People in search of justice
When the UNP joined hands with some other parties and civil society organisations to propel Maithripala Sirisena as the “common candidate” to eject the incumbent president from his powerful perch, it was at a price.
Sirisena had to make a promise -though he seems to be rather forgetful of promises made -- to appoint UNP leader Ranil Wickremesinghe as prime minister though he had less than 50 seats in the 225-member parliament.
They also made numerous vital promises to the people of Sri Lanka. Among them was a return to the rule of law and independence of the judiciary.
All these and other promises were laudable. A people eager for political and societal change naturally grabbed at this offer to radically change the style of governance, though Sri Lankan voters have over the years learnt bitter lessons of political chicanery and failed promises.
After t h re e years of yahapalana governance unfulfilled promises litter the political path while policies never expected by a now jaded and disgruntled public have crept into the government’s agenda.
President Sirisena’s decision to hang selected drug dealers, roundly applauded by a cabinet of ministers, still unsatiated by farce or comic opera, so reviving capital punishment that has been in abeyance for several decades, is a case in point.
Whether it was the lack of progress in bringing law and order to the northern areas and failure to resurrect a war-torn land that provoked UNP State Minister Vijayakala Maheswaran to make provocative remarks at an official meeting in Jaffna about how peaceful it was under LTTE rule, an expression of deep sorrow at the murder of a child some days earlier or some other longing, one can only guess.
Whatever caused that outburst which attracted loud applause from a gathering of state officials, it did rouse anger and condemnation in other parts of the country and in parliament which had to be adjourned as a result of the riotous behavior of some MPs.
More than one month after that Jaffna speech and a referral from the Speaker to the Attorney-General for advice on whether MP Maheswaran had breached the law, a deafening silence has descended.
An anxious public tired of suffering from a secessionist war and disturbed at what seems like a call for a revival of an organisation that resorted to terrorism as a political weapon, is naturally concerned at the silence of the AG’s department.
Is the AG and his juniors poring over piles of statute books in search of a law that could indict UNP parliamentarian Maheswaran or dragging their feet hoping that all the ho ha (or is it ha ho?) that flared up in parliament and elsewhere following her remarks would fade away. Surely not, as the battle for power begins.
After all it would not be the first time that the AG’s department has been accused of legal inactivity. In recent years the AG’s department has come under severe criticism especially over its seeming inaction over cases of bribery, corruption and money laundering allegedly committed by some leading members and high ranking officials of the previous government.
Besides government politicians, investigative agencies that have scrutinised activities pertaining to bribery and corruption have claimed that some 70-odd files with their reports have been handed over to the AG’s department. They were said to be lying (lying?) there at the time the allegations were made.
It was the 3rd century Greek philosopher Sextus Empiricus who is credited with having first said “The mills of the gods grind slowly but they grind exceeding fine.” Several centuries later poet Henry Longfellow was also said to have made a similar observation.
While the mills of the gods might have taken time to produce results, in Sri Lanka wheels of justice seem to grind ever so lazily, if they have not come to a grinding halt.
Some claim that Vi j ayakala Maheswaran has violated article 157A of the constitution. That provision states: “No person shall, in or outside Sri Lanka, support, espouse, promote, finance, encourage or advocate the establishment of a separate State within the territory of Sri Lanka”.
As a layman it appears to me that the question the AG must determine is whether Ms Maheswaran has violated that article of the Constitution or any other law that makes her utterance a criminal offence.
The more such a determination is delayed the longer justice is denied to those who wish to see her found guilty or to Ms. Maheswaran herself who believes she had done no wrong. Even those who do not claim to be knowledgeable in the law are aware of the oft quoted saying that justice delayed is justice denied.
It might be claimed that the AG has not had sufficient time to study the translations of her comments. But too much delay leaves room for the Court of Appeal to be moved against the AG’s alleged nonchalance.
One argument raised against the accusations of tardiness in the department is that it lacks sufficient qualified personnel. We hear from Colombo that the department is now recruiting some 100 junior lawyers to fill gaps in the department. It is said -- how far this is correct I do not know -- that even individuals who have not completed their internships are being rounded up.
This is where influence peddling begins because those mediocrities with political influence but little talent creep into the service and remain beholden to the political creeps who pushed them in and expect payment in retur n. Mediocrities with insufficient knowledge of the law to sit on the bench from the lowest levels such as magistrates are also adorning the judiciary.
One of the allegations made against both the AG’s department and police investigative bodies is that those who weighed in to help the Rajapaksa administration are still in positions that could delay decision-making in the AG’s department and in law and order institutions.
The charge of disappearing files and evidence from state institutions, includ- ing court registries where officials work in collusion with lawyers, is certainly not uncommon. Those who have practiced law in our courts are quite aware of the shenanigans that go on.
That is why the woman lawyer who spoke openly on these matters has been debarred from the Chilaw Bar Association and attempts are being made to have her dragged before judges on contempt charges, according to information in circulation.
This raises a vital question with regard to contempt of court. Lawyers tell me that there is no clear definition of what constitutes contempt of court. Some judges consider merely raising one's voice in court, even by a litigant feeling discriminated against, or criticising a judicial decision, amounts to contempt.
Today Deputy Minister Ranjan Ramanayake is to be hauled up for contempt for remarks he made. The problem here is that contempt is defined at the discretion of the judge.
It is because of this serious anomaly that the Bar Association of the time, then a respected institution unlike today, appointed a committee chaired by Desmond Fernando PC and several wellqualified lawyers to draft a contempt law.
That draft law was presented to the then government sometime around 2006. Nothing ever happened. It went into the “hamus pettiya” as some call it. Then at the tail end of December 2011 the then Justice Minister told parliament that the contempt law was being drafted and it would be presented to parliament very shortly.
Seven years later, most citizens of this country are scared to say anything critical of the judiciary in case they end up in court facing contempt charges because they do not have a clear definition of the charge of contempt.
I suppose that is the way judges, who have just been given another salary increase some drawing Rs 800,000 a month besides perks, would like to have it.
While in many countries in the world there is a code of conduct for judges, Sri Lanka’s dispensers of justice find that they do not need it. Last April at a conference in Vienna, where chief justices and senior judges from several countries launched the Global Judicial Integrity Network, Sri Lanka’s current chief justice had, in an intervention, said that his country does not have a code of conduct for judges.
Whether other global participants took this remark as a compliment to the integrity of Sri Lanka’s judiciary where such a code is not considered necessary or as a mere statement of fact to be recorded remains obscure.
But to Sri Lankan citizens, who have to come before the judiciary on various issues, it would seem a serious lapse that when other professionals have to abide by codes of ethics, the judiciary has exempted itself.
Some in defence of the judiciary have told me that nobody has asked for such a code of conduct. Understandably the judiciary will not, when it has an upright collection of judges.
Still the argument seems a strange piece of logic that is not worthy even of intern lawyers now being recruited to provide us with justice. If a money launderer sees no need for laws that inhibit his modus operandi or his practice of turning his illegal earnings into legitimate gains, do law makers abandon their intentions because the corrupt and the violators of the law have not asked for it?
One other connected matter is why judges are permitted to recuse themselves from hearing cases they are listed to hear without any explanation in open court and to the public? What are they fighting shy of ?
How many times have judges withdrawn from the cases involving Gotabaya Rajapaksa because he has filed a fundamental rights application against his arrest. At least five judges have done so. Can the Judicial Service Commission or whatever high- faluting commission entrusted with the task of explaining the conduct of judges, tell the public of Sri Lanka why judges of the judiciary do not want to hear cases against Gotabaya Rajapaksa and what is meant by “personal reasons”. What we do not know is whether these personal reasons are the same or different. That is all the more reason why the public have a right to know.
Could the public be told what is so special about this Rajapaksa that this seems to be the only case in the last three years from which at least five judges have recused themselves without a word to the public that pays their salaries including the recent increase.
Yahapalanaya promised the people independence of the judiciary. Now they have got it.
How many times have judges withdrawn from the cases involving Gotabaya Rajapaksa because he has filed a fundamental rights application against his arrest.