Basil Fernando
The appointment of the first lady Chief Justice would normally have been a day for great celebrations. However, in the context of the attack on the Sri Lankan judiciary since the adoption of the 1978 Constitution such a celebration would belie the actual situation of the judiciary as well as all the administration of justice institutions in the country. The 200-year-old tradition of judicial institutions was undermined by the constitution itself and 33 years of practice under this constitution has greatly subordinated the judiciary to the all-powerful executive presidential system.
Those who are not familiar with the collapse of the institutions of the rule of law and democracy in Sri Lanka may refer to the following publications The Phantom Limb: Failing Judicial Systems, Torture and Human Rights Work in Sri Lanka, Recovering the authority of public institutions, Sri Lanka-Impunity, Criminal Justice & Human Rights and An X-ray of the Sri Lankan policing system & torture of the poor.
You may also wish to read the Urgent Appeal:
SRI LANKA: A man was allegedly abducted by a powerful businessman over a land dispute and fate remains unknown–the police is silent on the investigation
Some of the salient points may be summarised here.
The executive president is above the law
By virtue of the Article 35 of the 1978 Constitution and also through many other provisions of the same the executive president, who is solely responsible for all the actions of the executive, has been placed above the law. The president cannot be called before the court by way of a lawsuit for any reason at all, including, for example, a criminal charge. This constitutional provision placed the executive president of Sri Lanka in a position far superior to the King of England when Sri Lanka was a colony. The most important aspect of the independence of the judiciary is the legal notion that no one is above the law.
Kindly see: SRI LANKA: The politics of habeas corpus and the marginal role of the Sri Lankan courts under the 1978 Constitution
The constitutional provision that the president is above the law has, in practice, been used to place anyone who is carrying out the orders of the executive president, also above the law. The use of emergency laws and the anti-terrorism laws has fortified this situation even further. When some persons holding important positions are placed outside the jurisdiction of the courts the very notion of the separation of powers loses its significance. That is the situation Sri Lanka has descended into.
In day to day life this means that even matters like murder can easily be placed outside the jurisdiction of the courts by executive actions. When the executive refuses to conduct enquiries into murder, forced disappearances, kidnappings and the like all these matters are kept outside the scope of the judiciary. The glaring examples are many, such as the murder of Lasantha Wickrematunge and the disappearance of Prageeth Eknaligoda and Thirimadura UpaIi Mendis over a land dispute and the like. However, most of such uninvestigated crimes are about the ordinary folk and they are not even being noticed. The subordination of the policing system to the executive president’s direct control virtually makes the administration of criminal justice arbitrary.
What is worse is the abuse of the position of the Attorney General which enables the fabrication of charges for political and other reasons possible on the one hand and the letting off of criminals against who evidence is available on the other. The list of examples is too long to be included here.
Added to all this is the space available for unscrupulous manipulation of the system of the administration of justice by scandalous delays in adjudication. Hundreds of cases of the ordinary people could be cited here of whose search for justice was brutally denied through such delays and by the abuse of such delays by such means as killing and intimidation of witnesses by those who want to defeat the purposes of justice.
The absence of justice provides the perpetrators of crime incredible opportunities to exploit the people. The money launderers, the employment agents and also the state officers who succumb to bribes are turning the lives of the ordinary folk into living nightmares. Petty thieves exploit the situation at every turn. The citizens that go to the police stations to lodge complaints end up with more trouble than they started out with and greater complications into their otherwise peaceful lives.
The problem arising from the Constitution itself and aberrations of the institutions cannot be changed by the efforts of judges even if they were to make such efforts. The problem of the judiciary is a societal problem which can only be resolved by political will to make the necessary constitutional and institutional changes.
Until then there is hardly anything to celebrate.
