Wearing Sackcloth And Ashes As We Apologize

| by Kishali Pinto-Jayawardena 
Courtesy: The Sunday Times, Colombo 

( October 19, 2014, Colombo, Sri Lanka Guardian) Piquantly enough, this seems to be the week of apologies and confessions for Sri Lanka.

First, we witnessed the nationalist Jathika Hela Urumaya parliamentarian Rathana Thero’s confession in his capacity as convener of the Pivithuru Hetak (For a Better Tomorrow) movement, that it was wrong to have supported the 18th Amendment to the Constitution.

This was followed by ex-Chief Justice Sarath Silva apologizing for judicial decision-making on his part in 2005. This somewhat cryptically worded apology at a meeting of a political party was later explained to the British Broadcasting Service’s Sandeshaya programme as specifically applicable in regard to the Helping Hambantota case where he exculpated then Prime Minister Mahinda Rajapaksa of massive corruption alleged in regard to the receipt of tsunami funds.

Mistakes that changed Sri Lanka’s legal landscape

Perhaps one should not cavil at these apologies in a land where public apologies are woefully scarce. After all, these confessions are not akin to those which have been dragged out of tortured detainees, more often than not of minority ethnicity, under the much maligned provisions of the Prevention of Terrorism Act (PTA, 1979).

Nor are they similar to the blubberings of a terrorized public officer tied to a tree and beaten by a Minister but who famously confessed that he was at fault rather than castigate the Minister despite the fact that the Minister concerned belonged more in the wilds of Mahiyangana rather than in the Cabinet.
As distinguished from such plebian happenings, what we have here are the apologies of a prominent monk of a constituent partner of the ruling alliance as well as by an ex-Chief Justice which we may presume, have been freely and voluntarily made. Sarcasm aside, if one hearkens to magnanimity, it may suffice merely to add an acid rider that these are not the only actions which must be apologized for by these two worthies.

Yet the need for cleansing of Sri Lanka’s eminently hypocritical public culture demands a little bit more than a casual chance remark. Indeed, the imagination must surely boggle at the ease if not the apparent spuriousness with which apologies have been issued for such awfully gargantuan mistakes which have irreversibly changed the course of Sri Lanka’s political and legal landscape.

More penitence and contrition needed

The 18th Amendment was not a mere passing constitutional fancy (for example) to change the colour of the dress that parliamentarians wear. Rather, it led to the radical reshaping of Sri Lanka’s constitutional systems, throwing the country back decades in progressive time. It effectively reduced the 17th Amendment, possibly the most well intentioned constitutional amendment in post-independence history, to cowed silence. It took away the Constitutional Council and replaced it with a paltry Parliamentary Council which could not say boo to the proverbial goose quite apart from disagreeing with the Executive President.
And worse of all, it enabled an authoritarian if not monarchic Presidency to install itself for life. Precisely what did its erstwhile supporters think it would do other than bring about this most predictable constitutional instability?

Certainly those who agreed to the 18th Amendment should not be allowed to rest content with just an apology. Instead, as has been the practice of old in religious orders, such penitents should wear sackcloth and ashes in public. This injunction applies to onetime government stalwarts who wrote copious reams about the un-workability of the 17th Amendment. Now, having fallen out of favour, they occupy themselves in casting bitter – and wholly ignored - animadversions on the folly of the Rajapaksa Government in making Sri Lanka’s foreign service the butt of all jokes.
Where does one go to when the Court is ‘mistaken’?

And then we come to the Helping Hambantota case where ex-Chief Justice Silva has expressed contrition for clearing then Prime Minister Mahinda Rajapaksa of allegations of misappropriation and enabling him to contest the Presidential Elections.

As has been reported, this is the first time that a former Sri Lankan Chief Justice has aplogised for a judicial decision. Perhaps it may be added that this is also the first time that a one-time Chief Justice has thought it fit to adorn a political stage. But we are past that stage of incredulity certainly where this particular ex-Chief Justice is concerned.

Amusingly enough, ex-Chief Justice Silva goes so far as to state that he did not entertain a ‘presumption’ as to the corrupt tendencies of the (then) Prime Minister but that he has had occasion to revise this opinion after seeing rampant government corruption now. And one can only attribute a worrying lapse in memory to his further claim to the BBC that, apart from the Helping Hambantota decision, he had faced no criticism with regard to other verdicts he had delivered. On the contrary, criticisms of judgments delivered during his tenure were unprecedented in Sri Lankan judicial history. As this ex-Chief Justice who has become a tad touchy to public criticism after entering the political cum public sphere must surely acknowledge, two impeachment motions were presented in Parliament against him precisely on that basis, citing allegations of judicial bias and abuse.

Ironic debates surrounding the 18th Amendment

Moreover this apology raises a larger question as to what a hapless Sri Lankan citizen can do when mistakes of such a nature are made by the apex court. This has become a particularly important question for us as the judiciary continues to be plagued by political controversy which has only aggravated in recent decades.

At one point, Sri Lankans had the option of at least having jurists of the United Nations Human Rights Committee examine decisions of the Supreme Court to see if they secure peoples’ rights in terms of Sri Lanka’s own international obligations. This was in conformity to earlier enlightened precedent on the part of highly respected Sri Lankan judges which took international juristic opinion into consideration if this enhanced the domestic rights of citizens.

However, the 2006 ruling in the Singarasa Case presided over again by ex-Chief Justice Sarath Silva that the Committee process was unconstitutional on unsound judicial reasoning that the Committee exercised judicial power within Sri Lanka has put paid to this option. Perhaps we may hear the ex-Chief Justice apologizing for this decision as well at some point. Sri Lanka began to come under the international legal spotlight for its domestic non-compliance exactly from this point onwards.

Paramount to address the degeneration of justice

All in all, there is an undoubtedly ironic flavor to the current controversy surrounding the legal propriety of President Mahinda Rajapaksa seeking a third term given that the initiator of this controversy now apologises for a costly mistake which he made almost a decade and a half ago in bringing a Presidency tainted by corruption into office.

But as we solemnly discuss the lack of constitutional viability in arguments urging the retrospective applicability of the 18th Amendment, the overall point is greater than this. As any legal practitioner worth his or her salt well knows, points of law and opinions thereof are infinitely varied in their scope and applicability. Indeed, equally skilful arguments may be made using the law to benefit two completely opposing sides. In similar vein, Constitutions may come and go but if there is no public belief in the constitutional process as well as in the independence and integrity of judges who ultimately decide the interpretation of the Constitution, then there is little point in the exercise.

No better example illustrates this reality than the fact that two opinions of the appellate courts declaring that the impeachment of Sri Lanka’s 43rd Chief Justice was unconstitutional were reversed by a Bench of the Supreme Court on diametrically opposite legal reasoning a year later.

So as the sound and fury of legal debate echo around us, one may be forgiven for being a tad cynical thereto. For close to a decade and a half, this country has seen the rapid and ruinous degeneration of the law, the judicial institution and the very value of the Constitution itself. Those responsible in the judicial fraternity for this decline since 1999 are many. A solitary apology for a solitary decision by a solitary ex-Chief Justice scarce meets this profound deficit of credibility. As far as the general citizenry is concerned, complex points of constitutional law can only be secondary to the public acknowledgement of the extreme politicization of Sri Lanka’s judicial and legal systems followed by full and frank discussion as to the manner in which the integrity of the systems may be restored.

In the spirit of things therefore, (and one is being only partly satirical in saying this), a collective apology may be issued by judges and lawyers who not only acquiesced in the obscene subversion of the law but actively connived in particular political climates favourable to them when politicized judgments were delivered.

It is particularly preposterous that some of these very individuals are foremost among those advocating good governance today against the ravages of the Rajapaksa Government. Others rushed to get Presidential appointments to unlawfully constituted commissions monitoring human rights, the police and the public service even as the 17th Amendment was being ruthlessly cast aside.

Preventing anarchy in our midst
We may therefore look forward to that great day where more and more apologies are delivered for actions that have ruined this country. Again only half satirically, we may also look forward to a collective cleansing in sack cloth and ashes appropriately perhaps on Galle Face Green as we lament what we have reduced ourselves to and the torment that we have subjected the majority and our minorities to.

Such a holistic healing may accomplish far more than all the draft Constitutions which we see floating around or indeed, the solemn adjudication of points of constitutional law that we are so adept at. Let us have a little homespun honesty even at this stage.

Perhaps then, ordinary Sri Lankans who remain caught in the vicious pincers of the utter collapse of our legal, social and economic systems may refrain from stoning our courts, our business places and our institutions when anarchy erupts. Or at least we may hope this to be the case.