Fitting thoughts for post - independence day

by Kishali Pinto Jayawardene

(February 06, Colombo, Sri Lanka Guardian) In discussions with a group of colleagues from a provincial Bar this week, one question provoked spirited and at times, heated debate. In admitting that there are serious flaws in the working of Sri Lanka’s legal system, are we providing avenues for internationalists who have their own agendas, to intervene in the internal affairs of this country?

Bogeyman of international intervention

Such a question would have seemed inconceivable a decade back when there were vigorous discussions and debates taking place on almost every aspect of legal and public life without the bogeyman of international intervention haunting us at every turn. But this is not so anymore. And undoubtedly, this is a question that is timely in the context of a skillfully crafted fear put in the public mind by the spin doctors of this regime that the international community (by this, read the Western nations) is waiting and watching for every chance that it will get to teach Sri Lanka a lesson for not halting the war against the Liberation Tigers of Tamil Eelam when asked or bullied to do so.

The morality of international law, or lack thereof, in a scenario where its principles are often summarily dismissed or callously manipulated by powerful nations in fighting wars for their own benefit as exemplified most recently by the wars initiated by the United States and the United Kingdom (along with their allies, including Australia), in Iraq and Afghanistan underlines this apprehension in very specific terms.

The responsibility of a Bar Association

In his regard, the Panel set up by the United Nations Secretary General (UNSG) to advise him on questions of accountability on the question of human rights violations committed during the last stages of the conflict is an inflammatory flashpoint, notwithstanding the fact that this appeared to be just a desperate tactic of the UNSG to silence persistently irritating voices calling for some action on Sri Lanka.

It must be recalled that the Bar Association of Sri Lanka itself, which would have been expected to have taken a far soberer stand on the issue of legal accountability for rights violations, was engulfed in unseemly controversy over a resolution which called for any person who engaged with the UN Advisory Panel in any way to be ostracized. Saner counsel appeared to have prevailed and we were then, informed that this resolution had been withdrawn (or not approved as the case may be) and a revised resolution substituted which, at least, was couched in more reasoned and legalistic language. The revised resolution also thankfully omitted the reference to ostracizing.

The acidly humorous part of this tale is that if the original resolution had indeed been passed by the Bar at that point, this would have caused quite a quandary in later months when the government itself changed its position and engaged with the UN Panel to the extent of stating that it would issues visas for the members of the Panel to visit Sri Lanka. Would the Bar then have been called upon to ostracize the government in terms of that initial ill thought of and hysterical resolution?

This incident needs to be recalled for the reason that one would expect a far different and more rational engagement of the Bar with these matters. Where is the concern of the Bar Association on pressing questions of institutional and legal reforms and on fundamental matters such as the independence of the judiciary? If a country’s systems work to the extent that generally, citizens are satisfied that justice is not only done but also seen to be done, then we look after our own. There would be less fingers pointed accusingly at us from the Western hemisphere or indeed, from any part of the world and we would not need to be concerned about the hypocrisy of the international political order which does indeed go contrary to all that international law teaches and preaches.

Propelling public confidence in the justice systems

To that extent, critiquing one’s own systems with the objective of compelling reforms and increasing public awareness should not be deterred by the apprehension that such opinions could be used by others for their ulterior motives. To assert the contrary would lead to an absurdity in that legitimate views and the expression of opinions on particular issues would then die a natural death. This is what totalitarian regimes would salivate over.

The point is that even if there are occasional lapses in the administering of justice, this will not lead to outrage unless those lapses in justice become systemic and are propelled by political interference in the working of the judiciary or by the judges themselves becoming politicians. The proper working of a country’s legal systems directly impacts not only on issues of accountability for grave human rights violations but also at a far more mundane level, on public confidence in the institutions of justice.

This would apply therefore even in regard to simple matters such as observing the principle of fairness and equity in employment. For example, if a police officer gives instructions to his subordinates to tear down posters that violate election law and then is dismissed by the Inspector General of Police (IGP) when those election posters happen to belong to the government or to the ruling executive, one would expect judicial intervention in this respect to be both responsive and effective. In other words, not only should the relevant Court strike down such a dismissal but the IGP and the government must be seen to be obeying such a judicial order. At one or the other level, there must be general satisfaction in the working of checks and balances against a powerful legislature or a powerful executive as the case may be.

Riding roughshod over peoples’ rights

In sum, the duty that is laid on each and every one of us to critique failures of justice in our own system should not be minimized or silenced due to fear of how that criticism may be used by others. On the contrary, it is the equal duty of a responsible government to examine those criticisms and ensure that systems are reformed. Political leaders who think they can ride roughshod over peoples’ rights time and time again have always learnt rude lessons in this country.

In the wake of yet another Independence Day, it seems fitting to point out there is no reason to think that this pattern has changed now, despite the seeming invulnerability of a particular regime.

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