| by Kishali Pinto-Jayawardena
Courtesy: The Sunday Times 

( November 16, 2014, Colombo, Sri Lanka Guardian) In a impassioned KG Kannabiran memorial lecture delivered at Chennai last Sunday, Northern Chief Minister and former Supreme Court Justice CV Wigneswaran drew an unequivocal link between the subjugation of Sri Lanka’s judicial institution, (along with that often misunderstood, if not scoffed at term, the Rule of Law) and the plight of ‘Tamil-speaking peoples’ in the country.

The deprivation of constitutional rights
Featured prominently in the Indian media, this was perhaps one of the most highly visible public articulations castigating the Sri Lankan judiciary in regard to its contribution enabling the deprivation of constitutional rights. In The Hindu this week, veteran commentator K Venkataramanan headlined his thoughts on the Chennai lecture as ‘an appeal to India’s conscience’ (see, The Hindu, November 14th 2014). It seems peculiarly fitting therefore that a domestic reflection in these column spaces may be titled ‘an appeal to Sri Lanka’s conscience.’

Moreover as the role of the judiciary in regard to the minorities is addressed in this manner, we may also reflect on the sinister impact of that warning referencing the majority community.

Indeed, sentiments on this wider failure of the judicial role assume greater significance even as Sri Lanka’s Supreme Court hands down an opinion to the effect that President Mahinda Rajapaksa has no legal impediment under the 18th Amendment to contest the Presidential election for a third time. Arrived at through a process shrouded in secrecy, this opinion is as yet, unavailable to the general public. Sri Lanka’s political leadership seems to have progressed (or regressed as it were) from hiding reports of Commissions of Inquiry to hiding judicial opinions.

Amidst frantic cries of ‘mea culpa, mea culpa, mea maxima culpa’ on the part of those who contributed to this deterioration in no uncertain terms and who now strut unashamedly on the opposition stage, we need to reflect on what a lamentable indictment this holds out for us as a people.

Focusing on the legal rather than the political
Refreshingly, the Indian media has been quick to pick up on the harsh critique of the Sri Lankan judiciary in the Chennai text (see also the Weekend Leader, 10 November, 2014). Over here however and in line with the generally commonplace nature of things, reports in the print media have mainly reproduced media releases across the Palk Straits focusing primarily on the political aspects of the speech.

Yet putting aside the political thrust of the text for a moment, as difficult as this may be for excited Sinhalese nationalists, we need to direct ourselves instead to the sense of profound historical injustice and deeply poignant lamentation as to the lost value of Sri Lanka’s independence of the judiciary that emerges from this lecture. This is what should compel us to search our own consciences.

As discerning readers would see, the Chennai text locates itself firmly within the systemic failure of Sri Lankans institutions. It calls for serious reflection on the same. This is entirely explicable from a former Supreme Court Justice who was characterized throughout his period on the Bench by a refusal to follow the common herd. This stubbornness came to its own mainly during the turbulent times of the Sarath Silva Court (1999-2009) when he distinguished himself from more timorous souls by openly disagreeing with the judicial thrust of that Court. He was the only judge who, after his retirement, had the gumption to engage in a scathing newspaper interview where he spoke of the politicization of the judicial institution and in particular, the impact that this will inevitably have on junior judges rising through the ranks.

Asserting a stricter standard as to the PTA
The other characteristic was his insistence on working within a jurisprudential framework to assert the importance of rights. In the Kannabiran lecture for example, he mentions Theivandran’s Case (SC Appeal No 65/2000, SCM 16.10.2002). This is a decision which, in fact, marks a singular point in the Court’s jurisprudence. Here, there was a sharp division of judicial opinion on the question of the admissibility of confessions under the Prevention of Terrorism Act. Referring to the PTA as a ‘special politically motivated law’, Justice Wigneswaran (as he then was) wrote a 26 page opinion which asserted that confessions cannot be solely sufficient under the PTA to convict an accused in the absence of corroborative evidence.

This was at a time when the Court functioned with the tug and pull of juristic dissent quite unlike now. All three judges in that case agreed that on the facts of the case before Court, the confession in issue lacked ‘congruity and consistency’ and therefore, that the conviction must be set aside. However the other two Justices, the late Mark Fernando and Ameer Ismail declined to agree with what they saw as an unacceptably broad legal principle.

It is a good question for consideration as to whether, if the Court had taken a collectively strong stand on this matter at a point when we had a functional justice system, we may have contained the heedless abuse of the PTA under which people are unlawfully detained for years without a proper legal basis.

Presents a stark contrast to current political crudity
Above all, last Sunday’s measured Chennai address presents a stark contrast to the crudity and crassness that passes for Sri Lankan politics today. It also differentiates itself from radical departures favored by some Tamil ultra-nationalists who prefer to engage in rants against majoritarian politics and proclaim openly that the Tamil-speaking minorities do not need to engage with the dysfunction of Southern institutions.

Needless, to say, these rants do not lead to any sensible outcome. Nor do they, quite understandably, find any resonance with the thinking of many Sinhalese (not necessarily only those scornfully labeled as liberals) who acknowledge that we face a serious deficit of justice. In the final outcome, Sri Lanka’s future lies in a common identification of this problem and in working together to provide remedies. That much remains indisputable.