| by Kishali Pinto-Jayawardena
( February 2, 2014, Colombo, Sri Lanka Guardian) It is a favorite argument of the cynical minded among us that Sri Lanka never had a functional system of law in a manner which actually served the people. This argument may have its adherents and its critics. Indeed, radical theorists would argue that the role of the law and the courts is at the best, only limited in its impact and that the framework of social justice encompasses far more than judgments of courts or provisions in statute books. This critique too would be right but only in part.
A system of ‘non-law’
As a norm, the role of the law is powerful though the aim of political leaders all over the world would be to devise imaginative ways in which to bypass that norm without appearing to be too crude about it. The United States, in that sense, offers us the best example in the manner in which old engrained of life, liberty and happiness have, in the name of the war against terrorism, been whittled down to the extent that its people no longer care if their private correspondences are being interfered with sans adequate judicial oversight and public openness or if their government invades other nations with contemptible scorn for principles of international law. This theory of the equality of the law that we hear so often articulated as the norm is, of course, a myth, among nations as well as within nations.
Despite all this, it has also been understood that people in democratic nations will tolerate only to a point. This is why, for example, the US President recently addressed his people by engaging in painful justifications as to why his administration was compelled to spy on its own citizens. These justifications may be tortuous and even bordering on being disingenuous. But the point is that they are made for important policy reasons that are to do with the democratic acceptance of his government.
This is what distinguishes functional states from dysfunctional states. And the role of the law in that regard assumes great importance, despite the flawed nature of its equitable implementation. When countries disregard these imperatives, a state of ‘non-law’ comes into being. Sri Lanka is a classic example of this peculiar state.
Games of tit-for-tat?
This week, Sri Lankans were privileged to hear that the Principal of the country’s Law College who was summarily sacked for what is mysteriously termed in public as ‘examination irregularities,’ the nature of which is familiar to any person with a nodding acquaintance with the legal sphere, has been appointed as the Legal Director of the Presidential Secretariat by President Mahinda Rajapaksa (see Daily Mirror, February 1, 2014).
Piquantly, this appointment was made amidst a well publicized media blitz by those responsible for governing Law College that there would be stringent reforms of the administrative structure of this institution. As a wit marked in passing, this was something akin to locking the stable doors after the horses have bolted. The focus ironically enough is on those lecturing at the College, with new examination and marking procedures that would appear to be highly impractical in their implementation. But as we should well remind ourselves, the origin of this furore was elsewhere.
The immediate issue certainly was the allegation that the sacked Principal had engaged in nepotism. Yet even preceding this, ugly rumors circulated during his term regarding the manner in which the Sri Lanka President’s own son had passed the Law College examinations. And regardless, if allegations are made, they must be fairly inquired, made open to the public and concluded with propriety. Yet, this is not the case. Instead we have interesting games of tit for tat; an individual is sacked for alleged irregularities and is then employed elsewhere with a blinking of an eye. This indeed is a good case of the institutional breakdown that this country faces where the law as a norm, is openly and defiantly flouted.
Legal professionalism cannot operate in isolation
That said, the concerns that occupy those at the helm of the judiciary regarding the deterioration of professional standards in the legal profession which, as has been opined, must be addressed through reform of legal education, would be hilarious if it were not so nonsensical. One might well ask the question as to how can there be professional standards in a context where the sitting head of the judiciary is dragged out like a common criminal, brought before abusive parliamentarians and tossed out of office without so much as a bye your leave?
And how can professionalism be maintained when judges who deliver orders according to law are given threatening calls by thugs operating at the bequest of politicians? Or indeed, when murderers and rapists roam free under the patronage of the political hierarchy? Is professionalism of lawyers to be pursued as something isolated from the culture of despicable politicization that has corrupted our systems to the extent that the law is no longer workable in a fundamental sense? And what can be said indeed, of the integrity, independence and capacity of the other parts of the legal system, including the judiciary?
Not merely of domestic concern
In sum, the dysfunction affecting Sri Lanka’s legal and justice institutions and the now quite evident degeneration of the Rule of Law is a prime reason why this country is under international scrutiny. The issue is not one of mere domestic concern. The distractions of international war crimes inquiries are only a part of the picture.
That much must be clearly understood.
(The writer is a columnist with the Sunday Times, based in Colombo, where this piece was originally appeared)