Continuing the fight beyond the

presidential election

Sunday, December 07, 2014

As in the case of the entrance to the Underworld in Dantes Inferno, the practice of the
law in Sri Lanka should ideally have a warning sign stating abandon hope, all ye who
enter here. In particular, and only slightly in jest, such a warning should be issued to
hopeful new entrants in this day and age who don their black coats for the first time
with feelings of trepidation as they tiptoe gingerly to take their oaths as attorneys
before the Supreme Court.
Reaching a perilous stage
What pray, is the point of learning the law with such effort if a brutish political system
bends justice to its own will, if judges are brought into line with the dictates of the

President downwards to a petty pradeshiya sabha member and still more disgracefully,
if judges themselves collude with politicians?
These are dark but entirely appropriate thoughts as the decline in the judicial
institution takes centre stage in the ongoing Presidential election campaigns. This
week, incumbent of the Kotte Nagaviharaya and campaigner for a just society in Sri
Lanka, Ven. Maduluwawe Sobitha Thera pronounced in rightful outrage that
appointments to the judiciary include those implicated in the taking of bribes, rapists
and worse. Undoubtedly we have reached a perilous stage under the Rajapaksa
Presidency, leaving judges who still struggle to serve honourably in office, helpless
and frustrated beyond measure.
That said, when former President Chandrika Kumaratunga expounds on the
importance of an independent judiciary from the opposition stage, she must not think
that the Sri Lankan populace is listening without reserve. Granted, the deterioration in
the institution of the judiciary under the Rajapaksa Presidency is infinitely worse than
under any predecessor regime. But previous administrations of the United Peoples
Freedom Alliance (UPFA) and the United National Party (UNP) cannot blandly profess
innocence thereto. We are not talking here of historical failures decades back, of which
there are several, but rather, of relatively recent events. The point is that, once the
decline is set in motion, it is inevitable that worse would follow.
Celebrating the halcyon days
Indeed it was under Kumaratunga that most was expected. In 1994, (as in 2014), the
forces of change were premised on good governance. The Supreme Court was itself
venturing into new territory as it cautiously freed itself from the heavy shackles of
previous Presidencies. By 1994, the Court had begun to take a firmer stand on
democratic governance, (Premachandra v Jayawickreme, 1993) where the
appointment of a Chief Minister by a Governor was determined to be subject to
independent judicial review.
In the first flush of that promising change, the fundamental rights jurisprudence of the

late MDH Fernando, the late ARB Amerasinghe, the late AS Wijetunga and others in
the GPS de Silva Court blossomed to the extent that it almost rivaled pioneering
efforts of the Indian Supreme Court across the Palk Strait. At that time, the words
human rights were not politically loaded terms and simply meant the protection of
peoples rights. Foremost in urging the reasoned expansion of constitutional
safeguards before the Court was senior advocate, late RKW Goonesekere whose
graceful declining to accept silk at the Presidential hand was testimony to the
standard and stature of counsel at that time. His demise some weeks ago signifies the
end of an era which, warts and all, was infinitely richer than what Sri Lanka could hope
to see in the future.
Indeed for those of us working in his chambers in the mid 1990s, those were truly
halcyon days. The Grecian ancients described the halcyon as a legendary bird which
had the power to calm the seas while nesting over her eggs. Its popular use has now
evolved to mean days of endless sun, hope and optimism. The use of such
phraseology to denote practice in the law during that period is most apt even as we
saw the theoretical concept of an independent judiciary beginning to acquire
intoxicatingly powerful and practical force.
A precipitous slide into decline
Yet as the Court asserted itself, judges were attacked by Ministers taking refuge under
parliamentary privilege. Kumaratungas appointment of former Attorney General
Sarath Silva as Chief Justice in 1999 and the consequent controversies that beset the
office of the Chief Justice set the seal on a precipitous slide into decline. Meanwhile
dissenting voices which had been previously agitating for an independent judiciary
during the Jayawardene and Premadasaa Presidencies strangely lapsed into silence
during this period.
Today as Kumaratunga laments the political capture of Sri Lankan Chief Justices, she
may, as much as others have done, apologise to the nation if she possesses the
humility to do so.

Neither can Ranil Wickremesinghes short-lived United National Front (UNF, 20012004) government shrug off blame. The UNF put the issue of judicial independence
into the forefront of its campaign. Yet after being elected into government, it was
unforgivably deluded by party lawyers who were more concerned with safeguarding
their own practices into thinking that it too could bypass the paramount need for a
Chief Justice who, like Ceasers wife, would not only be above suspicion but seen to
be above suspicion as well. This spectacularly misjudged assessment ultimately led to
its downfall.
A warning for the Government and the Opposition
In sum, even while condemning the ruinous record of the Rajapaksa Presidency in no
uncertain terms, we are justified in being skeptical of what is promised on opposition
platforms. In that sense, common opposition candidate Maithripala Sirisena still needs
to project himself beyond platitudes on good governance and indeed beyond the dual
personas of a former UPFA President and a former UNP Prime Minister to articulate
an individually strong message to the electorate. It is to be hoped that this will be seen
in the following weeks.
And as far as the citizenry is concerned, there is good sense in the caution issued by
Ven. Maduluwawe Sobitha Thera that critical public pressure will not cease come
January 2015. Instead, the fight will continue with un-abating vigour. Certainly this is a
reminder that both the Government and the Opposition would do well to take heed of.
Posted by Thavam