Kishali Pinto Jayawardene
When irrepressible British satirist, soldier and spy Malcolm Muggeridge said, ‘never to forget that only dead fish swim with the stream’, that warning beautifully underscored the tediousness of drifting in comforting safe shallows without challenging the odds in deeper waters.
A woman who challenged the odds
This week, the jail term of six months and fine imposed by the Homagama Magistrate’s Court on General Secretary of Bodu Bala Sena, Galagodaththe Gnanasara for threatening and intimidating the wife of missing journalist Prageeth Ekneligoda, Sandhya in open court and during the hearing of a habeas corpus inquiry more than two years ago, had significant repercussions beyond that individual case.
This was an instance where an individual who had no connection to an ongoing inquiry, hijacked the proceedings, threatened and lectured a party in open court, abusing her in filthy language while also abusing state lawyers in the process. His ‘defence’, if one can call it that, was that he was emotionally overwrought by the sacrifices rendered by the armed forces during the war. Ekneligoda’s disappearance implicated military intelligence officials and the inquiry is still ongoing.
Retribution would have been swift and harsh if any ordinary person had dared to indulge in such extraordinarily thuggish behavior. In this case, justice took a little more than two years to be served but it was, in fact, served. Indeed, even though this legal proceeding was not of a contempt of court nature, the ruling and subsequent jail term legitimately asserted the authority of the judiciary in a country where that term (used interchangeably with contempt of court) has been twisted entirely out of its ordinary meaning. Rather than be utilized to safeguard the integrity of the judicial institution and uphold its standards for improvement, this legal tactic has been employed as a lever to subdue critiques of judicial action and suppress public discussions of the same.
Witnessing a shameful sight
Certainly, the sitting magistrate who disallowed attempt so create even more chaos in the court room, the magistrate before whom these atrocious happenings took place and who appeared as a witness in the case along with state lawyers, must be commended on their fortitude in refusing to step back in the face of extra-judicial coercion. Meanwhile the sight of companion monks of the offender, chanting pirith as he was escorted by police officers into the prison van, made for a shameful sight. The fact that a woman challenged violent behavior of this sort which had been aimed on different occasions, against different persons including journalists, despite personal threats of the vile and vicious kind, is no ordinary feat. That must be recognized, without a doubt as the courage of someone who went ‘against the stream.’
But the larger question relates to the importance of the legal remedy that was sought to be exercised by Sandhya Ekneligoda in the first place. This was no ordinary traffic violation inquiry. The remedy of habeas corpus remains one of the most important constitutional safeguards for citizens even though it has slipped into virtual obscurity. In this instance, where the proceedings of a court of law were rudely disturbed by a monk, it was the Court of Appeal which had directed that a magisterial inquiry be held into the case.
This is the common practice on habeas corpus applications even though, as a study critically examining more than 880 habeas corpus decisions from pre-independence to 2009 (Habeas Corpus in Sri Lanka; Theory and Practice of the Great Writ in Extraordinary Times, Pinto-Jayawardena and de Almeida Guneratne, 2011, Colombo) found that many had resulted in dismissals, some for technicalities such as the wrong naming of a respondent in an application.
Giving force to the habeas remedy
In this at least, there was judicial uniformity across the divide of Sinhala, Tamil and Muslim petitioners, offset only by some remarkably good decisions of the Court, which standards were not adhered to in later years. And when conflict in Sri Lanka aggravated, the habeas corpus remedy became limited to the paper on which the Constitution and statutes giving that power concurrently to the High Courts, was printed.
I recall a conversation with a High Court judge when discussing that study, during which the judge himself expressed apprehension as to whether he too, would be disappeared after he issued summons on the then Defence Secretary and former President Mahinda Rajapaksa’s brother, in a habeas corpus application of several disappeared persons listed before him. That sentiment would have been funny if not for the very real fears that compelled that remark at the time.
Restoring constitutional and statutory remedies such as habeas corpus to a semblance of normalcy should have been the first priority of the new Government in 2015, which process should have been initiated by the Bar Association. In fact, legal advocates had been pressing for a Habeas Corpus Act that would reflect good jurisprudential principles already articulated by the appeal courts. This included making it mandatory that when a disappearance of a person occurs in official custody, state officials are not able to shift responsibility to each other. Also as a matter of general practice, petitioners being absent and unrepresented (most often due to threats or intimidation) should not result in automatic dismissal of the application which happens more often than it should.
The Rule of Law, no more, no less
In that context and on top of that considerable dysfunction, the havoc rendered by rampaging monks in courtrooms hearing these habeas corpus inquiries, results in a dysfunctional remedy being reduced to an outright joke. The deterrent action taken by the Homagama Magistrate’s Court is therefore worthy of more than ordinary note.
But does it take extreme action of such kind indulged in by this offending monk on that day, to finally rein him in? Is the law selective in the manner in which it is wielded against some and not against others unless and until severe provocation occurs? Does Article 9 of the Constitution which gives Buddhism the foremost place in Sri Lanka mandate that the Republic should shield abusive monks from the due and proper functioning of the law that is so promptly brought into action against others?
These are questions that are opportune as the monk-offender in issue faces charges in other courts that are perpetually postponed, of racist and inflammatory behavior. The Constitution recognizes no such special privilege where the law is violated. That is equally true of a proselytizing Christian priest using money to convert the poor or a fundamentalist Muslim cleric calling down hell and damnation on women who do not conform to archaic religious beliefs.
For those who are still uncertain, that is what is meant by the phrase, the Rule of Law, no more and no less.