointed, endlessly revolving around the ridiculous flapping of hands by the Bar over contempt charges leveled against politicians and lawyers who critique judges. Sri Lanka still lacks a Contempt of Court law allowing judges to do what they want, as was best illustrated during the time of ex-Chief Justice Sarath Silva when contempt was wielded against all and sundry and an English teacher was sent to jail for one year for ‘daring to’ speak loudly in the Supreme Court.
Paucity of the national debate on the judiciary
But all this is quite mundane and very different to the searchingly pointed questions that are currently galvanizing India’s legal community, also confronted by a crisis of public confidence in its judiciary. Across the Palk Strait, Indian advocates and judges are looking inwards and embarking on rigorous self-examination with unprecedented happenings such as Supreme Court judges giving press conferences on the political manipulation of the judicial institution. These are familiar issues to us, increasingly so since 1999 when the Office of the Chief Justice during the Kumaratunge Presidency, faced similar allegations.
If Sri Lanka’s Bar Association has spearheaded a similarly effective critique of the country’s legal system without being a stamp for the National Unity Government to the extent that it loudly justified the removal of a Chief Justice through the hazardous tactic of a Presidential letter, the perils that we face now may have been lessened. And the ‘capturing’ of the Bar by a Rajapaksa-friendly faction (as is alleged) in later years may well have been avoided. Apart from being blind and deaf to cleansing the judicial process by taking action against politically compromised and corrupt judges using prescribed constitutional measures, even those emblematic cases of conflict related human rights abuses were left to wilt by the wayside.
Looking into two of those cases, namely the killing of seventeen Muslim and Tamil humanitarian aid workers in Mutur and the killing of five youth in Trincomalee both in 2006, the Udalagama Commission of Inquiry categorized the investigations conducted by the local police as well as the Criminal Investigation Department as being ‘incomplete and superficial’. In the report tabled in Parliament by Prime Minister Ranil Wickremesinghe in 2015, it is pointed out that where the Trincomalee killings were concerned, ‘there are strong grounds to surmise the involvement of uniformed personnel in the commission of this crime.’
Difficult questions and impossible answers
But instead of closure in such cases, we had to endure the superficialities of a four pronged transitional justice ‘package’ presented with a flourish to a deeply gullible international community. The ‘doable’ components of that package, namely the search for missing persons and reparations are at last, under way. But even with all good intentions, to what extent is the political environment conducive to an actual change in a way that addresses needs of the victims? After all, we have had inquiries into missing persons and reparations under different names before. This is a difficult question no doubt.
Meanwhile the anti-corruption struggle ran quickly aground on the treacherous shoals of both leaders of the Unity Government putting their party political priorities over the national interest. Three years later the implosion within the National Unity Government has resulted in some sins coming to light, albeit hesitatingly. Parliamentary approval earlier this month for an amendment to the Judicature Act established a Permanent High Court at Bar comprising three Judges sitting together nominated by the Chief Justice from among the Judges of the High Court.
Under its provisions, the Attorney General or the Director General of the Commission to Investigate Allegations of Bribery or Corruption may refer information relating to the offences to the Chief Justice for a direction whether criminal proceedings shall be instituted in the Permanent High Court at Bar. Relevant factors taken into account include the nature and circumstances, the gravity, the complexity, the impact on the victim and the impact on the State. Will this mechanism address the timorously tiptoeing around crucial issues of State accountability where bribery and corruption are concerned which is more a question of political chicanery than the law itself? We need to wait and see.
Entertainment galore for Sri Lankans
But for the moment, we have President Maithripala Sirisena firing from all cylinders on national platforms as to how he was betrayed by his coalition partner while Prime Minister Ranil Wickremesinghe’s stoic silence in response fails to cover a multitude of sins committed by the party under his leadership, first among which is the Central Bank Treasury bond fiasco. As politicians parade before the public, some swearing by their mothers that they did not get money from ‘Aloysius’, nonsensical excuses by those caught out in being funded by ‘Aloysius’ confound the imagination, so to speak.
At least, there is entertainment galore even if nothing else. Perhaps that may be cheer enough as the country flounders in a right royal mess, not of the people’s making.