Focus on Rights

Paying a high price for our self-interest
The manner in which the Sri Lankan judicial system has become a negative focal point in South Asia, and indeed internationally, provides a classic example of the destruction that results when politicians act unwisely and civil society acts politically.

Out of these two phenomena, the more dangerous is the second. It is, after all a truism that politicians will always act unwisely. What we are left to mourn therefore are the incalculable consequences of the utter disregard manifested for the state of the country's judiciary during the past several years, not only by legal practitioners but also academics, intellectuals and activists, (many of whom head sophisticated and well funded non-governmental organisations in Colombo).

In retrospect, history will also judge the Sri Lankan media and its singular lack of consistency in exposing particular happenings, which should have been the bounden duty of a responsible and fearless media to report on.

That there were significant - and magnificent exceptions - to this rule of inaction from the outset itself, does not lessen the culpability that has to be visited on those of us who consistently remained silent. This was, after all, despite unprecedented warnings issued by international monitors during the past years.

These included repeated concerns by the UN Special Rapporteur on the Independence of the Judiciary, Dato' Param Cumarasw-amy, regarding the appointment of Chief Justice Sarath Nanda Silva at a time when two inquiries against him were pending in the same Court to which he was appointed as head.

Then again, there was the 2001 report by a delegation of the International Bar Association titled, 'Sri Lanka - Failing to protect the Rule of Law and the Independence of the judiciary' which expressed serious misgivings about, among other issues, judicial administration and discipline of the minor judiciary.

If such reports had been issued, for example, regarding the Indian judicial system, the response from the Indian Bar, activists and academics would have been immediate and soul searching. From whence therefore, this complete absence of any sense of accountability on our part?

As shamefully, we saw this absolute silence again early this year when a litigant arguing his own case before the Supreme Court, was sentenced to one year hard labour for talking too loudly before the court and for persisting in his objections that the Chief Justice should not hear the case as he had been cited as a respondent in the petition.

At that time, the debates were about the real or perceived eccentricity of that litigant, not about what the UN Special Rapporteur referred to as the palpable 'act of injustice' that had been inflicted upon an unrepresented lay litigant attempting to seek justice in the highest court of the land.

As Cumaraswamy pointed out at this Friday's lecture on "Tensions between Judicial Independence and Judicial Accountability -An International Perspective" delivered on invitation of the International Centre for Ethnic Studies (ICES, Colombo), "however misconceived his (Tony Fernando's) grievance may have been, that he could be convicted and sent to prison for one year is beyond belief.

The worst form of injustice in any civilized society is injustice perpetrated through the judicial process. It became aggravated when the court is the highest in the land as there will be no further appeals and moreover it remains a dangerous precedent for lower courts."

However, these were not the concerns that occupied our small, petty little minds, obsessed rather with churning out the latest profundity in nicely published books on Sri Lanka's legal system or for that matter, organizing the latest conference on some abstruse topic or another.

One is left bewildered at the amazing absence of even a single statement issued by any non-governmental organisation based in Colombo at that time, regarding the Tony Fernando case. It was ultimately left to an Asian human rights body working from Hong Kong and its affiliated community based organisations working in Panadura, Katuna-yake and Kandy, to agitate the issue. Now however, the numbers of individuals who express concern about the case are astonishing, accompanied as this is by their proclaimed ignorance about his plight for so long.

That such disregard should be manifest from a country like Sri Lanka which has had established traditions regarding the role of judges and the overriding importance of the Rule of Law is, indeed, a paradox that many in neighbouring jurisdictions such as India, Pakistan and Bangladesh are still grappling with.

Ironically, those countries (which can lay claim only to far more unsettled practices of judicial accountability and independence), have been witnessing, in contrast, hugely vibrant responses to similar crises confronting their own legal systems.

History would judge whether these ostrich-like attitudes on the part of those in Sri Lanka who had a duty to speak out during the time when it might have actually made a difference, were due to political affiliations, self-interest of the most despicable kind or plain and simple apathy.

A phenomena of a different kind was however manifested later this year owing to the public furore caused by the decision of Justice Mark Fernando, to retire from judicial office, two and a half years prematurely.

In this instance, while Colombo's long inactive intellectuals and activists did bestir themselves, the question remains as to whether a highly insecure government will respond to the request for an inquiry as to, among other concerns, how the seniormost judge on this country's Supreme Court, (noted for his erudition, integrity and independence), was not nominated to sit on a single bench hearing the forty or more Bill matters that came before the Court during the past four years or so.

It is time therefore that we take seriously into account, current debates regarding judicial accountability in functioning democracies around the world and the mechanisms whereby accountability is imposed, apart from constitutional machinery for impeachment which is both cumbersome and politicised. This is necessary to provide a framework for ensuring, at least at some later point in time, that the calamities that we witnessed in the recent past, will not re-occur.

In a general sense, the recent Marga Institute findings that almost 84% (83.98%) of all the respondents did not think that the Judicial System of Sri Lanka was always fair and impartial, (one out of every five, in fact, thought that it was never fair and impartial), is not surprising.

It is useful in this context to refer to a particular point made by Cumaraswamy at last Friday's lecture. Reflecting on the constitutional role of judges is to decide on disputes before them fairly and to deliver their judgments in accordance with the law and the evidence presented before them, he pointed out that it is not their role to make disparaging remarks about parties and witnesses appearing before them or to send signals to society at large in intimidating and threatening terms, thereby undermining other basic freedoms like freedom of expression.

His warning that when judges lose their judicial decorum, they also lose their insulation from public criticism, leading to loss of confidence in the system of justice in general, is pertinent. Thus, he remarked that, "Respect for the judiciary cannot be extracted by invoking coercive powers except in extreme cases. The judiciary must earn its respect by its own performance and conduct."

As far as Sri Lanka is concerned, individuals may come and go, as indeed they must go at some point. However, the irreparable harm done to the institution of the judiciary will always remain. Sri Lankans can never again rest complacent about the standards and conduct of those who hold judicial office in this country. Neither will the world look at us with that same old respect again. We have, in effect, paid a high price for our precious self-interest and intolerable naivete.

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