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When law becomes comic – Part Eleven

Collapse of the legal intellect in Sri Lanka – from luminaries to lunu miris
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By Basil Fernando

(August 18, Colombo, Sri Lanka Guardian) The late H. V. Perera is considered a symbol of great achievements of the legal intelligence in Sri Lanka. However, today all the past achievements have been erased. Law is seen as a basically futile exercise now that the possibilities of legal redress have been restricted in every possible way. When the law itself becomes irrelevant, it is quite natural for lawyers to become equally irrelevant.

One time, it was quite common for lawyers and judges and even some politicians to boast about the country's over 200 year old tradition of law, of judiciary and of the legal profession. Books have been written on the history of the modern legal system in Sri Lanka. However, such boasts are hardly ever heard today. In its place, what you hear in the corridors of courts, in the chambers of lawyers, and even in general conversation are curses about an accursed system that does no good to anybody.

Law today is seen as an exercise in futility. The constitution of 1978 has diminished the role of law in Sri Lankan society. After 31 years of this constitution, it is not even possible to recognize what is law in Sri Lanka and what is not. When the executive president placed himself above the law, there began a process in which law became gradually a matter of no significance. There's hardly any surprise. When the constitution itself becomes a document that destroys all checks and balances over the executive, the constitutional law is no longer of much relevance. When the paramount law is not of significance, then such insignificance seeps down to all other laws. When laws become insignificant, then the public institutions also lose their power and value. In that background the judiciary, which is tasked with adjudication of disputes, also lose their authority and power.

What then emerges is law as a phantom limb. It has been medically observed that a large percentage of amputees who lose one or more limbs continue to imagine that they still have that limb. It has been observed that many of them can feel pain in the limb that they don't any longer have. This is the situation of law in Sri Lanka. Almost ritualistically, judges, lawyers and litigants mechanically go through processes, as if the law still exists.

Take the whole debate on the 17th Amendment to the constitution and the 13th Amendment. Debate goes on endlessly on the basis of an underlying assumption that a constitutional amendment is a matter of significance. There is unwillingness to accept that the grafting of a living branch to a dead tree does not bring life to the branch or to the tree. Some even argue that comparing the 13th Amendment with the 17th Amendment is to mix apples and oranges or lunu miris (salt and chili paste) and cake. However, the comparison is not between the 17th Amendment and the 13th Amendment. It is about the dead tree of constitutionalism in Sri Lanka, to which additions of branches cannot bring back life.

Today, underground elements have taken over many functions which are usually fulfilled by law enforcement agencies that are guided by the institutions of administration of justice. For example, if a debtor does not pay back his loans, creditor may turn to a reputed criminal to get his money back. Stories from many people show that the criminal is able not only to get the money back, but also to do so very quickly, whereas the legal process in the country is so beset with delays that a creditor may get his money back, but after many years and by spending more than what is owed to them. Both practically and psychologically, the performance of the criminal far surpasses that of the legal process.

It is no surprise that politicians rely more on criminal elements for their own protection than they do on the legal agencies, and every election demonstrates a contest between the criminal elements that support one or the other party. Instead of a democratic process of trying to persuade voters on the basis of advocacy of policies for improvement of their lives, what takes place is a process of coercion and intimidation where a voter who wishes to exercise their vote intelligently is at great risk.

The greatest manifestation of the impotence of the legal intellect is the widespread news of extrajudicial killings in the country. The recent killing of two innocent youth in Angulana is symbolic of many such killings throughout the country. How many young boys and girls in the north and east have been killed in a similar manner under the pretext of eliminating the LTTE? Similarly, how many innocent young boys and girls were killed in the south under the pretext of eliminating JVP? The litany of such questions can be very long. However, the answer is always the same – the legal system in the country is unable to deal with any of these problems.

Still, the terms such as "judge", "lawyer", "state counsel", "police officer" and many other similar terms are being used in the same way as in the past. However, the inner meanings of these terms have substantially changed. Those who bear such titles no longer have similar authority, power and responsibility as their counterparts had in the past when the law was still the organizing principle in the country.

The diminishment of the lawyers' role demonstrates the transformation that has taken place in the country. Today, even police constables run roughshod over lawyers who intervene on behalf of their clients at the police stations, or even in magistrate courts. Bribing policemen is a better method for getting bail for clients than to follow the legal procedures and insisting on legal rights. The questioning of the police on various illegalities is a sure way to bring on a multitude of harassments on the client as well as on the lawyer him or herself. Bribery is a thousand times more powerful than the law. The recent attacks on lawyers in the Defense Ministry website for appearing for suspects of terrorism in one instance, and appearing for a dissident newspaper in another, termed then as traitors. So much is the prestige enjoyed by lawyers.

When the law loses importance, the quality of legal practice itself naturally gets diminished over time. It is natural for intellectual energies not to waste themselves on futile exercises. Noticing this change, a High Court judge once noted that at one time there were legal luminaries and now there is legal lunu miris.

Once the law ceases to be the foundation of a society, it is inevitable that it will plunge from crisis to crisis and no one can predict where, finally, the society will end up. In Asia, Burma is an example of the total loss of law and the resultant the entire collapse of all aspects of the social order. This one time prosperous country is now one of the most disorganized societies, wherein a handful of unscrupulous people exploit all the national resources for themselves while the people are becoming poorer and the quality of life is diminished in all areas.

Every year many students pass legal exams and join the legal profession in many different ways. In a country where law has lost all significance, what future do these young people have except to join in the exploitation their clients and providing services not through legal means but by other means.

Related Link:

Part Ten: Undoing the small reforms of the former Attorney General, KC Kamalasabayson

-Sri Lanka Guardian

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