| by Kishali Pinto-Jayawardena
Courtesy, ‘Focus on Rights’ The Sunday Times

( September 21, 2014, Colombo, Sri Lanka Guardian) The twin elements of a properly functional judiciary and police distinguish a democracy from barbaric regimes. Surely there can be little argument about this fundamental principle.

But Sri Lanka fares ill on this unyielding measure. We see this most recently in regard to the Uva provincial council polls marked by unsettling pre-poll violence and the palpable inability of election officials together with the police to carry out their statutory functions. These are ominous signals of worse to come as the county faces national polls next year, quite apart from who wins or loses this Saturday.

Police as ‘prisoners of war’

Interestingly there is increasing public notice of the plight of the Department of the Police due to rampant politicization. The 'Focus on Rights' column on the Uva provincial polls being more of a battlefield than an election (the Sunday Times, August 31st 2014) has provoked unusually trenchant agreement. Retired Deputy Inspector General of Police (DIG) Rohan Abeywardena’s identification of the Inspector General of Police (IGP) and his officers as ‘prisoners of war and made to work as such’ (the Sunday Times, Plus 2, at page 5, September 7, 2014) is a case in point, which inadvertently missed specific acknowledgement in these column spaces immediately thereafter. This is a colourful albeit highly disturbing analogy.

Former IGP Frank de Silva’s pinpointing of the ‘precarious’ situation of the police functioning under the ‘administrative authority and control of a political appointee, the Secretary, Defence’ (the Sunday Times, Plus 2, page 10, September 14, 2014) is another excellent illustration.

These reflective points of view merit serious public consideration. As categorically pointed out by these retired senior officers, the Department of the Police has to be de-politicised. Its professional command structure needs to be restored forthwith. This was also what the Lessons Learnt and Reconciliation Commission (LLRC) called for in vain.

Undermining judicial honour
And what pray of the judiciary? In discussions last month in Hambantota with senior provincial lands administration officials struggling to properly implement the law against coercive political patronage, uproarious laughter erupted when the role of the Sri Lankan judiciary at the very highest levels came to be discussed. Accustomed to mutterings on the subversion of the judicial function rather than outright public condemnation, this reaction took me somewhat by surprise.

Mortifyingly, the selling of judicial honour for a veritable mess of pottage now appears to be a matter of common knowledge, from the vegetable seller to the public servant.

Granted, the institution of the judiciary has never been free from controversy. Post independence, our judges should have been far more courageous in asserting their constitutional role. And the much maligned framers of the 1978 Constitution were not the only ones to blame. Rather, the leftist coalition engineering the 1972 Constitution paved the way for the disasters that followed. This is a fact that is conveniently lost sight of when annual commemorative ceremonies are held for renowned leftist theoreticians. Blame must be portioned in this regard in fair measure.

Upholding the integrity of the judicial institution

But with all these constraints, judges struck back at the political establishment with faultlessly reasoned judgments even during the darkest times. Upholding of the integrity of the judicial institution remained of paramount concern even though judicial realists may shrug at the very notion of the judge as an independent arbiter.

It was precisely for this reason that this column was unrelentingly critical of the Sarath Silva Court (1999-2009). As Justice CV Wigneswaran assessed the matter in an interview given to a weekly newspaper just after his retirement (‘Justice on a Razor’s Edge’, Dharisha Bastians, the Sunday Leader, 31/10/2004), ‘errant politicians and policemen who should not have received any patronage from the judiciary were perceived as important persons and original court judges (were) compelled to comply with orders illegally issued to protect or pamper such errant offenders.’

These are matters of recorded history as is also the monumental failure of the Bar and the legal academic community to speak out at that time.

Judicial appointments on merit

Yet it would be unforgivably naive to think that the problems arose and would fall away with one individual. The succeeding decade taught that lesson very well. The Court remained mired in political controversy culminating in the impeachment of Chief Justice Shirani Bandaranayake even as bare-bodied ruffians danced outside her official residence. And ten years later, we find Justice Wigneswaran’s prescient warning in 2004 that ‘the judiciary must not be filled at its higher echelons with executive-pliant officers who have had very close relationships with the executive and the legislature’ to be excruciatingly relevant, more so than ever before.

Last week, President of the Bar Association Upul Jayasuriya stressed that judicial appointments should be made on merit and seniority. The bypassing of Court of Appeal Justice Anil Gooneratne (who had served for more than seven years on the Bench) in the reported appointment of a new President of the Court of Appeal was a primary factor in this respect.

Justice Gooneratne, along with the late Justice Sri Skandarajah, were signatories to the Court of Appeal decision quashing the proceedings of the Parliamentary Select Committee on the 2013 impeachment of Chief Justice Bandaranayake. Justice Sriskandarajah was likewise overlooked for promotion prior to his untimely demise. As much as honourable policemen cannot survive within the system, honourable judges face similarly agonizing dilemmas.

Corrosive politicization of systems

Whether it is the police or the judiciary in issue, the corrosive politicization of national institutions has now been taken beyond the heights of imprudence

Appeals to President Mahinda Rajapaksa whose administration cynically engineered the complete negation of the 17th Amendment are likely to be of little use. The task of reversal thereto in a constitutionally workable manner lies in the hands of Sri Lankan public opinion. Politicians of whatever colour will not do this of their own accord, naturally.

Our failure to do so, even at this late stage, can only be of dire consequence.