Sri Lanka: Serious Deficit of the Rule of Law

Sri Lanka: Serious deficit of the rule of law due to actions of men most learned in the law

Keynote address delivered at the Annual General Meeting (AGM) of the Citizens Movement for Good Governance (CIMOGG) -- June 29 2011 by Kishali Pinto-Jayawardena, Attorney at Law, Media Columnist and Author.

Introductory Comments

Mr Chair, members of CIMOGG and friends: when Dr A.C. Visvalingam initially spoke to me in regard to delivering the keynote address on this occasion, my first reaction was to decline. This was based purely on the perception that speaking of the Rule of Law in Sri Lanka today would be immeasurably futile.

But I was compelled to change my mind not only as a result of the considerably effective persuasion of Dr Visvalingam but when considering not only the primary objectives of CIMOGG but also its undoubted achievements during a relatively short term of existence.

Let me look at the primary objective No 1 of CIMOG which is – and I quote 'To mobilise Sri Lankans for the purpose of building a truly democratic society in which the sovereign will of the people is respected and all citizens live in harmony with each other, united in their diversity, under the Rule of Law, and in which all public office is held in trust for the People;'

In my mind, the two most important elements of this Primary Objective No 1 are first, its emphasis on the Rule of Law and second, its reminder that all public office is held in trust for the People.

Rule of Law and Public Trust

I will now proceed to reflect briefly on what these two elements mean and their current importance in our country. If one were to summarise all the historical, legal and archaic definitions of what the Rule of Law means, it is quite simply that no person is above the law, that no one can be punished except for a breach of the law and the third most vital part is that no one can be held responsible for breaching a law except in the manner set forth in that law itself.

It has been said that the phrase 'The Rule of Law' has been rendered meaningless to some extent as a result of its frequent overuse in common parlance but even so, there is little doubt that this is the most fundamental principle underlying the functioning of those societies which would like to pride themselves on being democratic.

Second, the concept of an office held in trust. If I may quote the words of one of Sri Lanka's most erudite judges, the later Dr Justice Mark Fernando, this concept has been formulated thus;

'There are no absolute or unfettered powers or discretions in public law. Whenever the law confers powers or discretions on public bodies and officials (however high), such powers or discretions are treated as having been conferred in the public interest, and not for private or political benefit or advantage. Accordingly, such powers or discretions are held in trust for the people, and the exercise of such powers or discretions (or the refusal to do so) must be for their benefit; such powers or discretions must always be exercised lawfully and fairly, and not perversely, arbitrarily or unreasonably'

It would be good to recall at this point, by the way, that the late Justice Fernando was very appropriately referred to at one point and many years back, by a founding member of CIMOGG, Mr Elmore Perera, AAL, as the Chief of the Justices. History has indeed proved how right that observation was.

But to return to the theme of this address, this concept of public trust has been extended to mean that public moneys and public officials cannot be used for party propaganda purposes. So, for example, during elections, a government cannot use the state media for its benefit or use state officials such as Samurdhi Niyamakas for its electioneering.

We are all, at least to some extent, familiar with these general principles. The pertinent question however remains as to the relevance of these principles in Sri Lanka today.

Today's Problems of Justice, Rights and the Rule of Law

Let me be quite clear about the contextual background in which I make these remarks. There are some who may be of the view that today's problems of justice, rights and the Rule of Law has come about as a result of the peculiar political environment in which we find ourselves in today.

But this is not actually the case. The problem is far deeper than this. It is very apparent that at each historical point in time, the framers of Sri Lanka's post independence constitutional documents suffered from a deep rooted distrust of giving practical effect to the rule of law and the idea of justice.

The 1972 'autochthonous' Constitution subordinated the judiciary and only superficially embodied a Bill of Rights while declining to grant the Supreme Court, explicit jurisdiction over the determination of violations.

Thereafter, the 1978 Constitution entrenched the concept of the all powerful executive President whose actions were virtually above the law, besides (in a most absurd paradox), omitting the right to life and inflicting a constitutional rights chapter with procedural restrictions that diminished the protection of those very rights.

So this was the best illustration that one can have in which the defeat of the Rule of Law was systematically achieved, not by small and petty minds but by some of the sharpest minds of that time. This remains our tragedy. Then as now, it is the men most learned in the law who ironically act most in violation of truth and justice.

Given this logical progression of the steady undermining of the Rule of Law through decades, the fact that Presidential autocracy has now reached new heights is nothing to be surprised at. The fact that every well intentioned move to restore the Rule of Law to our constitutional structures was bound to be defeated should come as no surprise.

Therefore the discarding of the 17th Amendment and the adoption of the 18th Amendment should not have caused any person among us to exclaim aloud. What was to be expected? That the gradual gathering of power and even more power to one nerve centre would stop without serious constitutional subversion? Surely we could not have been so naïve as to think that? Yet, there were some who were indeed, surprised by the speed at which the 18th Amendment was passed.

Contrast this to the fate of the Right to Information Bill, delayed at every turn by increasingly imaginative excuses and last week actually defeated in Parliament. There were some who tried to justify this defeat by saying that the Bill would have allowed matters of national security to be leaked in public. These criticisms showed an abysmal ignorance of what the draft law was all about as there was a specific exclusion clause preventing such dangers and in any event, leaving a Right to Information Commission and ultimately the courts to decide.

This is the way of all democratic countries. But Sri Lanka, lamentably, appears not to agree with this thinking. And in our disagreement, we put ourselves at odds not only with the majority of advanced nations but also with our own neighbours in South Asia who have adopted right to information legislation.

Then we have the phenomenon of the absolute politicization of the Department of the Attorney General. Here again, when the Attorney General's Office was taken under the direct control of the Presidential Secretariat, there were some who argued that this was no great difference after all as the Department had anyway been under the Ministry of Justice. Within the following year, we then came to realize the actual difference; when the Attorney General started withdrawing charges of murder and rape filed against prominent politicians. Unprecedentedly, both a sitting Chief Justice and a former Chief Justice made adverse comments in regard to this trend. Notwithstanding, the trends continued. Nothing was actually done substantially to address the issue.

Just this week, a politician indicted previously of murder and who had the murder charge against him withdrawn, was given a suspended sentence for unlawful assembly. On what basis did the Attorney General withdraw the murder charge? Surely should not the reasons be a matter of public record in cases as serious as these?

Deficit of Justice

So the question that I would like to put to this assembly is simply this; do we or do we not have a deficit of justice in Sri Lanka?

It is this deficit of justice that has impacted on all communities, resulting in the deaths, enforced disappearances, physical and mental torture of thousands during the past three decades. Importantly, this phenomenon has been manifested not only during active conflict but also in times of relatively normal functioning.

The very foundations of the liberal democratic polity, such as protection of human rights, independence of the judiciary, a democratic electoral system and the concept of the separation of powers have been used as weapons to strike at the heart of the public's understanding of the rule of law and to twist the constitutional process to suit political exigencies. Should we allow this to continue?

For decades, much effort has been expended on problems of constitutional theory and the niceties of one democratic system as against another (viz; a parliamentary system as against a presidential system, a proportional representation electoral system as against a first-past-the-post electoral system or the form of devolution or decentralization as the case may be. The failure of constitutionalism to provide for the needs of ethnic minorities and to ensure the multi-ethnic character of the polity has been core to this way of thinking.

This thinking is premised on the assumption that Sri Lanka's democratic institutions are in proper working order and that what is required is merely to decide on suitable models of governance. But this is a wrong assumption, in my mind.

While conceding the importance of these intertwining themes, I would contend strongly that the struggle should have been centered round broader questions of the failure of justice and of human rights in general and the failure of law enforcement in particular.

In that regard, the failure of the justice system is a matter not only for the minorities in Sri Lanka but for the majority as well. This is what we should be centrally concerned about. So, when a young boy dies as a result of police action against protests by Free Trade Zone workers in respect of a proposed pensions bill or an opposition party meeting is broken up and its members attacked by the army in the Northern peninsula, it is the deficit of justice that allows such actions to go unpunished.

And by this deficit of justice, I do not mean that the reform of laws or even the Constitution should suffice to redress the problem. In a book on the law relating to Habeas Corpus in Sri Lanka, co-authored by myself and Dr J de Almeida Guneratne, PC which was released in early June this year and in which the functioning of this most important liberty rights remedy is comprehensively examined, the words of Earl Warren, onetime Chief Justice of the United States of America that ‘It is the spirit and not the form of law that keeps justice alive' is extracted at the very start. This is very true. If the spirit for justice dies within, no form of law can keep it alive.

Speaking Out

Too often, the argument is made that one should not speak out for fear of consequences. But this is a weak defence. Instead, the truth is rather that one does not speak out because it is inconvenient to do so, either professionally or personally.

During what was indisputably one of the most turbulent periods in judicial history in Sri Lanka (namely 1999 to 2009), I asked one of our most cherished friends and colleagues, the late Mr Suranjith Hewamanne, AAL as to why we needed to go on pitting what appeared to be our most puny strength against a wall of judicial autocracy. His brief answer was that we cannot afford to stop, that we should not bear to stop.

This was a period when not only the majority of legal professionals were unconcerned about the independence of Sri Lanka's judiciary but legal academics were also silent when momentous events occurred such as when a lay teacher of English who spoke loudly in court was sentenced to one yr RI or when the teaching of international law was turned upside down in our universities after a former Chief Justice ruled that Sri Lanka's accession to a protocol to one of the most important civil and political rights covenants was unconstitutional.

In later years, when unconstitutional appointments of members to bodies such as the Human Rights Commission, the Public Service Commission and the National Police Commission took place, lawyers and retied judges featured largely in the lists! So one may profess extreme cynicism in regard to the assumption that trained legal and judicial minds should be the first to observe and uphold the value and importance of the Rule of Law!

This is indeed the case when we think of a wider application of the Rule of Law in Sri Lanka today. Even when it seems most hopeless, we cannot afford to stop the good fight if this is to be a country that we would be proud of and if we should be determined to walk tall in the world.

So we come to the importance of Peoples' Movements. One good example of this is of CIMOGG itself, not only in the manner of its formation but also its achievements such as its effort to mobilise active Citizens' Committees (CitComs) in every population centre corresponding to the Polling Station Areas (PSAs). This is with the declared aim of applying sustained pressure on the Legislature and the Executive to take serious note of the People's wishes. This is what is missing in current day society in Sri Lanka.

I wish CIMOGG well in its endeavours. May it grow from strength to strength and may its reach extend from beyond the country's cities to the far corners and reach the ordinary hearts and minds of Sri Lankans who remain appalled by injustice regardless of caste, creed or ethnic colouring.

Thank you.

About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.

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