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Handwringing by Government politicians over leaked tape recordings of phone conversations between prosecutors, judicial officers and a United National Party politician known more for his brawn than his brain, (this worthy’s cerebral power appears to be even less than commonly perceived), is hypocritical in the extreme.

Historic undermining of the judicial institution

Even as they badly hide their grins, it is evident that the leaked tape recordings are a political blessing for Pohottuwa politicians as they launch an all-out attack on the judicial institution and independent commissions. It is almost as if these tape recordings, maintained by an undoubtedly asinine politician cum actor (Ranjan Ramanayake), now acting out the role of his life and his even more asinine conversationalists, have destroyed the judiciary in Sri Lanka in one fell stroke. The same impression is given by citizens who tut-tut over the excruciatingly sordid tapes in dismay. But the fact of the matter is that these conversations only expose the ugliness of a long prevalent lived-reality which is neither shocking or surprising.

So let us not be coy on this matter. The deterioration of the Sri Lankan judicial institution did not come about because of conversations taped by Ramanayake as much as bare bodied ruffians dancing in front of former Chief Justice Shirani Bandaranayake’s house under the Mahinda Rajapaksa Presidency did not suddenly materialise out of thin air. These ugly occurrences are the outward manifestations of a rot that had set in some time ago. And to be clear, in both instances, judicial officers are as equally to blame as politicians for inviting the public degradation of the judicial institution.

The Bandaranayake impeachment was not a case of pitting white against black. Indeed, there were several shades of grey, not the least of which was the fact that the former Chief Justice had been herself embroiled in controversies. The fact that none of the judges or prosecutors who played ball with the Rajapaksas at the time was so stupid enough to get themselves recorded doing so, is besides the point. The point here is very different. It goes to judicial rectitude, pure and simple. These are two words that many do  not recognise today.

Poisonous thread of profit for gain

A few decades ago, a judicial officer would not attend the same function as a politician, let alone entertain phone calls from a politician on any pending matter in court. But these traits soon became quaint eccentricities. Instead, judges courted politicians for promotions, political boasts were made from the apex court, Chief Justices became advisors to politicians after retirement and openly appeared on political stages. At one time, it was astoundingly alleged that a murder suspect was entrusted with the caretaking of the Chief Justice’s official bungalow.

From the Chief Justice’s name being seldom ventilated in public, excepting at the hand of a judgment or delivering a keynote address, this became the stuff for rude banter and wayside gossip. All this was to take its inevitable toll. Soon, the poisonous thread of profit for political gain ran through the judicial process, corrupting the rich weave of the thousand-year fabric which had once been the cherished normative value of the Sri Lankan Court. What was earlier, the singular evil of one man or one woman became replicated many times over. And for those who proceed on the flawed basis that such sins stemmed from the Rajapaksas and the Rajapaksas alone, it is advisable to remind that this is assuredly not the case. The Presidencies of Jayawardene, Kumaratunga, Rajapaksa inter alia all reflected these failings, each becoming more aggravated than the previous administration.

In fact, the Judicial Service Commission (JSC) itself became a centre of controversy. In its trenchant report, ‘Justice in Retreat’ (May 2009), the International Bar Association (IBA) warned following a fact finding mission to Sri Lanka, that ‘current procedures for disciplining and removing judges…are in urgent need of review in order to rebuild both the morale of the judiciary and public confidence in it. The requirement for parliamentary approval for impeachment of senior judiciary by a simple majority makes it vulnerable to politicisation. The Judicial Service Commission does not have adequate safeguards to ensure the transparency and independence of its decision-making process and is not able to guarantee a fair hearing for judges and judicial officers under investigation.’

‘Yahapalanaya’ crucified by its own failures

In this deadly ‘guttering’ of the judicial institution, it is true that individual judges, elevated the Bench to barely tolerable levels at rare points, through their integrity and rectitude in handing down decisions free of political bias. One such example was the 2018 decision of the Sri Lankan Supreme Court reprimanding then President Maithripala Sirisena for unconstitutionally dissolving Parliament. Other examples include brave Magistrates and High Court judges who defied intense public pressure to hand down orders putting murderous politicians and corrupt public officers in jail.

But that was not enough. In fact, the refusal to recognise systemic problems in the judicial institution was a major failing of ‘yahapalanaya’. Safeguards to stem the institutional rot were not pressed for by the Bar or by civil society actors. Instead laudatory and highly misleading reviews were written by the ‘yahapalanaya’ establishment about how the ‘independence of the court’ has become ‘restored’ once the Rajapaksas were ‘booted out’ in 2015, notwithstanding the awfully illogical fallacy in predicating the ‘restored integrity’ of the Court on one or two isolated judgements, regardless of how estimable these may have been.

It is now, itself crucified, by that failure as the Pohottuwa roars that judgements convicting murderers, drug dealers etc were ‘fixed’ or ‘influenced, quoting recorded phone conversations where the minimum semblance of propriety appears to have bene discarded. This is, of course, a prelude to a frontal assault on the judiciary. It is not coincidental that we have a private Members Bill currently gazetted which proposes that judicial officers of the superior courts are appointed at ‘political will.’ The argument will be devastatingly simple. A Judicial Service Commission appointed by the Constitutional Council has not been successful in bringing about an untainted judicial process. Therefore a strong (presidential) hand is needed.

This is an argument that must be resisted with all strength. Regardless of contempt of court, the Sri Lankan judiciary is now deluged by a storm of consternation in some quarters and ridicule in others. Judges themselves have become the primary reason why the judicial institution has been dragged into public dissaray. For the question is not Ramanayake per se or his sleazy antics but as to how serving judicial officers (or, for that matter, prosecutors) could have been so senseless enough as to engage in these conversations in the first place. But even so, to use this as a tactic to further erode the fragile state of the Sri Lankan judiciary in this country must be deplored.

That is assuredly not the answer to the Ramanayake saga, however tasteless and incredible the scandal may seem.