Basil Fernando
Sri Lanka’s justice system, legal profession and media are all under peril says a report published this week by the International Bar Association’s Human Rights Institute(IBAHRI). The report is entitled, Justice in Retreat: A report on the independence of the legal profession and the rule of law in Sri Lanka. This expression of concern by the International Bar Association, which is acknowledged as the global voice of the legal profession, is perhaps the first statement of recognition by an internationally reputed professional organisation of lawyers of the peril that is facing Sri Lanka’s system of justice. In this column the author has constantly drawn attention to this peril and hopes that those concerned with Sri Lanka will pay more attention to this all important question.
The LTTE
The report comes at a time of great importance to Sri Lanka. The government has claimed complete victory over the LTTE. The circumstances surrounding the last days of the war between the LTTE and the Sri Lankan armed forces still remain a focus point in the global media and the United Nations Human Rights Council has called a special session to discuss this situation. In all discussions the government, as well as all the other interested parties, talk about bringing a political solution to the problem of minority Tamils in the country.
The 13th Amendment
The government’s preferred solution is the implementation of the 13th Amendment to the Constitution (Devolving power to provincial councils). Even the communiqué by the government and the UN issued at the end of the visit of Ban Ki Moon, the Secretary General of the United Nations who paid a special visit last week makes mention of the government’s commitment regarding the 13th Amendment.
The basic question that arises is as to whether this amendment could be fully implemented or implemented at all in a place where the justice system, the legal profession and the media is in peril. The 13th Amendment is no different to any other part of the Constitution and therefore the general problem that deserves consideration is as to whether a constitution can be implemented in a society where the justice system, legal profession and the media is in peril.
Over the long period of the conflict, which dates back at least 31 years, almost all references to the conflict were on the basis that it was an ethnic issue. Therefore, the attempt was, if there was any, to find a specific solution to this specific problem.
However, it appears clearly now that whatever they mean by an ethnic problem, this is only a part of a much larger problem within a country where the total system of justice, which means the system that applies equally to the majority as well as to the minorities, is in peril. The problem specifically affecting the minority cannot be in any meaningful sense separated from that of the problem affecting the entire population where the justice system, the legal profession and the media are in peril. Justice is the basis of all relationships within a particular society. It is justice that determines the limitations on state power. It is those limitations preserved by law that ensures protection of all rights to all persons. These may be the rights of women, rights that ensure protection against illegal arrest, detention and extrajudicial killings and denial of fair trial or matters relating to economic, social and cultural rights and the rights of the child and the like.
The rights of all
The minority rights are one more category of the overall umbrella of rights of the citizens. If the system of justice is in peril then all the rights are in peril. Simply to talk about minority rights only is fictional, just as talk about saving a few after allowing thousands to perish, can only be a fiction. Let us say you drop a nuclear bomb in a particular city and talk about saving only one group of persons among the many who are likely to be affected by the explosion. It is possible to talk about such a thing as pure fiction but in real life it does not happen that way.
What is said about the justice system as a whole can also be said of the legal profession and the media. The legal profession is an indispensible component of the protection of rights in any modern society. The task of the profession is to assist citizens who may have a lesser understanding about the total system of the law. If the lawyers cannot provide those services that are expected of them, their clients will suffer for it. Once again this is a problem that affects all. Without addressing a problem that affects all it is not possible to address the problem of the minorities only.
Again, the media is an essential component of the protection of all rights of the people. If the media is in peril the rights of all are in peril. Everyone will be denied of the right to information which is the sole basis on which well informed judgements can be made. If all the people are denied the information needed for making rational judgements all the decisions they make are destined to fail. The majority and minority relationships for the benefit of all can happen only if there is a rational discourse between the two.
IDPs
The peril of the system of justice, the legal profession and the media is amply illustrated by the manner in which the internally displaced persons, said to be around 300,000, are being treated at the moment. The country’s system of the administration of justice is not involved in any way in dealing with this issue. Therefore the lawyers have no place in the protection of the rights of these persons. The media are virtually denied access to these persons. Thus, basic rights that any citizen should have under any circumstances are denied to them and there is nothing anyone can do about it.
What the situation of the IDPs illustrates is that it is not possible to separate the discussions on the total collapse of justice and the media in the country from any aspect of the problems of the minority. The situation that has developed is that all the citizens should voluntarily abandon any claims for legal status and legally enforceable rights for the sake of what is called national security. Thus security has come to mean a situation in which everyone’s rights are an irrelevant factor. In this context the IBAHRI report has highlighted a fact which is not only relevant for lawyers but also for the society as a whole.
