Columns

Ending last Sunday’s column on the dangers to Sri Lanka’s democracy from a creeping deep state it was said the current collusion between the executive and the legislature leaves an independent, impartial and upright judiciary the only democratic bastion against those wielding an autocratic wrecking ball.

Some important recent decisions have shown that such a judiciary does function by and large. But it is always in danger of being smothered by lawmakers and those who propose obnoxious new laws or are in search of antiquated ones to revive and abuse.

A couple of days after that column appeared, one witnessed another enlightened and meaningful judgment, this time from the Colombo Chief Magistrate Prasanna Alwis who made a mockery of the charges filed against the convenor of the Inter-University Student Federation (IUSF) under the Prevention of Terrorism Act.

It makes one wonder about the quality of the Attorney General’s Department which once enjoyed a reputation for fairness, impartiality and legal competence being sullied in more recent times.

Chief Magistrate Alwis, quite rightly, tore apart a highly spurious and unlawful attempt to incarcerate even longer than the near-six-months Wasantha Mudalige, convenor, has already spent on trumped-up charges, buttressed by what seemed fake evidence cooked up months after the so-called ‘crimes’ he was accused of committing.

Even worse, the executive resorted to an abhorrent law introduced by the JR Jayewardene UNP government that was initially meant to be temporary and intended to prevent terrorism, particularly so after the government promised the UNHRC early last year that Sri Lanka had placed a moratorium on the PTA and it will not be used. A few months later that promise was broken by the new Ranil Wickremesinghe presidency.

Interestingly, this violation of a solemn pledge made to the UNHRC was confirmed just four days back by the very person who made it before the Human Rights Council in Geneva — then Foreign Minister Prof GL Peiris.

Interviewed by Asoka Dias on the “Pethikada” TV programme, the former foreign minister said that before leaving for the UNHRC sessions in Geneva, President Gotabaya Rajapaksa impressed upon him the importance of assuring the UNHRC that Sri Lanka was in the process of drafting a new law to replace the PTA. Until that was done the government would place a moratorium on the PTA and it would not be resorted to under any circumstances.

Prof Peiris emphasised that the international community had lost faith in promises held out by Sri Lanka. That should come as no surprise.

Chief Magistrate Alwis’s verdict came, quite coincidentally, at a time when the Universal Periodic Review on Sri Lanka came up for consideration in Geneva. A key issue there is the PTA which the UN High Commissioner for Human Rights and the UNHRC itself have been increasingly critical of and have been calling for a new law compliant with international human rights law and international humanitarian law, to replace the PTA.

At the Geneva sessions, the US representative was reported as saying that the US supports “Sri Lanka’s effort to uphold freedom of expression, association and peaceful assembly which is central to Sri Lanka’s traditional democracy”.

Unless the US representative confused the word “uphold” with the word “withhold”, that remark must surely have raised many eyebrows, especially in Sri Lanka where its citizens have watched with growing anxiety the “effort to uphold” what is central to the country’s “traditional democracy.”

“We recognise steps taken during the recent months to improve economic transparency in governance, however, we are concerned by reports of abuse by security forces, the use of anti-terror legislation to detain human right defenders and rise in corruption, he reportedly said.”

While the comments about trying to “improve economic transparency in government” might sound rather top-heavy to those who have kept abreast of the news — such as the shenanigans in the Health Ministry headed by Minister Keheliya Rambukwella as exposed in the Sunday Times in recent weeks, and other issues — of immediate concern is the latter part of the statement.

While the security forces will doubtless play a central role in the Independence Day events — nearly 80 of them have already been awarded “padakkam” by President Wickremesinghe at a ceremony in Kandy it appears — elsewhere in the world Sri Lanka’s security forces are being mentioned for entirely different reasons along with the government’s use of “anti-terror legislation to detain human rights defenders.”

What Chief Magistrate Alwis’s comprehensive and well-researched determination has done is provide critical judicial ballast to the burgeoning observations on Sri Lanka that are presented not only in this periodic review but over the years where the country’s prevarications and procrastination have only added more weight to the mounting international criticism.

In that sense, the verdict is a vital addition to judicial history when judges from pre-independent days have stood firm and acted with integrity and principle, unswayed by political pressure and other forces of darkness gathering around them.

One important lesson that recent judicial decisions have taught is that those who enjoy immunity are not perpetually above the law and public officials, however powerful they may be-who act outside the law, abuse it or ignore it, will, sooner or later, face justice for their overbearing attitude towards the people.

Today one can sign orders for detention. But that authority is not permanent and disappears when out of office. One might recall that former president Chandrika Kumaratunga had to pay a price and more recently Maithripala Sirisena an even bigger price, after they lost their immunity at the end their term of office.

The Supreme Court also faulted several high-ranking officials for failing to act when in office, never mind whether they were intelligence men or not-so-intelligent ones. The law had caught up with them. Neither those who have served in the highest executive office nor officials in state positions can consider themselves free of personal responsibility.  They can and have been held personally accountable.

These are good lessons for those in high office today who have turned politically servile and believe they are safe under their temporary political refuge.

Even after the judicial expose’ last week the police have still not finished hounding the innocent and want the AG’s Department to have the man arrested again to continue with their investigations. Not having found an iota of evidence, according to the learned judge, before his arrest or nearly six months later, the police wish to harass the victim because they cannot lock up justice.

Whatever was Sri Lanka’s defence of its past performance presented in Geneva last week, it has been indicted by the judiciary at home. That tells the world a more compelling and reliable side of the story than that presented by the illusionists of the state.

(Neville de Silva is a veteran Sri Lankan journalist who was Assistant Editor of the Hong Kong Standard and worked for Gemini News Service in London. Later he was Deputy Chief-of-Mission in Bangkok and Deputy High Commissioner in London.)