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The Laws We Have Now Dont Work Because of the “Collectively Gross Deceit of Human Beings who Apply and Implement the Law”


Kishali Pinto Jayawardene

There is a distinct commonality between corruption investigations and inquiries into grave human rights abuses in Sri Lanka, apart from ordinary Rule of Law dysfunctions.

That is the amazing chutzpah with which performers engage in the same evasive dance while at the same time, propagating the myth that the law, as it currently stands, is somehow lacking in significant respects. Nothing could be farther from the truth.

Setting the ‘bar’ abysmally low

Though we may applaud legal reforms that more clearly define parameters of state accountability, the fact of the matter is that the legal tools for enforcing this are/were more than adequate even prior to law reforms.

Why the law does not work is not because of the law itself per se. Rather, it is because of the collectively gross deceit of human beings who apply and implement the law.

That evidence stares at us in the less than prepossessing examples of those, who despite being notionally aware of the law, lie through their teeth to gain political advantages. In that list is included none other than a Professor of Law and numerous ‘President’s Counsel,’ some in the garb of woefully non-performing Ministers no less.

Now, as more instructing attorneys join these ranks, we will doubtless have greater confusion ahead with the propagation of even wilder theories on what the law and the Constitution means. With the ‘bar’ set so low however, it is difficult to imagine as to how worse it could conceivably get.

In that regard, the Justice Minister’s recent effort to introduce law as a subject in school curricula, though laudatory by itself, is a double edged sword. Even as children learn about the law in theory, they will see the law being violated before their eyes time and time again, just one example being when politicians go berserk on the floor of the House as one advertisement on national television excellently depicts. That in turn will endanger contempt for the law and for the lofty values that it purports to uphold.

Judiciary needs to build on recent gains

So to return to the games that are played in regard to the law, these are evasions that go beyond endemic laws’ delays and so on. Routine legal dysfunctions remain to be addressed, of course. For as much as the judges of the superior courts and brave magistrates must be applauded for upholding constitutional values during the past three months of unprecedented crisis when a President decided to throw caution and the Constitution to the four winds, systemic faults afflicting Sri Lanka’s judicial and legal institutions still remain.

The Supreme Court needs to build on the trust won from the public through its strength in standing apart from unprecedented political turmoil rather than rest on its ‘judicial laurels’ as it were. It must demonstrate its will to safeguard the protection of life and liberties of citizens during the mundane everyday ‘life’ of the Bench and in the working of the constitutional document when ordinary citizens appear before it, pleading for relief without television cameras following them around. This is perhaps far more difficult in the dogged commitment that it requires than responding to an unprecedented political crisis.

And as much as the cry of a solitary ‘koha’ does not, the Avurudu season make, one exemplar judgment or two does not ‘restore’ the independence of a Court tarnished by perversions of ambition visited upon it, most cruelly, from within its own ranks by politically compromised judges. The jurisprudence of rights protection that was strongly asserted by the Court in the mid nineteen-nineties must be returned to, consistently and determinedly. Rule of Law standards reining in badly behaving politicians, abusive and corrupt state officials must be re-emphasised.

Tired games of state accountability

Indeed, the Bar Association of Sri Lanka might have engaged in a far more credible effort under its various Presidencies since 2015 without falling prey to political agendas. While the Bar’s statement this week against an obnoxious parliamentarian casting aspersions on the ‘faith’ of judges using privilege as a cover has been exceptionally and rightfully strong, its interventions should not stop at statements. The Bar has a greater duty to engage the public in a continuing dialogue regarding the dangers of inflammatory political rhetoric rousing religious and communal hatred. That it has not done so far.

But that apart, the stalemates that we see now (despite some hard won victories) in investigating grave crimes and corruption speak to a cynical misleading of the public that go over and beyond ordinary problems with the legal system. Observers with a jaundiced eye would probably exclaim that the process is somewhat like watching a hyper-active household pet chase its own tail, over and over again. It is entertaining for a while but if repeated too often, becomes less and less engaging. Pets are at least beguiling and given their singular charm, can be forgiven a great deal. But when the same tired games are played in the case of state accountability, the gods must be invoked in all their fury.

Following the January 2015 election results, Sri Lankans were diverted for a while by cacophonous cries that massive financial frauds of the Rajapaksa regime were being investigated with teams being sent overseas to ‘bring the money back.’ All that dwindled to rhetoric when the investigators returned empty handed with a shamefaced admission that these were highly complex financial crimes that needed time to be sorted. Time passed but nothing further was evidenced. Then a veritable circus was put on show with Presidential Commissions of Inquiry engaging in daily sittings with various sordid financial disclosures being put into the public domain but yet, no proper moving of the criminal law apart from a few public relations exercises.

The problem is not with the law, per se

Now we have President Maithripala Sirisena complaining that amendments to the Commissions of Inquiry (COI) Act enabling the Bribery and Corruption Commission to use evidentiary material in these COI reports to file indictments against those implicated had been delayed in Parliament. The President had used this as yet another whip to flay his coalition partner-at-odds, the United National Party struggling to rid itself of the Central Bank treasury bond taint.

But truly, will these amendments be the miraculous panacea that will help heal the country’s festering wounds? I think not. While the amendments now fixed for debate in the House are no doubt, positive in themselves, that will not suffice. Similar amendments were brought vesting such powers in the Attorney General several years ago on the basis that the Attorney General’s hand would be strengthened in addressing grave human rights violations. But that did not result in any noticeable improvement in the record of the state law officer.

The problem, to repeat, is not with the law per se. Let us be honest enough to admit that.

Courtesy:Daily Mirror