ST. THERESA’S IS AN orderly place. It is immaculately kept, it is quiet, and it is calm—cut off from the grit and noise and commotion of the city by the churchyard and a row of old trees. If you sit among the pews or walk in the aisles, the walls and the arches above—whitewashed and gleaming—provide protection, an enclosure. Enter St. Theresa’s and you belong to an ordered world. This, surely, is one reason many of the well-to-do in Colombo favor it over dozens of other churches.
In religion there is order. The saints, if a given religion has saints, are honored. There is scripture, there is a way to live—a tao, as the Chinese call it, a way—and there is an explanation of things: all things, for everything is explained.
It is the same with ethnicity. When thinking begins with one’s blood and the blood of others, there is order, logic, a system. Things are in their places, or at least there are known, understood places where they should be.
At this point Sri Lankans are practically obsessed with order. Surely this helps to account for the consciousness of religion and ethnicity that is so pronounced among them. Order is also given a very high value in daily life. A fashionable restaurant or shop in Colombo is, before it is anything else, an orderly restaurant or shop—and the more fashionable the more orderly, for order has taken on the value of a style, a cultural value. To be orderly is to be modern, to be disorderly is to be somehow less than modern. To be orderly is to reference some mode of existence beyond Sri Lanka. It is to be sequestered from the surrounding disorder—to be above it, to proclaim an immunity, a superiority. Driveways leading to the better houses in Colombo are exceptionally orderly—well-swept, rows of potted plants lined up just so—even if (or especially when) they give onto a messy street. It is the same with the narrow lanes off the main thoroughfares. The further into the lanes one goes, often the neater, the more appealing, and the more orderly the neighborhood becomes. The good life consists partly of success in keeping order in one’s surroundings.
It is interesting to study the architecture in Colombo while walking or driving through the city. There are many good examples (and some awful examples, it must be said) of contemporary ideas and technique. There is also a lot of colonial-era architecture, some of it very attractively maintained. Taken as one, however, what one sees in the architecture of Colombo and the towns surrounding it is dissonance. There does not seem to be any planning, any consciousness of the whole. There is no considered relation between one thing and the things next to it. This is not a problem peculiar to Sri Lankan cities by any means, but Sri Lanka presents an extreme case. This building or that might be cleanly designed and well-managed, but it is unlikely to register recognition of anything beyond its garden wall or the end of its driveway.
Order in Sri Lanka is a private matter. A Sri Lankan maintains order in his or her daily life—in the household, the garden, the office, the social arrangements, the churchgoing, and so on—but it is at the boundaries of these things that order ends. There is little public order, only a series of private orders. There is religion and there is a consciousness of ethnicity, and, more and more, these are being imposed as the basis of public order. But they do not work in this way. So at some point Sri Lankans appear to have given up on having any truly public order.
Saminda, for example: He was full of regret about the disorder in daily life, but he looked upon it from a certain distance, with the assumption that it was someone else’s disorder—a separate matter he was not part of and that was not part of him.
There are limits to private order, of course. If there is no public order to support it, this kind of order is finally an illusion, and it becomes a ceaseless, losing battle to maintain it. As in the case of the architecture, people can build all the order and design they wish in their private lives, but it will never bring order and design to the society, the whole.
It is the same with individual dignity. I once watched an office girl crossing a Colombo street that was treacherous with traffic. It was lunch hour, and I was in a tuk-tuk stopped at a traffic light. The girl had a notable dignity: erect carriage, a steady gaze, a fashionable dress, and, most noticeable of all, stylish high heels. And there she was, doing her best in her heels to make her way through mud, bits of garbage, and a potholed street, only to cross from one crumbled sidewalk to another. Dignity is most clearly manifest when it is most assaulted. And this is Sri Lanka: blessed with many dignified individuals, all surrounded with countless large and small indignities—the indignity of a crumbling street, the indignity of a crumbling system.
THE SOURCE OF ORDER in any modern society is the law. This is perfectly elementary. Custom, tradition, precedent, “the way we do things here”—all of these contribute to order, some more than others, more in pre-modern societies than in modern societies. But all of these things are ordinarily reflected in the law, or else the law supercedes them. In British law precedent is the law. But it is as modern, public law that precedent, “the way we do things,” provides order.
For a long time law has played an important psychological role in Sri Lanka. So long as there was law—the elevated notion of law Sri Lankans entertain—one could believe there was a measure of order in society. During the 1970s and 1980s, when institutions were beginning to fail, parliament was shunted off to a swamp outside the capital, and corruption and violence and the threat of violence were growing like a tropical vine around practically everything, one could still believe that the system had the capacity to self-correct because the law was intact. This belief in self-correction was essential because it enabled Sri Lankans to go on creating their private orders while assuming that public order would, or at least could, be restored. The disorder was not total, to put it another way.
The result has been the creation of an unhealthy dependence, a psychological dependence that has fed upon itself and is proving, finally, self-defeating. Sri Lankans needed to continue believing in law, and more precisely the public character of law, exactly to excuse themselves from the obligations of citizens—civic beings. The law is eternal. It has always been there and will always remain. No one need attend to it. So went the narrative attaching to this psychology. It is important to understand this, because it explains the shock many Sri Lanakns received when they were finally confronted with the reality that the legal system was in a condition no less dire than any other national institution. It also explains why many other Sri Lankans remain blind to the true condition of the judiciary. Psychologically speaking, it is simply too much to accept.
In the end, this psychology has lent law a peculiar, possibly singular role in Sri Lanka. It is among the country’s great paradoxes. To put a complicated history very simply, the high regard Sri Lankans have traditionally had for law has made it the perfect instrument for the creation of public disorder in the interest of political gain.
Here we return to Saminda’s notion of politicians with “the liberty of a wild ass.” Ceylon had been left with a more than decent constitution at independence—the Soulbury Constitution, so named for the British Conservative who oversaw its drafting over a period of several years. It was certainly its best constitution to date and, removing the question of its origin, worthy material for alteration. It addressed numerous of the new nation’s problems, including its communal problems, and provided for the independence of an already strong public service—the bureaucracy, the police, the judiciary, and so on.
Destroying the independence of these institutions was the true prize of the 1972 constitution, the autochthonic, “home-grown” constitution. Overnight, all important aspects of the public service—appointments most of all, but also disciplinary control, transfers, and the like—came under the cabinet’s purview. Everything was “politicized”—that favorite term among Sri Lankans. All power was political power; disinterest, so essential to the proper operation of the law, disappeared as a public value. There is a straight line from the ethos enshrined in the 1972 constitution and its logical (or illogical) extremes: political goon squads implicated in politically motivated murders, disappearances, rigged elections, destroyed careers, frame-ups, acts of revenge, an assortment of petty crimes, and so on—all of which typically involve the holders of public office and not infrequently the holders of senior positions in government.
The government that was elected in 1977 created a new constitution in which the centre of power shifted to the executive president. It was a complete reversal of the system that was introduced through the first constitution at the inception of independence in Sri Lanka. In the early years of this constitution many legal scholars mistakenly thought that this constitution would restore the independence of the judiciary, which was initially undermined by the 1972 constitution. In fact the new government, in its campaign for election, had promised as much. The drafters of the 1978 constitution, which is referred to by many as a tailor-made constitution to suit the requirements of the executive president, J.R. Jayewardene, were careful to keep the normal constitutional jargon regarding the independence of the judiciary.
However, the very core concept of the constitution was to place absolute power in the hands of the new president. And that was incompatible with an independent Supreme Court.
One of the common regrets later on among many lawyers and intellectuals was that they were unable to perceive early the dangerous power scheme of this constitution. Many even believed that J.R. Jayewardene, who had been educated and brought up within a liberal democratic framework, would go so far as to abolish that framework altogether. Regret about a misplaced trust forms part of the recollections, the memory, of many who talk about this period. Among these, one who regrets the past most was an old friend of Jayewardene, who accepted the post of chief justice. Neville Samarakoon was a queen’s counsel, a Q. C., and one of the most prominent civil lawyers of the time. His life turned into a tragedy because he was unable to read properly the scheme of authoritarianism that his friend, the president, was embarking upon.
There have been attempts to restore order to the system and “depoliticize” the public service since the 1972 and 1978 constitutions. However, those attempts came many years later because the system created in 1978 prevented constitutional challenge by effectively ensuring absolute impunity for the executive president, including for acts involving personal transgressions. This produced a period of terror for lawyers, even for prominent, well-placed lawyers. There was common talk during this time that the walls in Hulsdorf (the district of Colombo that is the centre for courts and lawyers) had ears.
The president and his allies used the carrot-and-stick approach with lawyers and judges both. When the new constitution was promulgated all judges were required to take a new oath, and from the nominations to the Supreme Court some names of sitting judges were dropped. The new oath was a breach of tradition, and one Supreme Court judge refused to take it as an act of protest. On another occasion the houses of some justices were stoned after they had ruled against the government. At that time, the Judicial Officers Association considered a resolution calling upon judges to go on strike. The resolution was defeated after one respected judge spoke against it, and this may have been an historic mistake. Had Sri Lankan judges and lawyers taken the path that their counterparts in Pakistan were to adopt, particularly in 2007, the independence of the judiciary and the larger history of Sri Lanka may have taken a different turn. The judiciary may have retained its capacity to intervene in important national issues and thereby reduce the extreme polarizations and disintegration that was to come in subsequent years.
One attempt to depoliticize the system came in 2001, and it is an interesting case. After a groundswell of protest among civil society groups, the government passed a legislative amendment providing for a constitutional council empowered to review presidential appointments and to propose candidates for certain high government positions. By this time the system had long since passed into dysfunction. But just as Sri Lanka seemed about to return to some semblance of balance after a quarter-century of politicized public life, Chandrika Bandaranaike Kumaratunga, daughter of S. W. R. D. Bandaranaike and Sri Lanka’s fifth president, declined to appoint election commissioners the new council had nominated. The logic here is self-evident: Independently chosen election commissioners would mean the president’s office (and therefore the president’s party) would lose control over elections.
President Kumaratunga’s successor, Mahinda Rajapakse, who is at this writing two years in office, has also declined to appoint these commissioners. So there are none. In effect, elections in Sri Lanka are now held unconstitutionally.
It gets better—or worse—for now the constitutional council itself has fallen out of existence. In September of 2005, the terms of the first council expired, and parliament has yet to announce any nominees for a new council. In the absence of one, Rajapakse has simply resumed making senior government appointments the old way—all on his own.
In effect, the entire public service in Sri Lanka is now managed unconstitutionally. Life goes on: Judges are appointed and accept the appointments without comment; senior police officials are appointed and do the same. All the formalities are observed, for the formalities are all that remain. So can law in Sri Lanka be manipulated to produce a state of near lawlessness.
SARATH SILVA IS, BY NUMEROUS accounts, a clever man. He got his Primary and Secondary education at Trinity College Kandy and then at Sri Lanka Law College. He also holds a Master of Laws degree from the University of Brussels. He was admitted as an Advocate of the Supreme Court of Sri Lanka in June 1967 and commenced his career in the Attorney General’s department in 1968 as a Crown Counsel. He is qualified in the Sri Lankan legal profession as an attorney at law and a judge. He has, without much dispute, proven his cleverness on several occasions in his early career. However, he does not rank among the greats in the legal profession of Sri Lanka, which includes names such as H. V. Perera and Colvin R. de Silva—names familiar to most Sri Lankans who know their own history.
He is apparently—Sarath, as he is almost universally known, did not respond to a telephone message requesting an interview—an accomplished wit, a man of sophisticated tastes, and a captivating conversationalist. Such descriptions as these come from allies and adversaries alike. But there is one thing any judge or attorney-at-law who is objective about Sarath, who does not share with him a political interest of one kind or another, who does not fear him for one reason or another, will add: He has done more than anyone else to destroy the Sri Lankan judicial system—“ruined it from within,” as one legal scholar put it to me. The outstanding question is whether he did it alone.
The man I have just quoted is called J. C. Weliamuna. He is a practicing attorney as well as the executive director of the Sri Lankan branch of Transparency International, a non-governmental group dedicated to questions of governance and corruption. He is prominent in legal and advocacy circles. He is known widely as simply “Weli,” and I was urged early in my time in Sri Lanka to go to see him.
“We do not have loyalty to a system in Sri Lanka,” he said as we sat in his office in a district called Kohuwala. “We have loyalty to individuals. It is the exertion of personality over the system.”
Weli had spoken fairly of Sarath, mixing his criticism with praise if he thought it was due. He said, “It is a case for the anthropologists. The institutions were there. But then there are the people within them. How can one man cause this kind of institutional erosion?”
This is a curious point. Many people make it. And it is a precise example of the psychology I have noted above. There are institutions, which seem to be endowed in the public imagination with some aura of eternal efficacy, and it seems to arrive as some surprise that these institutions consist of men and women. There is a failure to grasp the essential reality of human agency. I believe this lapse of thinking is another consequence of the manner of Sri Lanka’s independence. Having been handed to them by the British, Sri Lanka’s national institutions are (consciously or not) taken to be “always there,” immutable, in no need of attending.
Before Sarath there had been some semblance of integrity in the Sri Lankan courts—more at the top, in the higher courts, less at the bottom, the lower courts. For a long time this has been a big part of what enabled Sri Lankans to persuade themselves that the fundamental order of their society has been obscured but not lost. K. M. de Silva, the noted historian, once said to me in conversation, “I hate the chief justice, but not even he has been successful in undermining law altogether. When all is said and done, there is law and order.”
This is a very questionable point. It should be plain by now that many people dispute it. When we were talking, and afterward as I read my notes, I took de Silva’s view as yet another instance of the need many Sri Lankans have to go on believing what is no longer so as regards the law. To accept otherwise is to bear too many consequences.
There had been problems in the judicial system stretching back to the 1950s—problems, so far as I could make out, that were quite typical of recently independent nations. After the 1972 constitution, political appointments to the bench—appointments of unqualified people, eventually appointments of people with questionable criminal records, and so on—became common. It is an irony that the chief justice under Jayewardene—the president who accumulated so much power in his office—was unable to restore the system’s reputation. Jayewardene had named Neville Samarakoon as chief justice in 1977 and he remained in this post until 1984. It was a political appointment, as could be routinely expected by then, but Samarakoon failed to favor the president who had named him. This meant Jayewardene could not control the courts as he wished. The separation of powers was once again a problem. A very public struggle ensued, and Jayewardene sought Samarakoon’s impeachment. However, Samarakoon refused to resign and continued in the post until his retirement. It was an early and highly visible case of how, in Sri Lanka, one transgresses by not transgressing. Perhaps, to understand the crisis of the judiciary in Sri Lanka, more attention should be paid to the conflict between Samarakoon and Jayewardene.
“However judges were appointed, once they were appointed they became quite independent,” a judge I met once told me. “Now, with Sarath, it is different.”
Just how different has never been clear to me. One hears various accounts. There is an inexactness in many of them. The judiciary was long corrupt; no, Sarath destroyed it; there were problems, but under Chandrika it got worse; until Sarath it was among the best. And so on.
Was one man responsible for the tragic decline of Sri Lanka’s judiciary? Or has he been a symptom—of gradual decay, of a slow slide toward dysfunction—as much as a cause? Or did he simply deliver the final blow, a long time coming?
Scholars will no doubt sort out this kind of confusion. It seems to me, once again, to reflect the psychological dimension of law that I mentioned earlier: There was a dependence, a need to know the legal system was somehow intact even as it crumbled, and so no one but a few principled lawyers and judges was watching very closely. Assumptions were preserved, even as the ground beneath them fell away. Sarath has proven a considerable shock to Sri Lankans, but perhaps he should have been less of one.
Certainly it is clear now to anyone who looks at all closely that Sri Lanka’s judicial system under Sarath has reached a repugnant state. This is not too much to say. It is almost certainly among the worst in Asia by any ordinary measure of its ability to deliver justice to those who stand before it. If corruption is “the abuse of authority for personal gain”—a boilerplate definition of the term, one Weli uses, for instance, at Transparency International—then Sri Lanka’s courts are certainly among the most corrupt in Asia, a region not noted for its exemplary judicial traditions, to put the point mildly.
Perhaps Sarath’s most devastating act was simply to deprive Sri Lankans, busy building fortresses of private order, of an illusion—the illusion that there was any order outside of their walls and beyond the ends of their driveways.
Most important of all in this, the erosion of justice has dramatically worsened the erosion of the public self: the consciousness of citizenship, of belonging to a modern nation. What emerges is the privatization of consciousness—a withdrawal from public life and the death of Sri Lankans as civic beings. What emerges in the place of these things is a way of thinking rooted in pre-modern (and then colonial-era) notions of hierarchy—a phenomenon to be considered more closely in later chapters.
It is this recrudescence of an essentially pre-modern consciousness that ranks as the most profound consequence of Sri Lanka’s state of near lawlessness. The courts were the last vestige of public space in Sri Lanka. And under Sarath this space has been destroyed.
FOR SARATH, NATIONAL PROMINENCE and national controversy arrived at roughly the same time. In September 1999 President Kumaratunga named him to the Supreme Court. And by all accounts Sarath served Chandrika in the usual way, tilting decisions in the administration’s favor. The alliance between the two seems to have strengthened. Obviously the president would not have wanted to undo the damage done to the independence of the judiciary under the Jayewardene and Premadasa regimes. Perhaps she understood that the executive presidency, as found in the 1978 constitution, was incompatible with an independent judiciary. A more open cooperation would protect her from her political enemies. It is in this context that we should mention Mark Fernando, who was the most senior judge of the Supreme Court at this time. Fernando had mastered his profession within a liberal democratic framework, and he was consequently seen as politically unreliable.
Between them Chandrika and Sarath managed to offer Sri Lankans a breathtaking display of contempt—contempt for Sri Lankans themselves, for the society the two of them had large roles in governing, for the legal profession, for a half-century’s struggle toward a proper nationhood. At the moment the president nominated Sarath to preside over the country’s highest court, he already faced two legal complaints so messy as to make his appointment at the very least inadvisable, if not illegal (as the complaints asserted).
One complaint concerned a judge named Lenin Ratnayake, a magistrate who is alleged to have raped the wife of a defendant in his chambers. In a published account of the incident, the writer Victor Ivan asserted that Ratnayake was a cousin of the Sarath and that the latter allegedly took steps as attorney general to suppress information regarding both the rape case and another case involving the misappropriation of funds.
Sri Lanka has since got what it might reasonably have expected from Chief Justice Sarath Silva. The record reveals a depravity that at times seems purposely perverse, an intentional subversion of the legal system, a cynical mockery that brims with contempt for all of Sri Lanka, for the very idea of Sri Lanka. The worst of Sarath’s abuses have been documented, most notably by Victor Ivan in An Unfinished Struggle, a detailed investigation of Sarath and the Supreme Court during his years as its chief justice. It is an important book. There is an apparently endless stream of stories about Sarath’s corruption and lawlessness, many told by those formerly part of the intimate circles in which Sarath moves. Ivan’s book is valuable because it makes Sarath’s corruption a matter of record. And its assertions have never been refuted.
Sarath has faced relentless challenges to his appointment in the eight years since Chandrika elevated him. A U. N. rapporteur condemned Chandrika’s choice as soon as she announced it. Ivan still has a case against him pending at the Human Rights Commission in Geneva. In 2001, after intense political lobbying, the parliamentary opposition introduced an impeachment motion. Before legislators could even debate it, Chandrika did what Sri Lankan presidents do at such moments: She dissolved parliament. Sometime later another impeachment attempt was made, and it ended the same way:
Parliament was again dissolved by presidential decree.
In time Sarath has proven loyal only to himself. As Chandrika’s term in office drew to a close, he shifted his allegiance to the next government, headed by Mahinda Rajapakse.
It is impossible to do justice (if that is the suitable term) to Sarath’s years as attorney-general and chief justice in so brief a book as this. A comprehensive account and appraisal must be left to others. My purpose here is merely to suggest the devastating impact Sarath has had—a devastation that remains quite well hidden from the world beyond Sri Lanka’s shores.
As I have suggested, there seems to have been an unconscious recognition among Sri Lankans that the law was their last patch of unspoiled public space. Sarath has made any such idea implausible. It is as if he had burnt what remained of public space to a shell, as the Jaffna Library was burned. Dozens of judges have seen their lives and work destroyed under Sarath’s irrational judicial regime. Ordinary Sri Lankans now fear even the high courts as places where logic, justice, or fairness may have nothing to do with the outcome. Power and collusion—collusion between lawyers and judges, lawyers and the police, lawyers and doctors, lawyers arguing for and against a defendant—are the only “norms.” The lower the court, the worse the norms. One fears them all, however, because they are dangerous places.
And when one peers into the judicial system, establishing a line of sight from the Supreme Court down through the appeals court, the high court, the magistrate’s courts, and so on, it is difficult to see how the collapse of the system in the years of Chief Justice Sarath Silva has been the work of one man. Yes, men and women can destroy institutions, and it is a sad fact of public life that they can do so far more easily than they can build or rebuild them. But the Sri Lankan case appears to be one of gradual decline from the bottom up rather than the work of a single man. The higher courts appear simply to have taken on the character evident for many years in the lower courts, the courts that are supposed to serve ordinary people. So it is partly a matter of everyone now getting the treatment ordinary people have long endured.
THERE WAS A FAMOUS CASE of Michael Anthony Fernando, which occurred in November 2002. It was a small matter, but it is small matters in Sri Lanka that frequently seem to cast the most penetrating light into the system.
Tony Fernando was an English teacher who found himself involved in a labour dispute. He took the matter to the Supreme Court by way of a fundamental rights application. The case was dismissed—unfairly, Fernando asserted. He then filed a motion calling for the case to be heard again, and the case came before a court in which Sarath presided. Fernando appeared without a lawyer. When he asserted his constitutional right to equality under the law, Justice Silva immediately announced that the petitioner was sentenced to one year’s rigorous imprisonment, with a month’s additional sentence for each word Fernando might speak thereafter.
The sentence was based on a charge of contempt of court. However, no charge sheet was created and no legal representation was allowed. Fernando went to jail that same day.
The Fernando case caused an uproar, and several sympathetic lawyers filed an appeal. The appeal was taken up by the same bench that had sentenced Fernando, Justice Silva again presiding. And, naturally enough, leave to proceed with an appeal was not granted.
Fernando served his full term in jail. The United Nations Human Rights Committee eventually took up his case and held that the court had violated rights guaranteed under the International Covenant on Civil and Political Rights, to which Sri Lanka is a party. Compensation for illegal detention was recommended. But Sri Lanka ruled that it Fernando’s imprisonment was the act of a domestic court and therefore not subject to the U. N.’s recommendations. Four years later, in 2006, Sarath ruled in a different case that U. N. Human Rights Committee views and recommendations do not bind Sri Lanka as the president signed the Optional Protocol without prior parliamentary approval. Litigants such as Tony Fernando thus ended up worse off than when Fernando began. They lost not only their access to redress before local courts but also remedies by way of international law. So has the absence of justice in Sri Lanka been made absolute.
Tony Fernando was also tortured while in prison custody. After his release he was pursued by people who were never identified, and he finally sought asylum overseas. He is now a refugee living in Canada.
I heard Fernando’s story many times, for the case had made the newspapers and many people had followed it. We are counting in the scores of thousands when we consider the Sri Lankans who have suffered at the hands of corrupt judges and attorneys. But the Fernando case appears to have served as a mirror to the faces of all those who watched its progress, if that is the word.
The first to relate it to me was a young attorney named Shanthi, with whom I was eventually to become a friend.
“It tells you a lot of things, this case,” Shanthi said when she had finished her account. “It tells you about the attitude problems in the system. It tells you how dangerous even something like a contempt charge can be made to be. It tells you, in the end, about unlimited power.”
Shanthi had an interesting history, which she told in small parts, a little at a time, as we met over a period of many weeks. It is worth relating for what it shows us about the legal system, what has become of it (and what it could have become). In Shanthi’s story I also found something else: the difficulty Sri Lankans often have seeing what is there in fromt of them—not because it is obscured but precisely because it is so pervasive.
Shanthi was born the daughter of an air force officer and spent her earliest years in a town near her father’s base north of Colombo. Then the family moved to the ancestral home, as she called it—the house in central Colombo her father inherited. Shanthi was still young. She attended one of the capital’s private schools, “truly private, no government funding,” as she insisted a little vigorously. It was called St. Bridget’s Convent. It was Catholic, run by the Sisters of the Good Shepard.
“Did it make you a good Catholic?” I asked one day.
“It made me a good rebel.”
We both laughed. We were sitting in the reception room of the family home, where Shanthi lived with her mother, who was a widow by this time. On the wall above us was a picture of Jesus, the sacred heart exposed at the center.
“Really,” Shanthi continued, insistent again. “I became determined never to do anything simply because that’s the way it’s done. I learned to question everything.”
Shanthi also learned to be an idealist of a kind during her years among the Good Shepard sisters. And when the time came for university she declined a place to study the biological sciences. Her father had been furious. But with the highest of hopes, with the belief that she would work to make a difference, Shanthi eventually chose law.
The profession did not disappoint her—not at first. After finishing at the law school in Colombo, Shanthi became an intern at the Supreme Court. Her mentor, the man who had begun the practice of introducing interns, was the justice named Mark Fernando. He remains, without much question, among the most respected jurists in Sri Lanka’s history as an independent nation. In his later years on the bench he was a kind of beacon for Sri Lankans—for those in the legal profession, certainly, and also for many non-professionals who looked to Fernando for assurance when they thought about (and assumed) the integrity of the system. Shanthi spoke of him (as did many others I met) with the greatest of reverence.
She said, “The internship was in the mid-1990s, when I first became a lawyer, and that was such an important time for me. I had to study cases and discuss them afterward in chambers. I wrote reports and then we would discuss the reports. They would call me for long telephone conversations in the evening. I saw the workings of the court from the inside. And I had an ideal.”
That is how Shanthi spoke of the Supreme Court interlude—with an unalloyed enthusiasm. It had lasted six months, and as she described it, it seemed plain that Fernando’s intent was to cultivate a younger generation of conscientious attorneys and judges. He had identified a national need. He seems to have identified Shanthi as one who could address it.
After the internship, Shanthi began to practice—an apprenticeship with a prominent private attorney. It was a criminal practice, and again Shanthi was immersed, this time in the cases themselves. She handled clients, court sessions, briefs. She managed cases up and down the system, from criminal courts up through magistrate and high courts to the Appeals Court and the Supreme Court. Shanthi and the attorney had an arrangement: He would handle no drug-related cases—and she no rape cases: She found the discussions of these cases in chambers, which included only men, to be awkward.
It was in a magistrate’s court that Shanthi collided with the realities of the justice system as it was by the mid– to late–1990s. It was in the magistrate’s court that she was finally able to see the consciousness of hierarchy that, surely, was all around her—indeed, within her, “the edifice within.”
“These courts were a shock,” Shanthi recalled. “I couldn’t even call them courts. I dreaded them. Cases postponed, cases delayed, nobody treating the public with any respect, nobody even talking about the law. When I started in the Supreme Court you could still have hope. In the Supreme Court and the Appeals Court, there was a lot of integrity among the justices. At least a citizen of Sri Lanka would be heard. He or she would be treated with dignity. Then I began to see the wider picture. The degeneration, especially in the lower courts and especially from about 2000 onward, after Sarath became chief justice, was suddenly very real to me. There are no proper procedures, and even if there are they are not taken seriously. There are codes of conduct, but nobody knows what happens if they are breached. The standards there when I started out are no longer there.”
Shanthi was concerned most with what she called “an additional problem” among the judges.
“Take the question of contempt—as in the Tony Fernando case. It’s not unusual, that case. In a magistrate court last year there was a defendant in a cell adjoining the courtroom. He yawned, the judge heard it, and he was sentenced to two years for contempt. A couple of years ago an opposition M. P. got a two-year sentence for contempt after he allegedly criticized a Supreme Court decision in a public meeting.”
Shanthi paused and then started speaking in broader terms.
“In any country the attitudes and values projected by the head of an institution have a big influence on lower-level officials. This is what I saw. Judges started saying, ‘I don’t want to listen to your case.’ And when you objected he would say, ‘Are you disputing me? I could hold you in contempt.’ This happened to me again and again. You’re simply not given the opportunity to present your case. The basic right to be heard is not there. This happens again and again to many attorneys.”
One case changed Shanthi more than any other. As I reviewed my notes later, it did not seem to me in any way singular. I began to sense that it was simply a case that Shanthi had witnessed up close, in all its intricate detail—the case that showed her that the “above” and “below” of her own society had finally found its way into the upper reaches of the legal system. It was a much-noted criminal trial, with numerous defendants and involving several senior lawyers.
“We had three clients. One was acquitted and two found guilty. It was in this case that I finally saw clearly how the system works. It was the people at the top who were responsible, who were truly guilty, and they got off. So the guilty were found innocent and the innocent were found guilty. I knew immediately: It was something I wanted no part of.”
Shanthi left law soon after that case. She went to England for a time, then returned. When I met her she was working for a non-governmental organization, focusing on justice for torture victims, and thinking about studying in Australia for a degree in psychology. The thought was to build a clinical practice. And it seemed right: Shanthi had a native sympathy for people. She was attentive to the psychology at work beneath the workings of the legal system. But the path of the idealist had led her to despair, at least as far as the practice of law was concerned.
MARK FERNANDO, the renowned jurist who had been Shanthi’s mentor at the Supreme Court, resigned abruptly before the expiry of his term in office, retired from public life, and went into semi-seclusion at his home in central Colombo. When I arrived in Sri Lanka later, it was still an event much talked about among judges and lawyers. Why had he done it? Had Sarath forced him out? It was said that Fernando had health problems: There had been a battle with cancer. But had Sarath proven so repellent that Fernando had given up? These questions—the last especially—preoccupied those concerned with the fate of the justice system. Fernando’s commitment to it, or the absence of one, seemed to have taken on a symbolic meaning.
Encouraged by many friends—Shanthi among them—I went to see Fernando one afternoon. He lived in a comfortable house at the end of a sedate lane in an affluent quarter of the capital.
One could see immediately that he was indeed infirm. He was tall, strikingly handsome, and of a charismatically dignified bearing—a casual but cultivated man with silver hair and piercing, animated eyes. But he was excessively thin and drawn, and he moved slowly. He warned me when I arrived that he would tire easily.
I saw, too, that he had turned decisively away from the life of the public figure—the man people knew. The living room, where we sat over tea, was strewn with the toys of his grandchildren. There were family pictures and books but few signs of engagement in the life of the country or in the profession to which he had dedicated his career. The career was over. And Fernando courteously declined to discuss Sarath and the judiciary in anything other than the most general terms. Certainly, no names were going to be mentioned.
He said, “There are good, strong periods in the lives of these sorts of institutions, and there are periods that are less good.” This was as near as Fernando was to get to serious comment, and I did not want to tax him. The meaning was clear enough. I took few notes during the hour or so we passed together.
I began to understand, as we sat and talked, the iconic status he had among Sri Lankans. Over time and many other conversations, some with people in the legal profession, some not, Fernando seemed to stand for a certain possibility and a certain disappointment all at once. It was never clear to me whether Sarath’s elevation to chief justice had caused Fernando’s departure. But in the end this did not matter. Sarath had come and Fernando had gone. And with his going had gone an era and an idea of order, the idea of a system—a modern system, rooted in law, still equipped to correct itself.
One must also connect Fernando with the very freighted question of hierarchy in Sri Lanka. He was educated at St. Joseph’s College in Colombo, the University of Ceylon Peradeniya, and the Law College—all among the country’s most elite institutions. He was awarded a Degree of Doctor of Laws in 2001 by the University of Colombo, and with considerable international stature during his professional years, Fernando was prominent among the Sri Lankan elite. In this respect his presence in public life held out a kind of promise: So long as he was there, one could think that the old hierarchical pattern in Sri Lankan life, the above-and-below of social relations, could be set aside, could be overcome in the name of a modern, just society, a society of enlightened equity. But when he withdrew, Fernando seemed to take this promise, or a big part of what remained of it, with him. And with Sarath came what Shanthi had called “the attitude problems,” problems that are essentially hierarchical.
One day I told Shanthi that I was planning to see a number of judges. I wanted to hear the stories of those who, like Saminda, had confronted Sarath (whether they had intended to or not) and had paid a high price for it.
A worried look crossed Shanthi’s face.
“Listen carefully,” she said. “We have some very good judges. But there aren’t many heroes.”
