Kishali Pinto Jayawardene
Accountability in Sri Lanka was always about the working of the criminal law. And Justice was always about the clash of the ‘non-equals’ with the ‘more than equals.’ In that clash, seldom have the ‘non-equals’ triumphed in this country, as bitter lessons of our legal history so persistently teach us.
Refresher in institutional memory
Those who are appalled at the recent ruling of the Supreme Court preventing the arrest of ex-Navy Chief Wasantha Karannagoda in connection with an ongoing investigation into the abductions of children for ransom while the parents of the children stood helpless in Court, may therefore be gently nudged towards a refresher course in institutional memory.
As frequently reminded in these column spaces, meeting a constitutional challenge on separation of powers in asserting the Rule of Law and the primacy of the Constitution is one thing. Standing firm against cacophonous screeching in Court and outside, that national security trumps all, that military men are heroes who stand above the law, that those who ‘saved’ the country must be protected at whatever cost and that anyone who dissents from this view is a traitor, is an entirely different matter altogether. That is a crucial distinction by and of itself.
Never mind the fact that the brave men and women of this country’s military are disgraced collectively owing to the actions of a few or that the reputation of the service is besmirched due to the failure to properly wield the law against those who violate it. Technically, the prevention order by the Court is nothing very new.
Earlier, a similar order had been issued in a different case, preventing the arrest of former Secretary Ministry of Defence Gotabhaya Rajapaksa now being touted as a Presidential candidate at the forthcoming elections. But in case, the order itself fades in consequence when measured against what Karannagoda’s counsel was permitted to say in open Court without rebuttal, including casting aspersions on fellow officers and disparaging the state law office to wit.
Different strategies are needed
In these instances, impassioned appeals to the Court to listen to the pleas of grieving mothers will not suffice by themselves. A different strategy is needed, part of which must be to desist from adulation of the Court itself. Correction of a wrong done by an unprecedented constitutional misadventure on the part of a sitting President and a former President last year is a judicial response limited to an extraordinary factual scenario. Indeed, the violation was so blatant that it would have been difficult to think of an alternative interpretation of the constitutional provisions.
President Maithripala Sirisena played a risky political game at the egging of his legal advisors who had gambled on the United National Party and Speaker Karu Jayasuriya crumbling in the face of an audacious assault on constitutional propriety. That did not happen and the rest is history. But the law here in dispute was very clear (despite clumsily drafted provisions) and was bound to be upheld as such, if and when it went to the Court, which was indeed the case.
The point however is that to stretch that outcome beyond its confines and engage in indulgent dialogues that hero worships the Court is both unwise and counter productive. This minimises the considerable effort needed to restore institutional strength in Sri Lanka’s judiciary, in regard to which more than one or two good judgements are needed. And here again, the strength of an institution cannot rest purely on the conscience of a particular Chief Justice, as fortunate as the nation may have been during that time.
What was ‘normal’ at the time
Karannagoda was named as a suspect in an ongoing criminal investigation for possessing knowledge of the abduction, disappearance and subsequent killing of eleven Tamil, Sinhala and Muslim youths in and around Colombo more than a decade ago. To be clear, this was a racket driven at the highest levels of the security establishment with ransom demands from the family members of the abducted youngsters being the primary motive. The abductions spoke to the highest impunity that prevailed then.
It was ‘normal’ that blatant violations of the law could go unchecked. It was ‘normal’ that the incidents be hushed up and grieving parents would be left to only appeal to the Gods for redress. It was ‘normal’ that the police should turn a Nelsonian eye and that otherwise decent law abiding individuals should just shrug and turn away. As this country flirts with the return of those days, we should understand the enormity of what took place in front of us, as it were. During the last three years, incidents such as these have at least been brought to court, marking a difference from the past. But is that difference enough if the guilty goes unpunished?
These are apt discussions in the backdrop of the 40th session of the United Nations Human Rights Council (UNHRC) even as Sri Lanka affirms ‘its strongest commitment to the promotion and protection of human rights, in keeping with international human rights standards and Sri Lanka’s international obligations.’ The issue is not about Commissions and Offices looking into ‘missing persons.’ We should not waste energy combating Ministers representing the State routinely prevaricating, obfuscating and lying at the UNHRC.
Rather, single minded collective determination is called for in regard to documenting and discussing systemic and institutional failures shielding the ‘more than equals’and bringing them to the court of public opinion so that courts of law in this country may awaken anew to their own onerous responsibilities. This is not only, I may add, in relation to injustice perpetuated against victims of Tamil ethnicity.
A cursory look at reports of Commissions of Inquiry in the nineteen nineties setting out in painful detail, the protection of ‘more than equal’ politicians, military men and policemen responsible for the torture, enforced disappearances and extra judicial executions of Sinhala, Tamil and Muslim civilians would establish this fact. That was under a different Government and in a different time. Yet the patterns of impunity remain largely the same, Rajapaksas or no Rajapaksas.
Refraining from indulgent dialogues on the judiciary
So this easy talk of ‘restoration of judicial independence in Sri Lanka’ post December 2018 is to commit the same mistake made by some in early 2015 when ‘Chief Justice’ Mohan Peiris was dismissed summarily from his post through presidential letter. The world was told that the Rajapaksas had departed and that, miraculously therefore, the institution of the judiciary had ‘become independent again.’
At the time, this reminded me of the exuberant declaration of the Minister of Justice of Cambodia, when accepting a financial grant by the United Nations to bring judicial reforms in that country following the genocide of the PolPot era, said ‘with one stroke of the pen, I shall make my country’s judges, independent.’ As tinged with deadly humour as both examples are, it must be said that the historical degeneration of the institution of the judiciary is not an evil that could be remedied so easily.
At least now, we must refrain from indulgent dialogues that refuse to recognise this fact.