The decades-long subversive capture of the Constitutional State by agents of the Deep State in Sri Lanka



Kishali Pinto Jayawardene

Two extraordinary developments this week may be of interest to Sri Lanka watchers familiar with the decades-long subversive capture of the Constitutional State by agents of the Deep State.

Casting aspersions on judicial officers entrusted with ‘protest cases’

First, the Bar Association of Sri Lanka’s expression of strongly worded concern to the Chief Justice and the Attorney General this Friday, regarding ‘a concerted effort by certain parties’ to discredit the judiciary and the Bar by ‘falsely accusing judges and members of the legal profession of promoting violence,’ is significant.

Extraordinarily it was warned that ‘these elements,’ (unnamed as the Bar preferred to be the case apparently), had gone so far as to cast ‘aspersions on orders made by judicial officers in pending cases relating to protests.’The Bar has asked for these ‘unnamed elements’ to be dealt with for contempt of court in terms of Article 105 of the Constitution.

The Attorney General was also asked to prosecute any responsible for unlawful interference with the judiciary under Article 111C of the Constitution. There is, of course, an immediate and patent irony here.

As we may recall, an Opposition Member of Parliament was sent to jail for four years for committing contempt as a result of ad hoc comments loosely categorising ‘a majority’ of judges, lawyers in Sri Lanka as corrupt. He is still serving his term.

In contrast, how much more gravity attaches to aspersions cast by ‘unnamed elements’ on judicial officers weighing the right to protest and the right to speech and expression of citizens in the scales of public order? Judges, mainly of the subordinate courts, have been performing these functions in an impeccably proper manner during the past tumultuous weeks. Every ounce of judicial discretion and restraint has been called for, as the nation tipped over into chaos following unprovoked assaults of peaceful protestors by political goons.

The State as a complicit actor in the violence

Judicial interventions have prevented violence in some instances while full scale civil conflict in this country has been avoided in others. Most importantly, this has strengthened public confidence in the court system and the ability of both judges and lawyers to stand up to violations of the Constitution. That has been crucial as the political command (the Office of the President and the Office of the Prime Minister) not only abdicated its role in preventing the violence in the first instance but also became acutely complicit in the same.

So from what springs this need to ‘cast aspersions’ on judicial officers performing their role? Quite apart from contempt powers under Article 105, the historic import of Article 111C in making interference with the judiciary, an offence, speaks to precisely such a situation. That Article, in sub article (1) is to the effect that every judge, presiding officer, public officer or interalia, other persons entrusted by law with judicial powers or functions shall not be subjected to direction or other interference proceeding from ‘any other person’ other than interalia, a superior court.

Article 111C (2) says that any person who, without ‘legal authority’ interferes in the manner prohibited previously, may be punishable by the High Court on a jail term of one year, a fine as well as the imposition of civic disabilities. Its consequences are therefore as severe or even more so than an offence of contempt. Citizens of Sri Lanka would like to know exactly why the full and awful authority of the law has not been brought against these ‘elements’ attempting to coerce judicial officers? The Attorney General of Sri Lanka must answer to that question, no doubt.

What sanctity attaches to ‘unnamed elements’ casting aspersions on judges?

For if a Member of Parliament is punished by the law, along with critics and others accused of contempt at various times, what sanctity attaches to ‘unnamed elements’ violating the Constitution far more egregiously? Who is the protector of such ‘elements’? Put bluntly, warnings issued to judicial officers in regard to performing their judicial role underpins the culture of impunity, bolstered by military officers who President Gotabaya Rajapaksa has seen fit to appoint to offices across the civil administration spectrum.

We welcomed that military ‘capture’ of the State, eyes wide shut, as models of competency and discipline, soon to learn bitterly to the contrary. Even so, overt threats to judges handling ‘protest cases’ is another inglorious first in Sri Lanka’s post-independence judicial history. This follows close upon the disgraceful impeachment of a sitting Chief Justice akin to a common criminal during the second term of the Mahinda Rajapaksa Presidency (2013).

For those less acquainted with the travails of this nation’s judicial system, it must also be reminded that the Rajapaksas are not wholesale responsible for this state.

The deterioration of the judicial institution increased pace under the Chandrika Kumaratunga Presidency with the Office of the Chief Justice attracting deeply negative scrutiny by global judicial monitors including the International Bar Association (IBA). More recently, the Sirisena-Wickremesinghe regime abandoned a golden opportunity to restore the Constitutional State, preferring to play political power games with the 19th Amendment to the Constitution.

So when the current Prime Minister Ranil Wickremesinghe pronounces with a flourish to the international media that the present Government is responsible for Sri Lanka’s financial crisis, he is only partly right.

The Leviathan State in its most brutish form

The catalogue of misdeeds traceable to his leadership during 2015-2019 are long and horrific. Like all Sri Lankan politicians, this Prime Minister too is a veritable ostrich, burying his head in the sand. Granting that, Rajapaksa excesses have nevertheless, the air of nasty brutish power behind them, reflecting the Leviathan State in its most violent and negative form.

Anarchy in this case, is propelled by the State. That is again exemplified by the fact that days before the BASL missives, a letter by the Inspector General of Police (IGP) to the Secretary of the Public Security Ministry was strategically leaked to the media.

Outlining the disastrous breakdown of Sri Lanka’s policing command structures, the IGP informed that 120 police officers have been appointed as Officers-in-Charge of Police Stations without appearing for interviews. There is more to this. 3 officers who did appear at the interviews but were not recommended for promotion, had been appointed regardless and those who had been appointed to key stations (unsurprisingly) lacked experience.

These disclosures link up to questions being asked regarding the extent to which hidden subversive hands were behind the burning of Minsters’ houses, the attacks on politicians and property two weeks ago.

These questions will go unanswered as much as the failure to identify the ‘maha molakaru’ (mastermind) of the 2019 Easter Sunday blowing up of churches and hotels, carried out by ‘homegrown’ jihadists. All of these puzzles are tied up intricately with true skill, requiring the peeling away of many layers of a rotten onion as it were. We can only predict with certainty that assurances of justice for civilian victims by the chiefs of law enforcement, the state prosecutor’s department and ubiquitous Commissions of Inquiry will be in vain. Ministers and politicians will however be compensated.

Even now as the State retreats from its basic functions, these lessons of the Rule of Law have not been learnt. Blustering about, like ‘bulls in a china shop’ where the nation’s judiciary is concerned does not reflect well on a Government pleading with international lenders to obviate the consequences of a desperate bankruptcy.

This fate was brought upon the citizenry by a crooked, greedy and communally manipulative political command coupled with our profound inability to see the devil for what it is.

Rein in your club-wielding and letter-writing goons, this Government must be told in no uncertain terms.

Courtesy:Sunday Times