| by Kishali Pinto-Jayawardena

( July 20, 2014, Colombo, Sri Lanka Guardian) The Government’s boast this week that the Colombo High Court’s conviction of a local authority chairman and three of his henchmen for the 2012 Christmas Eve murder of a British tourist and the brutal rape of his girlfriend ‘proves’ the independence of Sri Lanka’s judiciary is grossly inappropriate in the context of the case.

Coyly protesting innocence

The murder of Khuram Shaikh and the rape of Victoria Alexandrona occurred directly as a result of the licence given by this Government to provincial thugs masquerading as local politicians. The former head of the Tangalle Pradeshiya Sabha sentenced to twenty years rigorous imprisonment terrorized the locals by emptying automatic weapons into the air as if they were firecrackers and took murderous exception to a tourist’s challenging of his authority. In similar vein, a ‘Mayor’ of Hambantota roamed the city carrying a pistol with which he threatened opposition parliamentarians. He was not, in the minimum, questioned as to why he was endangering public safety.

This is the culture of savagery for which the Government is responsible. It cannot hide behind one singular verdict and coyly protest its innocence. These claims are good only for the credulous.

In fact, enormous skepticism evidenced by many in the wake of this verdict only indicates the erosion of belief in the impartial process of justice. This is where the danger lines are drawn, when the public cynically ceases to believe even in the idea of justice. The post-verdict focus has been on the comfortable if not luxurious lives that the accused in high profile cases enjoy behind bars, the appeals that would be filed and the possibility of presidential pardons at a point when international attention to the case is less.

This is all certainly speculative. But the post-war Rajapaksa Presidency has been marked by the repeated circumvention of the proper operation of the law through the device of presidential pardons. Therefore, such concerns cannot be easily dismissed.

Illustrating contrary policies

Indeed, this verdict does not showcase an ‘achievement’ of the Government but quite the contrary. What it illustrates is that in cases attracting extraordinary international attention, this Government allows the process of investigation, prosecution and judgment to continue unhindered. In the vast generality of other cases however, it mercilessly interferes for its own political advantage.

The Khuram Shaikh verdict therefore evidences one clear fact alone. Notwithstanding the tremendous demoralization of the Sri Lankan judiciary, there are honourable judges who act according to their judicial conscience when allowed to work properly. For that, these individuals should be applauded. By no stretch of the imagination however can the Government claim credit.

In fact, this claim gives rise to yet another pertinent question. Some time ago, the query was raised in these column spaces as to whether a victim in Sri Lanka needs to be a citizen of a foreign country in order to ensure that justice gets done? What if for example, an ordinary Sinhalese, Muslim or Tamil lacking protection of the few who control the affairs of this country had been the unwitting focus of fury by a misbegotten local politician strutting around in the power conferred on him by his political puppeteers? The likelihood of the case being swallowed up by laws delays, threatening of witnesses and prosecutorial lethargy is indisputably high.

So what does this say for us, for the status of the citizenship that we lay claim to?

Our record of politicized prosecutions
Listing instances of Sri Lankans suffering abuses including killings and rapes by ruling party politicians and their thugs would take far more space than the limited confines of a newspaper column. From a point in the past where the underworld existed at the bequest of politicians but was allowed to surface only exceptionally, we now have the underworld virtually at our doorstep. The courts and the law have been rendered silent in the process. And our record of politicized prosecutions only further illustrates the point. Two instances that immediately come to mind are the prosecutions launched against journalist JS Tissainayagam and former army commander Sarath Fonseka.

Moreover crowning the whole was the witch-hunt impeachment of a sitting Chief Justice pushed through against the express advice of the Court of Appeal and the Supreme Court. True enough, a Bench of the Supreme Court thought it fit to reverse the opinion of the Court a year later for reasons that will surely be subjected to devastating critique in the fullness of time.

Could this entire disgraceful episode be erased purely because of one verdict in the context of a prosecution framed and motivated largely by international pressure? One thinks not.

A touch of the macabre

So the boast regarding the independence of the judiciary gives rise to considerable merriment. Indeed, there is a touch of the macabre about this given that the head of the country’s Bar Association had lodged complaints with the police a few days earlier that he had been menacingly followed by motorcyclists. He had been tailed in the vicinity of buildings housing the Government’s elite and consequently in an area under heavy surveillance. Logically therefore the tracing of the individuals responsible should not be difficult. Logic however has little place in the scheme of things today.
The Bar Association’s warning on the growth of a crypto-military state in Sri Lanka and strong questioning of the authenticity of the inquests on the deaths of three Muslims following the Beruwala and Aluthgama communal violence are distinguishing factors. The shadowing of individuals has long been part of an unnerving pattern culminating in killings which still remain unsolved decades later. This is also part of the culture of savagery which continues to hold post-war Sri Lanka tightly in its grip.

Rest assured therefore that one verdict does not secure the independence of the judiciary akin to Aristotle’s caution which, as we may recall, was to the pungent effect that one swallow, a summer does not make.

Excerpted from the ‘Focus on Rights’ column in The Sunday Times, 20th July 2014 for which newspaper, the writer is a legal consultant/columnist.