Columns

When we point one finger at whoever sits in the chairs of government, two fingers must be pointed back at ourselves. What is wrong politically, whether it is corruption of the most extraordinary kind, inflammatory racist rhetoric or institutional non-governance, is only a reflection of what is wrong in our societies, systems and institutions.

A monstrously corrupt creature
This is seen in ongoing cases on corruption before courts (and probably even more so when the special courts established for that purpose commence full hearings) as well as before commissions of inquiry inquiring into these matters. The manner in which senior public servants not only pandered and bowed to political authority but also personally benefited from political corruption in countless ways is disclosed in excruciating detail. These are the tentacles of an octopus-like creature that has monstrously intertwined its way around the core of the nation’s democratic functioning, choking it and preventing its breathing.

Along with high financiers profiting equally well from whichever party that comes into government and those sections of the security establishment intent on protecting those who have committed horrific crimes wearing the badge of office, these are the constituent elements of Sri Lanka’s ‘deep State’ which controls the direction that the country takes, regardless of what outcome a particular election may have.

This was very evident consequent to the change of regime in 2015. Despite the fact that this was possibly the very last chance that Sri Lanka had to draw itself back from the abyss and despite the very profound expectations for a genuine change in governance, that marvelous opportunity was pitifully squandered.

The role of the judiciary
Neither is the judiciary exempt from this pattern. In retrospect, it is a matter for sadness that Sri Lanka’s Supreme Court had been successful in establishing itself as an independent rights arbiter for thousands of citizensjust during a short few years in the early 1990’s.It was during this period that the Court asserted the right to speedy trial of individuals detained under draconian national security and anti-terrorism legislation. This was during the height of the state’s counter-terrorist measures, both in the northeast and the south. Spurred on by civil-society monitors, vigilant in the protection of liberties, the halls of justice became the final recourse for many.

These judicial interventions were all the more creditable given that the Sri Lankan Constitution lacked the full-bodied thrust of the Indian Constitution, such as the enshrining of the right to life and the encouragement of public interest litigation. Regardless, a strong moral opinion on the importance of constitutional governance was created. Correspondingly, the media also played a creditable role in articulating the importance of the democratic process.

But this bold flowering of rights-motivated jurisprudence was given short shrift. A severe political backlash resulted in the undermining of the Court and later, led to unprecedented allegations of political partisanship against individuals deposited in the office of the Chief Justice by sitting Presidents. For example, assessing the cumulative impact of events during ex-Chief Justice Sarath Silva’s term, a 2001 report of a committee of the International Bar Association concluded in somewhat restrained language that, “…the perception of a lack of independence of the judiciary was in danger of becoming widespread with extremely harmful effects on the rule of law in the country.”

The rest is, of course (particularly mortifying) history, including that particular Chief Justice apologizing for judgments that he had handed down in regard to exculpating former President Mahinda Rajapaksa for financial misappropriation of tsunami funds. Butgoing beyond that individual as we surely must, the point is that things did not notably change, despite various others occupying that seat in the years that passed.

Why constitutional changes cannot succeed
And so we return to the theme of this column, in that the fault lie also in us, not only with those who occupy political office. This is a fundamental reason why, though the very idea of the 17th Amendment was to change patterns of political appointments to high office, it was destined to fail given that the opposition to it by the ‘deep State’ of Sri Lankan political and institutional culture was not resisted significantlyby the citizenry.

To that extent, the 18th Amendment under former President Rajapaksa merely gave the last rites to institutional governance which had been reduced anyway by that time to a caricature of itself. Further and despite all the rhetoric that we heard, the 19th Amendment did not disturb that status quo beyond a point either, though it permitted a semblance of democratic functionality to return. That failure can be traced not only to the machinations of politicians but also to the fact that, as in 1996 and in 2001, civil society voices who should have been independent voices of restraint chose to be co-opted into government, with disastrous consequences as we can now see. A country or an institution for that matter can die, as has been famously reminded, ‘not with a bang but with a whimper.

So the comfortable exchanging of one political leadership for another as (at least) a partial panacea for the nation’s ills is now indisputably over. The question remains as to how Sri Lanka’s legal and constitutional process, based on the notion of the Rule of Law, can be rescued from the grave disrepute that it is afflicted with?

Questions of justice that remain
Indeed, accountability in respect of civilian deaths during the ethnic conflict in the North and East is not limited to a sequence of events that took place at the end stages. This month marks the conscienceless killing of seventeen aid workers in Mutur in 2006 for which no closure has been marked, as has been the killings of Tamil students earlier in that year. Sporadic investigations into mass burial graves in Matale and Mannar with no definitive result underscore the enormity of crimes that must yet be brought to justice.

This is the common thread underlying state excesses in the eighties against radicalised Sinhalese youth which continued in regard to Tamil civilians at all stages of the ethnic conflict. Certainly there is no prescriptive right to claim accountability as uniquely applicable during a particular historical period to a particular ethnicity but when will justice be done?
This is a question that should reverberate in our collective conscience.