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

( October 5, 2014, Colombo, Sri Lanka Guardian) In these perilous times, Sri Lanka faces possibly its severest test of democratic strength since the granting of independence. A dearly loved judicial philosopher in the United States, the late Judge Learned Hand (1872 –1961) said it best when he warned that ‘liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.’

Need for grit and courage

Has liberty died in our hearts and minds? This is a relevant question even as we draft new constitutions and solemnly raise points of law which seems radically amusing given that the very independence of the judicial function which is supposed to adjudicate on these matters has been dangerously compromised.

True, the Uva election results demonstrated clear dissatisfaction with government policies by the rural Sinhala-Buddhist heartland of the Rajapaksa administration. But grit and courage have to be shown by Sri Lankans across the country in taking that momentum forward with national elections looming in the months ahead. Otherwise, this will be a mere blip on the radar, signifying a particular singular moment rather than a substantive change in direction. 

How and in what way we should propel such change? This needs to be discussed as we look in utter consternation at what is unfolding before us. Take the events of the past few days for instance. Seething controversy of the crudest kind swirls around recent appointments to the Court of Appeal. Merit-worthy senior judges with experience on the Bench are passed over for officers from the Department of the Attorney General with the Bar Association questioning from President Mahinda Rajapaksa if the government wants only executive-pliant judges packing the judiciary. Indeed, this question may have been better phrased by the Bar in the form of an unequivocal statement, given the profound contempt shown by this Presidency for the independence of the judicial institution.
What protection can minorities have?

In abrupt contrast, a towering figure of political strength in Tamil Nadu and its erstwhile Chief Minister was jailed by a judicial order over corruption charges. Sri Lankans who pride themselves in burying their heads ostrich-like in the sand should ask if, by any stretch of the imagination, such a judicial order could have been delivered against a local political heavyweight. This country’s 43rd Chief Justice who was chased out of office in 2013 realised the painful cost of taking such a stand only too well.

And in a context where a Sinhalese journalist was beaten with impunity by government goons for merely engaging in election reporting, what protection can minorities have despite yet another Presidential Commission inquiring into war-time abuses? Post-war, Tamil citizens continue to be imprisoned without charges being brought against them in what is a categorical failure of justice. Muslim citizens continue to be at the mercy of radical Buddhist monks. Innocuous training workshops for journalists are prevented by mobs. This is the precise nature of the beast that we confront.

The degeneration is visible at every level. Witness this week’s unholy fracas when Sri Lanka’s High Commissioner to the United Kingdom who was previously singing hosannas to the government alleged that he was mercilessly assaulted at an overseas public function by a Rajapaksa-appointed so-called monitoring parliamentarian. This incident is all the more shocking as it involved the country’s diplomatic service from which surely, a greater degree of polish is expected as opposed to a Mariyakade brawl.

The Presidency cannot profess bright-eyed innocence

Fervent appeals to the Office of the President to set matters right must be stopped. Let it be said again that these are not matters that the Presidency can stand aloof from, protesting bright-eyed innocence. On the contrary, these events are brought about by the very nature of the administration that President Rajapaksa runs. This is very evident.

So we return to the public role in propelling change which must stand free from influence exerted either by the government or the opposition. It is heartening for instance to see several senior retired police officers continuing to reflect in the pages of this newspaper on the plight of the police service where the police command structure has been replaced by political direction with catastrophic results.

Even as Sri Lanka’s diplomatic representative was (allegedly) assaulted in New York, an equally brutal police assault was carried out on a woman in broad daylight in Ratnapura. The offending police officer has been interdicted. But the impunity with which all these incidents take place teaches us a broader lesson. Perpetrators engage in these acts because they are confident of being politically protected. A mere interdiction of one police officer or the promising of an inquiry by the President into how his High Commissioner was (allegedly) assaulted by his monitoring MP is therefore woefully inadequate. The malaise is far more serious. Hence its treatment must also be far more radical. It must go to the core of the Presidency itself.

A complete lack of honesty

This week, jurists of the United Nations Human Rights Committee meet to discuss Sri Lanka’s fifth State Report submitted in terms of the International Covenant on Civil and Political Rights. Demonstrable flaws in this Report have already been broadly discussed in a previous column (see Focus on Rights, 14th September, 2014).

The Report is distinguished by a lack of honesty and indeed, of capacity. It contains patent errors of law which still need to be dissected in detail. If a quarter of the massive resources spent on 'outsourcing' propaganda is directed towards substantive changes in policy and practice with appropriate responses carefully formulated therein to the international community, our situation would not be so dismal. 

Instead, we cower behind lies while ‘diplomats’ head butt each other like common thugs and Sri Lanka is reduced to a veritable laughing stock in the eyes of the world. Is this what we deserve post-war? Surely not.

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