When will the country’s lawyers, judges and members of the clergy be held to account for the devastation of the Rule of Law and reducing Sri Lanka to the status of a beggar state in South Asia?

By

Kishali Pinto Jayawardene

Even at the brink, if not firmly in the abyss of moral, legal and financial bankruptcy as a nation, Sri Lanka’s vicious peddlars of racial and communal hatred continue unabated with their grisly mischief.

Grim comedy and Animal Farm charades

This week, utter confusion reigned in regard to the reinstatement (or not) of a Muslim medical professional accused of forced sterilisation in 2019. We may recall that no evidence existed then or surfaced later, to substantiate that allegation. Indeed some women who brought the charges against him, conceived children later in what appeared to be miraculous births. Fast forward to modern day events in 2021 forcibly reminiscent of the Orwellian satire of Animal Farm.

That grim comedy which the embedding of totalitarianism in the entrails of the Government gives rise to were reflected in unpleasant detail. First, the Secretary to the Ministry of Health formally called for Dr Shafi Shihabdeen to be reinstated at the Kurunegala Teaching Hospital and for arrears of salary to be paid. Close upon that announcement, a blare of racist publicity followed with agitators, some clad in the garb of clergy, hunting for blood.

Then came a hasty rectification by the Ministry that his reinstatement had not been ordered, coupled with a reported disclaimer by the Public Service Commission.

In this bewildering whirl of reports and counter reports, one fact stood out; when a man or a woman is accused of a crime, the very least that can be expected is that he or she should know what the accusation is, with certainty.

Even as he ponders if he has been reinstated or not as the case may be, can the manifestly unfortunate Dr Shihabdeen claim that he has had the benefit of that most fundamental principle of criminal justice even two years after this allegation was leveled against him?

A travesty of justice

Is this not a question that should bother learned judges, black coated lawyers and their acolytes as they troop to court to solemnly participate in the rituals of the legal process? For what is the very point of having courts of law if a travesty of justice can take place so unashamedly, so boldly? And does this same lacuane not bedevil the arrest of Ahnaf Jazeem detained for more than a year on the purported basis that his poems promoted extremism in children? Correct translations of his writings revealed that he had, in fact, objected to Islamist fundamentalism.

The fact that Jazeem was given bail a few days ago does not detract from th at question. It is not a great stroke of magnanimity that the Attorney General decided not to object to bail being given, let us be clear. Already a life had been destroyed, these are the compulsions that push the minorities to extremism. Have we not learnt that bitter lesson already?

And what of the third limb of this triangle of injustice, lawyer Hejaaz Hisbullah who remains imprisoned on charges that he aided and abetted the2019 Easter Sunday jihadist attacks on churches and hotels?

This is despite the evidence relying mainly on the testimony of witnesses who claim they had been coerced. Hizbullah was afforded the opportunity to consult with his lawyers confidentially which had to be fought for in court as if that was a privilege instead of a basic right.

Meanwhile, completing these manifestly ludicrous Animal Farm charades, we have Sri Lanka’s Defence Secretary defending the head of the intelligence services under fire by Roman Catholic clergy for instigating the Easter Sunday attacks by saying that he ‘cannot be an extremist’ as he is ‘married to a Sinhala Buddhist and his children are Sinhalese.’ Is there a more ridiculous explanation of extremism that we can think of?

Forthright critique of state policy needed

This infantile rendering is dangerous as it is not confined to the mutterings of a nutjob. Instead that is articulated at the highest levels of state leadership. That should surely compel a forthright critique of what passes for policy in the name of countering extremism in Sri Lanka. It does not suffice that a few detainees kept under the Prevention of Terrorism Act (PTA) are released on bail as ifagain, this is some marvellous benefit conferred on the victims. What must take place is a systemic overhaul of the PTA, not a superficial adjustment here or a tweak there.

Military officers and police officers exercise extensive powers in relation to arrests and detentions and reasons for arrest need not be given. Detention is not subjected to effective judicial control with administrative or preventive detention being the norm. All these provisions must be reversed. The opportunity to effect clinical surgery of the PTA was during the ‘yahapalanaya’ period (2015-2019). But that chance was missed with a grandiose idea of a Counter Terrorism Act.

This CTA draft replicated all the grave flaws of counter terror laws in the West complete to a shade with typically overbroad offences. That was not the solution.

Unsurprisingly, that effort was abandoned in the wake of public outrage at the time. But in purusing that path, the PTA remained with all its terrible laxities on our statute books. Now, as predictable, this is being used, along with other laws such as the utterly mis-named International Covenant on Civil and Political Rights Act (2007) at the whim and fancy of the State against whoever manages to catch its gaze at a particular point of time.

No compensation can remedy the trauma of destroyed lives

Where Dr Shihabdeen is concerned, reinstatement or not, nothing will compensate for the damage done by a brutal media trial, where his reputation and the financial health and mental well being of his family were irreparably affected. Who will compensate for all of that trauma as a result of human beings cast as sacrificial lamb for political and communal power games? In the American civil rights classic, ‘To Kill A Mockingbird,’ Atticus Finch explains a powerful lesson to his daughter who is hurt at the abuse he endures when defending a black man accused of raping a young white woman.

He reminds her that ‘the one thing that does not abide by majority rule is a person’s conscience.’ But what of those who do not have any conscience? Those who have colluded with the political establishment to strip away even the vestiges of dignity from constitutional justice?

Accordingly we find ourselves constrained to ask, when will the country’s lawyers, judges, members of the clergy notwithstanding, be held to account for the devastation of the Rule of Law, for reducing Sri Lanka to the status of a beggar state in South Asia? It is the nation’s educated that is most responsible thereto.

That is the primary question confronting the nation.

Courtesy:Sunday Times