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Reneging of Public Duties in Upholding the Rule of Law by Official and Unofficial Bar

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by Kishali Pinto Jayawardene

Protesting Muslims who thronged Colombo’s streets demanding public attention in regard to the plight of their community in Mannar are as much a part of the democratic process as lawyers protesting against the attack on a court house in Mannar and the Judicial Service Association abstaining from sittings in protest against the attacks on the Mannar magistrate cum District Judge.

Recent protest in Jaffna regarding the plight of Muslims in Mannar-pic: TamilWin

There is little to be perturbed about in such protests. To take a contrary view would be to deny these protestors, the freedoms of assembly and association which are constitutionally guaranteed rights.

Proper remedies against contested orders

Certainly enormous tensions had been evidenced not only in Mannar but in other area of the East where both Tamils and Muslims fleeing the conflict in the North or (as the Muslims were) summarily ejected by the Liberation Tigers of Tamil Eelam during what can only be termed as the ethnic cleansing of the North, have been ‘temporarily’ relocated, leading to dangerously escalated resentment by the local communities who see their lands and livelihoods being affected on a ‘permanent’ level.

In the case of Manner and the dispute between the local fisherfolk and the relocated outsiders, these tensions came to a flash point recently, converging quite unfortunately on a particular judicial order which though perfectly fair in its substance, was visited by a mob response. There is after all, a time-honoured remedy for challenging a judicial order; namely, having it set aside in appeal.

If there was bias or partiality on the part of an officer of a subordinate court towards a particular party in a case, there is the remedy of petitioning the Judicial Service Commission. Ordinary realities being such, such a complaint would have caused more than a ripple in the waters as differentiated from the ordinary run of complaints wending their painfully slow path to inquiry. However, these were not the remedies resorted to. On the contrary, we had a mob throwing stones at a court house and attacking the chambers of a judge.

Craven leadership of the Bar

Amidst the welter of allegations surrounding this incident, the judicial officer concerned has unequivocally stated on record that he had been threatened by a government minister. It is basic commonsense to acknowledge that a judicial officer of the subordinate courts (being Tamil in ethnicity in addition) would not have resorted to such a complaint against a minister if the circumstances were not such as to leave no other course of action open to him.

Official records indicate that phone calls had taken place from this minister’s phone to the judicial officer concerned. Of course, this may well have been to engage in a friendly chat regarding the excellent quality of prawns available at that time of the year in Mannar but the possibility of that conversation is rather remote to say the least.

Circumstantially moreover, the attack on the court house is hedged around by too many factors indicating that the mob did not act on its own in engaging in such actions that would have normally led to severe penalties if there was no assurance of immunity given by the instigating politicians. These assurances, as we can see now, are fully justified in actual fact which is a point that we would return to later.

So in that context, the filing of contempt of court charges against the minister concerned in the Court of Appeal this week is a salutary step. The immediate question that arises however is as to why the petition on contempt of court was not filed by the President and the leadership of the Bar Association?

The reasons for such abstention may be an open secret on Hulftsdorp Hill but it is nonetheless a shameful reflection on those who should have been expected to take the lead. To take refuge in procrastination and prevarication in such a grave matter is to invite greater disasters in store for the Bench as well as the Bar. It is as if the executive is being issued an open invitation to do what it wills with the country’s judiciary. If that is the craven message that is intended to be given by the Bar Association of Sri Lanka, so be it.

Presidential assurances not sufficient

As observed in these column spaces last week, the very fact that such an incident took place indicates the enormous deterioration in the political environment vis a vis the judiciary. Although the attack on the Mannar court house took place more than a week ago, the suspects have still not been identified despite the mantra of ‘ongoing investigations’. This was predictable.

Also as predicted in last week’s column, it was to be expected that the government would trot out its old refrain of attacks on the judiciary during the time of the United National Party in the eighties. It is unfortunate however that none other than President Mahinda Rajapaksa himself thought it appropriate to refer to these past incidents as if doing so would make the current attack on the independence of Sri Lanka’s judiciary, less serious.

It is quite beside the point to be ‘saddened’ or ‘regretful’ in regard to the suspicions entertained by the country’s legal community ‘against a minister of his government’, as the President has reportedly said early this week. Sadness or regret is not the core issue.

Neither are Presidential pronouncements on the Rule of Law and the determination of this government to ensure that the law is followed, also informed to the country at large at this meeting. And quite frankly, one cannot make any sense of the statement further attributed to the President that he is a lawyer and that ‘lawyers work cordially with the judiciary.’

Whatever it may be, Presidential statements at public meetings do not meet the need for swift action to be taken against the perpetrators of this attack on a court house and on the chambers of a judge. The fact that this Presidency is not inclined to engage in such action appears however to be abundantly clear.

Equal parts of skepticism and mockery

That said, political commentators last week advanced the argument that protests by the legal and judicial fraternity over the Mannar incident will not evoke much public sympathy given the general silence on the part of the same when basic rights of innocent people from North to South were trampled upon by this government. Certainly, there will be empathy from many quarters with this bitterly articulated point of view.

The reneging of their public duties in upholding the Rule of Law was never more evidenced on the part of the official and unofficial Bar than during these unhappy times.

Some days ago, we saw a newly appointed Attorney General affirming blithely that the fact that the Department of the Attorney General comes under the Presidential Secretariat will not ‘affect their duties’ in any way. Such blithe assurances fall upon an unbelieving public ear given ample testimony in the past years of politicized prosecutions as well as the politicized withdrawal of prosecutions under this administration.

As much as grandiloquent Presidential pronouncements on the Rule of Law are to be scoffed at, these assertions also invoke equal parts of skepticism and mockery in the face of practical evidence to the contrary.

That said and conceding all the faults of the legal community in this country and of the leadership of the Bar (official and unofficial), if public support is not forthcoming on the larger question of pulling back from the brink even at this late stage in the wake of the attack on the Manner courts, then the consequences can only be disastrous for the country as a whole. This must be clearly acknowledged. courtesy: Sunday Times

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