Identity Crisis for the Sri Lankan Judiciary

| by Gajalakshmi Paramasivam
I write in response to Sri Lanka Guardian article  ‘Acting contrary to the greater good of Sri Lanka’  by  Kishali Pinto Jayawardena

( January 3, 2013, Melbourne, Sri Lanka Guardian) Paramasivam family means different values and forms  to different sections of the Community we are a part of.  Likewise Sri Lanka. Only one  who naturally ‘includes’ anyone known as a Sri Lankan including criminals and terrorists is a true Sri Lankan. Just yesterday, I said to our  four year old granddaughter who included herself with her cousins (older than herself and her sister) rather than her sister – that her primary duty was to be with her sister and not to join the bandwagon and  find fault with her five year old sister. Separation removes the need to ‘judge’ but relate and learn from each other at the growing stages. At that level it is about ‘likes and dislikes’ rather than rights and wrongs.  The Judiciary are the cousins of Politicians. On the side of  citizens – some of us are siblings of Judiciary and others siblings of Politicians. Even as individuals – sometimes we are Judiciary and at others we are Politicians. Each side within us needs to be ‘judged’ and punished or rewarded as per their respective cultures. Internal sharing helps us become stronger participants when we meet the external world. Towards this we need to remain with our natural sides and be represented as ‘one group’.

Ms Kishali Pinto Jayawardena  states ‘This week, newspaper reports quoted Sri Lanka’s Defence Secretary and President Mahinda Rajapaksa’s  brother accusing foreign elements of ‘using the judiciary to destabilise Sri Lanka’ (Daily Mirror, December 29th 2012).’

The citizen who has not invested outside Sri Lanka, including through wider laws and standards applicable to the global community, would find it easy to follow the thinking of the President’s brother whose responsibilities are primarily ‘domestic’ in nature. To the extent – the Defence Secretary saw his group as Sri Lanka – it is understandable that the involvement of others outside his circle – would be seen as interference by outsiders. Like mothers driven by emotions, the Defence secretary also is separating and isolating on the basis of his likes and dislikes, which are taken as the likes and dislikes of his group. One needs to be conscious that this group is strongly driven by family ties – for better or for worse. Without these family ties,  it is highly likely that the Sri Lankan Judiciary would not speak as freely as it speaks today – for it is highly likely that without these family ties – the LTTE would continue to be seen as the first challenge to the independence of  the Government followed by   the Judiciary.  All those who considered the LTTE  to be terrorists need to pay their royalties to these family powers that defeated the LTTE..

Ms Kishali Pinto Jayawardena  states ‘But significant departure from this principle was evidenced not in the current Chief Justice’s time but during the Sarath Silva Court when objections arising from express conflict of interest were summarily dismissed as a matter of course throughout that ten year period. Among the plethora of such cases is the Tony Fernando case where in defiance of all norms of propriety, Fernando’s petition citing the Chief Justice as a respondent was heard before a Bench presided over by the Chief Justice himself who dismissed all objections to his hearing the case without further ado. Fernando himself, a lay litigant and middle aged teacher of English, was then sentenced to rigorous imprisonment for contempt of court. As may be recalled, the United Nations Human Rights Committee quoted this case as an excellent example of judicial abuse of power when a plea by Fernando was brought before the Committee. ‘

The pattern that is demonstrated is very interesting. One who is dependent, would act to please the person/s s/he is dependent on. During the time of Mr. Sarath Silva, the Judiciary was not seen as an Equal Power to  the Parliament. The Tamil Tigers were seen to be the direct opposition / enemy of the Government and therefore their Equal and Opposite power. . Post LTTE, ordinary citizens as well as various professions are taking up more independent positions in relation to  the Government.  The Judiciary is no exception. But from the Government’s point of view, the Government is still in ‘victory mode’ and is not ready to come down to Equal position with any other section of Sri Lankan society.  Hence the conflict.

..................... Summery : Play The Video ................


One may very well claim that the Judiciary has the ‘right’ and ‘duty’ to act independent of the Government. That is the theory of Democracy. But in reality – is the Sri Lankan judiciary a democratic power? If  they are not, hasty application of Judicial powers including to protect its sovereignty could lead to abuse of power by the Judiciary. The conflict between the Parliament and the Judiciary in a society that is not yet democratic, is the parallel of the conflict between Business and Law. When I was arrested by the Police for ‘waiting’ to see the Vice Chancellor of the University of New South Wales, some business minded Australians said that whilst they accepted that my actions were not unlawful, they were bad for business. I said they were bad for bad business. Most protest actions are bad for business. The Sri Lankan Parliament protested against Judicial business and v.v.
Unless the Judiciary took a stand against the political moves of the Government which  turned a blind eye to the democratic rights of an ethnically independent community, it would not have the moral authority now to take a stand to protect its own sovereignty. As per my knowledge, the Sri Lankan Judiciary did not take a strong stand against the suppression of  Democratic rights of the Tamil community but found it convenient to focus through the LTTE and its violent actions. Until recently, Tamils were seen as the real opposition of the Sinhalese Government and hence they were naturally entitled to Equal Status as the race represented in Parliament through majority vote. Those who elect Government on the basis of Sinhala Nationalism – are naturally electing the minority races as their opposition. Whether they  consciously recognize it or not – the real powers of Democracy would work as per this true system.

Hence, to the voters who elect Government as per their belief in Sinhala Nationalism – the actions by the Government against the Judiciary would seem appropriate. To the true Sri Lankan – and/or the global minded Sri Lankan, the moves by the Judiciary to oppose the Parliament to protect  Judiciary’s sovereignty would seem appropriate. In multicultural societies where there is conscious recognition of different forms given to human beliefs, other cultures often become the natural opposition in politics. Hence the greater problem with  the LTTE compared to the problem with the JVP.

When one side desires the benefits in the custody of  the other – this often results in replacement of one form with the other. This is observed to have been the case with the Sri Lankan Judiciary. When there is a ‘higher common form’ for our beliefs, we travel together and hence Unitary structure of governance would be appropriate. But when we replace one with the other at the lower level – we cease to travel together and hence keep interfering with each other – as is happening in Sri Lanka  in terms of ethnicity as well as judiciary.

When the British ruled – we accepted their form as the higher common form. It may not have been truly the higher form but due to its distance and the higher material status of the British – we may have thought it was higher. This is usually the case with migrants here in Australia. If the Sri Lankan judiciary had actively practiced the laws that were in force during Colonial times, they would have had little difficulty extending their thinking to include ‘foreign’ elements.  Their judgments on that basis would have been generally accepted by the Politicians also if there had been continuity. But when the Judiciary remains quiet and silent when the fundamental values of democracy are eroded by ‘local’ actions to please majority – they lose the support of their own ancestors who invested in wider laws to determine rights and wrongs. The ‘Sinhala Only’ and ‘Buddhism first’ laws promote localization and therefore political supremacy.  If it happens naturally, it generates majority power. Majority must feel confident in that real investment to lead through the form of majority. Once a law is introduced to empower ‘majority’ forms – it dilutes the natural power of majority.  Laws are about rights and wrongs and not about likes and dislikes.  It is undemocratic to introduce laws in relation to form  where a system is driven by majority vote. Such laws weaken the system and hence the introduction of Equal Opportunity laws. They confirm lack of self confidence.

So long as there are ‘Sinhala Only’ and ‘Buddhism first’ laws they confirm the ‘insecurity’ felt by the law makers.  When they are actually implemented – they immediately weaken the real powers of majority.  Hence the problem with Tamils as well as with Judiciary. Article 4 (c ) of the Constitution is the parallel of Sinhala only in environments where ethnic opposition is weak. Article 4 (c ) states ‘the judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognized, by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, wherein the judicial power of the People may be exercised directly by Parliament according to law’

Being inclusive is an essential criterion of any Governance. Those who seek the benefits of Democracy have the responsibility to  facilitate ‘privacy’ for independent individuals and communities.  The Sri Lankan Judiciary failed to show recognition of such values at least through informal forums, in the case of the Tamil Community.  Each time the Government acted in breach of such democratic principles the Judiciary could have written about it beyond their official structures and platforms.  Following is an excerpt from my book in relation to this: ‘Why is it important to identify with myself as Australian? To me it is when I feel Australian that I would connect more easily to others who believe they are Australians – without needing to be ‘told’ by others. Once connected,  we mutually benefit each other. Given that as per my estimate as well as Australian records I have accumulated net positive value as an Australian – it was good for Australia that  I felt  Australian.  In Sri Lanka at the height of Government action against Tamil rebels, we were often stopped on the road and questioned. During those times, I would consciously seek the blessings of Lord Buddha – in my belief that that would be an easier connection for the Sri Lankan Army officers to make – given that most of them were Buddhists. Similarly, when confronted by rebels I talked about my Administrative Service in Vanni (Tamil Rebel Area) – through the UNDP. I was genuine in all instances because I connected to them through my Truth to match their need of the moment and no more. I believe that I allowed my faith and belief to grow naturally on the basis of my Truth. As much as possible I followed the common culture of my environment. Once I felt I had reached the maximum point at which that common culture was being practiced, I was ‘free’ and was beyond the borders of that culture and yet taking the essence of it with me. The form from then on was mine as per my Truth. That form is my identity as per myself.   Those to whom this identity is important would tend to ‘fight’ for it anyway they can.’

The identity of the Judiciary is now being challenged. When the Judiciary is able to rely on its own judgments of itself – it would naturally get cured of its anxiety. Towards this the impeachment matter has been a positive opportunity for the judiciary as a whole. The opportunity taken as a whole  is for the greater good of Sri Lanka.

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