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The indiscriminate irony of injustice

By Kishali Pinto Jayawardene

(April 04, Colombo, Sri Lanka Guardian) As one senior legal academic and administrator dispassionately remarked in an energizing conversation some months back, very few people look at issues when political and institutional accountability is debated in this country.Instead, the focus is on personal likes, dislikes and prejudices or indeed personal benefits and advantages.

Countervailing forces of public opinion

This is perhaps the single most reason as to why, during recent decades, those wielding political power have been allowed to run rampant without being constrained by the tug and pull of powerful restraining forces that owe nothing to a particular political persuasion.

With all its vaunted literacy, Sri Lanka is manifestly different in this sense to, for example, India which, despite its considerable problems, does demonstrate an essential counter balance in the public sphere. At some points of historical time, Sri Lanka too, had countervailing forces of opinion emanating from academia, the activist community, the media and the public in general. After decades of taking collective and individual punishments however for daring to inject some degree of sanity into public debate, many remaining brave voices have gradually been stilled. They have been overwhelmed instead by the racism, the xenophobia and the irrational hatred that runs uneasily through the seemingly vibrant buzz of post war development.

Perverse allegiances and fawning sycophants

An inevitable part of the above mentality is the ease with which many switch allegiance to whichever individual or force in power. One illustration is particularly powerful in recent times. Not so long ago, many among the legal community excelled at singing untuneful hosannas to Sarath N. Silva who, among the other notches marked on his record, has now added the further accomplishment, if one may call it that, of being the first ever former Chief Justice of Sri Lanka to vigorously campaign on political platforms.
However, the fact that he is on (what may be termed, in a cynical understatement), the unpopular side in the queasy mix of what passes for politics in this country, has caused quite a few of his formerly fawning admirers to revile him in the worst of terms.

Those who, some years back, scornfully tossed aside the many documented allegations of abuse of office of this former Chief Justice while bowing and swaying in his wake, now dwell with gusto on these very same allegations and hope loudly that justice will be done.

But where were these loud opinions during the ten year period of this Chief Justice's Court when the law and the courts took a most severe beating in the basic sense of the term? Are we to assume unbelievably that these worthy (and honorable) gentlemen were woken up to a sense of the severe subversion of judicial institutions during 1999-2009 only after the former Chief Justice declared his support for the former common opposition Presidential candidate?

This, in essence, is what is so completely wrong with our public and institutional conscience. It is not a question of not being able to see the issues untouched by personal prejudice or benefit. Rather, it is the far worse sin of seeing very well but perversely choosing to act completely to the contrary.

The common irony of injustice

Similarly we see many persons being mum and others veritably overjoyed at a farcical military trial being conducted against a former common opposition Presidential candidate and Sri Lanka's former Army Commander, who remains incarcerated in what his family say, are conditions that will lead to irreversibly bad consequences in terms of his health. A while back, journalist JS Tissainayagam was indicted in a similarly farcical use of the normal law.

Yet whether it is the normal law or the military law actually counts for very little when the law itself is abused in so blatant a fashion. Sarath Fonseka and JS Tissainayagam may be as far separate from each other as can be humanely possible but ironically they share this one common characteristic of the irony of palpable injustice. And the danger of going down this road of abandonment of Rule of Law is that this weapon may be most indiscriminately wielded; on one occasion, it could be against an innocent victim, in another instance, against a journalist and one yet another occasion, against a onetime perpetrator of human rights abuses himself.

The April elections and promises of politicians

This reality cannot be masked by the near hysterical pseudo sincerity with which government politicians claim that a two thirds majority is needed by this government in order to usher in a more people friendly Constitution for Sri Lanka. Let us not forget that the 17th Amendment to the Constitution was passed without division in the House in 2001 precisely to ensure that very same objective; accountable and restrained governance. Instead what we had was the opposite.

As a fitting culmination to this shameful drama, we now face a coming General Election presided over by an Elections Commissioner who has lost every shred of his credibility as an independent conductor of the electoral process. Are we to assume that promises now made by politicians of a better Constitution will be more solemn than those made previously? More to the point, are we made of lunatic matter to entertain such thoughts even fleetingly?

Superficial markers of normality

It may well be tempting to sink into the delusion that this country is at peace because no bombs are exploding on the roads, no daily casualties are reported from the war front and the rate of tourist arrivals have doubled.

But the reality is that without principled governance, these become mere superficial markers heralding an outbreak of violence later, even if decades down the line. The simmering tide of resentment underlying the public mood was precisely why last year, the administration was shaken to its marrow by an unprecedented challenge posed by the former common candidate for the Presidential elections, just when it seemed that nothing could dislodge this Presidency in the post war months.

Notwithstanding the apparent majority with which President Mahinda Rajapaksa retained his seat this January, the shock of the challenge continues to be well seen in the extreme measures taken to repress that challenge.

And despite the end to three decades of active conflict, where indeed is the democracy that we ought to be celebrating?

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