| by Kishali Pinto-Jayawardena

( April 27, 2014, Colombo, Sri Lanka Guardian) These are extraordinary times. Victory in a war that many thought unwinnable, the utter decimation of the traditional political opposition and the formation of an authoritarian family cabal with an unprecedented centralisation of power has grossly subverted Sri Lanka’s political process. The utter degeneration of the judicial system and the authority of the law is one inevitable result.

Our past silence and present travails
Yet as this column has repeatedly pointed out, the rapid decline in our legal and judicial institutions became publicly apparent before this administration came to power. The open politicisation of the Supreme Court and of the Office of the Chief Justice became pronounced in the time of a former President Chandrika Kumaratunga even though this was disregarded by a Bar too cowardly and obsessed by self-interest to grasp the nettle by the hand. Indeed, as Kumaratunga now bewails (rightly) attacks on religious minorities, she may reflect on her own role in bringing about the collapse in the integrity of Sri Lanka’s judiciary.

These are appropriate reflections for us as this country is catapulted into harsh international scrutiny on accountability and the Rule of Law. Thugs roam the land brandishing pistols (toy or otherwise). Rampaging monks use the name of the Gautama Buddha to storm into press conferences and ministry premises threatening to kill fellow monks who espouse peaceful coexistence with religious minorities. A visitor who is a practising Buddhist sporting a tattoo of the Buddha is not, in the minimum, merely deported but hauled off to a deportation centre, kept with criminals and abjectly humiliated before being deported.

Particularly in the face of this impunity afforded to the Bodu Bala Sena (BBS), President Mahinda Rajapaksa’s proposal this week to set up special religious police units to deal with religious extremism should not calm apprehensions but rather, heighten them. In the current context, the possibility remains high that these ‘special units’ will join in with militant monks in their campaigns of harassment rather than the contrary.

Examples from India
In contrast, we see across the Palk Straits, the example of a functioning (albeit flawed) democracy at work. With the vast Indian electorate trekking to the polls, the debates are on substantive issues of governance. Its Elections Commissioner is no straw figure and its judiciary, not a political plaything. Just two weeks ago, the Indian Supreme Court delivered a seminal judgment (by Justice K.S. Radhakrishnan writing for the Court with Justice A.K. Sikri writing a concurring opinion) recognising the rights of the transgender community in that country.

This was in response to the transgender community seeking a legal declaration of their gender identity as differentiated to the one assigned to them, male or female, at the time of birth. Their prayer was that non-recognition of their gender identity violates Articles 14 and 21 of the Constitution of India. Hijras or eunuchs who also fall in that group claimed legal status as a third gender. In his ruling, Justice Radhakrishnan acknowledged that the transgender community has a strong historical presence in the Hindu mythology and religious texts. Interestingly, as he commented, the concept of ‘tritiya prakrti’ or or ‘napunsaka’ has also been an integral part of vedic and puranic literature.

A rich interpretation of the Rule of Law
As was pointed out, the liberal roles afforded to the transgender changed only with the advent of colonial rule and colonial laws which puritanically criminalised the transgender. Quoting international standards including the Yogyakarta Principles, the Court used rules of equality and non-discrimination as well as the right to life in the Indian Constitution to declare the rights of the transgender as a third gender. In his opinion, Justice Sikri made reference to a rich interpretation of the Rule of Law which has resonance for Sri Lanka in this fraught state that we live in. He observed that the Rule of Law is not merely public order. Instead the Rule of Law is social justice based on public order. The law exists to ensure proper social life and it is the Court’s duty to protect it.

India, unlike Sri Lanka, has not accepted the jurisdiction of the United Nations Human Rights Committee (UNHRC) under the Protocol to the International Covenant on Civil and Political Rights, providing Indian citizens and those living within the country to appeal to the Committee when violation of their rights occur. Though the Committee issues Views on such complaints, the implementation of these recommendations is entirely up to the government concerned. Not content with signing the Protocol and thereafter steadfastly refusing to implement any recommendation, we then committed the ultimate insult when the Supreme Court declared in 2006 that accession to the Protocol itself was unconstitutional.

The benefit of a wiser approach
The position taken by the Indian courts is in stark contrast. As seen in this latest judgment, the Court refers to international standards as persuasive and rules for a liberal interpretation of the Indian Constitution, relying on them. There is in actuality little need for India to accede to the ICCPR Protocol as the domestic courts have a vitality and strength of their own. Sri Lanka, in fact, possessed this same vitality in the functioning of its domestic judicial institutions during the eighties and mid nineties even though we do not have the right to life unlike in the Indian Constitution. As evidenced in India now, our judges too (then) quoted common international standards to improve rights.

And a point grasped by few is that even though Sri Lanka signed the Protocol providing access to the Committee in 1997, very few petitions were filed before the Committee initially as dissatisfaction with the local courts was not evidenced.

This changed several years thereafter when the complexion of the Court itself changed for the worse. Citizens who were given no relief by the Supreme Court started appealing to the Committee. The Committee’s responses were ignored contemptuously by the government. The rest is history. We are reaping its results now.

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