(This article is published on the occasion of the retirement of the Chief Justice, Sarath Nanda Silva’s, who is due to leave office on the 7th June. The article examines the fundamental failure of the system of justice in Sri Lanka and the responsibilities for this situation. The article is based on the assumption that the failure of justice damages the fabric of a society and a nation far more than terrorism, however vicious such terrorism may be. The responsibility for the failure is examined on the basis of the abdication of the duty to think and to judge, which has allowed the executive to expand its powers and to undermine the justice system without resistance).
There is a story of a man who took a long and hazardous journey which brought him, at the end, to hell. The gate keeper asked him, why did you take such a long and hazardous journey to end up in this horrible place? The traveller replied, I thought I was travelling towards heaven and my journey would take me there. The journey undertaken by most people in Sri Lanka to find justice ends in a similar manner in that they get the very opposite of the justice they sought.
A torture victim that goes to court hoping to obtain redress for his grievance may end up being killed and the court will not even bother to find out why a journey, which was taken to reach the judges of the country, could end up in such a death. The stories of Gerard Perera and Sugath Nishanta Fernando are two well known examples which illustrate many more cases which do not even get reported. In all cases which are against state officers, every seeker of justice has to resign him or herself to be on the receiving end of a long list of harassments for themselves and their families.
A man who went to complain about a rather trivial employment matter to the Supreme Court was sentenced to one year of rigorous imprisonment, allegedly for talking loudly in court. Once in jail he was severely beaten. When he was released, as he had made complaints about the torture he suffered he was pursued to an extent that in the end he left Sri Lanka and now lives in a far away country with his family. That was the well known case of Tony Fernando. Fernando took the trouble to go to the United Nations Human Rights Committee and lodge a complaint. The Committee, having examined the case declared that this man had been wronged and that the state was responsible for the violation of his rights. Despite of this the courts made no attempt to correct their judgement and neither did the government do anything to comply with the view of the Committee that recommended he be compensated for illegal imprisonment. The government impliedly took refuge under a similar case where the Human Rights Committee had viewed the decision of several courts, including the Supreme Court of Sri Lanka to be wrong and wanted a correction. The Supreme Court itself decided that that the Human Rights Committee recommendations need not be implemented.
There is now a long list of cases from the Human Rights Committee, the last one being made in April, 2009 requesting justice for Sri Lankan citizens which the government has taken no notice of.
Harassment associated with the seeking of justice is narrated like a litany all the time. However, harassment goes on and justice remains denied. These lists are prolonged delays in adjudication, the absence of protection for witnesses, extraordinary costs of litigation and the absence of any form of decent legal aid, payments of bribes to various persons regularly, the possibility of endless malpractice and the possibility of bias for various reasons. In all politically sensitive cases assassination is a very real threat.
In this hazardous journey there have also been fundamental changes in the very norms on which justice is based. Many of such norms have been relativised which means that they can be dispensed with when inconvenient. Some such aspects are as follows:
- Imposing of punishment without trial.
- Appeals of some cases heard by the same judges who heard the original case.
- Dispensing with procedural rights thereby bringing in arbitrariness to the proceedings.
- Causing of compromises at the threat of dismissal of cases or adverse judgements.
- Blatant denial of the rights of lawyers to have a proper audience before court so as to be able to present their cases in an appropriate manner within accepted professional standards.
- Overt or covert threats against the filing of certain types of cases which may be politically sensitive.
- Creating the atmosphere hostile to reasonable discourse and proper assessments required for judgement.
- Blatantly manifested political partisan attitudes.
- Generation of a cynical and denigrating attitude towards litigants who insist on pursuing due process.
- General neglect of due process.
- Refusal to conduct inquiries into crimes which has become almost a rule now.
- Charging the complainants and not investigating the alleged suspects.
- Demands for bribery at the investigation stage.
- Serious threats to those who complain about bribery and corruption.
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- Poor legal education at the level of investigations and often even at the judicial level.
- Pressures on the judiciary, particularly on the lower ranks from within the judiciary itself and from outside to limit their freedom and independence of judgement.
- The abuse of contempt of court laws in order to prevent criticism and exposure of all the matters mentioned above.
- The government’s refusal to allocate sufficient funds for the administration of justice, investigations, prosecutions and the judiciary and the excuse created by these institutions that their defects are due to inadequate allocation of funds.
- Restrictions on the media creating fear in the media itself to do proper reporting and coverage relating to matters of justice, thus creating self censorship.
- The use of emergency and anti terrorism laws in order to cripple the process of justice.
- The overall strategy of depriving the independence of the judiciary in order that the executive can remain without being subjected to accountability.
- Denial of the supremacy of the law.
- Denial of the place of the Constitution as a paramount law by making it possible for the executive to ignore the constitution with impunity.
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(This list is not exhaustive)
The ultimate outcome of all this is that anyone who dares to seek justice despite of all this ends up in a worse position than before. The general impression that to endure wrongs is a more practical and less painful course of action is thereby generated in society and this becomes the more dominant impression within society. This impression in turn helps those in powerful positions to abuse power and those who utilise instability to make profit to engage in extensive criminality.
As a result whatever limited achievements there have been through the introduction of the legal system in Sri Lanka have been drastically undermined and a primitive state of affairs has emerged. It is the same state of affairs that in the powerful novel, White Tiger, that Aravind Adigar terms as the rooster coop. The following quote written by way of a letter to the Chinese premier within the story depicts also the reality of Sri Lanka.
The greatest thing to come out of this country in the ten thousand years of its history is the Rooster Coop.
Go to Old Delhi, behind the Jama Masjid, and look at the way they keep chickens there in the market. Hundreds of pale hens and brightly coloured roosters, stuffed tightly into wire-mesh cages, packed as tightly as worms in a belly, pecking each other and shitting on each other, jostling just for breathing space; the whole cage giving off a horrible stench the stench of terrified, feathered flesh. On the wooden desk above this coop sits a grinning young butcher, showing off the flesh and organs of a recently chopped-up chicken, still oleaginous with a coating of dark blood. The roosters in the coop smell the blood from above. They see the organs of their brothers lying around them. They know they’re next. Yet they do not rebel. They do not try to get out of the coop.
The very same thing is done with human beings in this country.
This is also the case in Sri Lanka.
The recent report of the International Bar Association’s Human Rights Institute (IBAHRI), issued in May, 2009, concluded that the justice system, the legal profession and the media in Sri Lanka are in peril. That, in fact, is an understatement of the extent to which the whole system has been damaged.
Responsibility
Damage to justice can cause more harm than terrorism
There is very little understanding and appreciation of the fact that damage done to the justice system can cause more havoc to a nation than what the worst terrorist can do with the worst type of attacks. Damage to the nation and society is more easily understood when it is expressed through acts of violence and physical destruction. It is quite normal to see the damage caused by acts of violence. Therefore these attract immediate attention, create apprehension and often generate some form of reflection on the need to overcome such destruction.
However, destruction caused to a social fabric and a nation by the destruction of the justice system is often not dramatically visible. Such destruction takes place through millions of small acts that happen over a considerable period, thus creating damage to the capacity for judgement within society. This is the damage done to the rational process of society. It is this rational process of relationships that we call the social existence.
Though the process that damages the rational interactions and exchanges of society is not seen to the naked eye it is nonetheless very real. When this inner process of society is damaged and deteriorates it does have a direct bearing on the physical aspects of social relationships. People may begin to murder more easily simply because the inner fabric of the restraints created by rational discourse on justice has been damaged. Such deterioration can affect not only individuals but also groups. A group mentality of one specific group towards another group may begin to give way to the undermining of more humane relationships to less humane relationships when the inner rational processes which bind persons together on common understandings of justice deteriorates. As inner rationality is damaged outer expressions in language can change. Such expressions in language can also soon find expression by actions which, within the earlier context, people may restrain from.
When this deterioration of the inner rationality breaks down due to the binding cement of notions and practices of justice being undermined irrational political forces may mobilise the damaged mentalities for their own ends. How far that can go has been demonstrated by the movements lead by Hitler, Stalin and many others, big and small throughout every corner of the world.
Thus, to underestimate the damage that the undermining and the deterioration of justice within a society can cause is a fundamental loss of the aspects of judgement within that society and it has dangerous consequences.
Who is responsible for Sri Lanka’s deterioration of justice?
Naturally the first culprit is the political system which since 1972 has developed to reject the separation of powers. By 1978 the executive took total control of the system, thus, creating enormous difficulties for the continuation of the practice of justice. As this aspect has been dealt with by many, over and over again, perhaps other aspects of responsibility may be emphasized here.
The responsibility of judges and lawyers
When the system of justice is attacked by the executive it is the duty of the judiciary to resist so that it can protect the very system on which it has its reason to exist. Has there been any such resistance? If there was, was it adequate? Instead of protection has there also been support extended to the executive’s attempt to undermine the judiciary from within the judiciary itself. In all this, what has been the role of the lawyers?
The duty to think and the duty to exercise judgement as components of responsibility
The dispensation of justice within the required framework of quality necessitates the exercise of thinking and the use of judgement on the part of the judiciary which is the component of the government that specifically has the task of ensuring justice. Failure to engage in such thinking and the exercise of judgement in the very preservation of the justice system itself makes the holders of these positions themselves responsible for any damage that the system in the first place and the people as a consequence will suffer.
On the examination of the case of Otto Adolf Eichmann by Hannah Arendt, she stated that the Eichmann’s guilt in executing orders for the extermination of Jews and other crimes against humanity lies essentially in his abdication of the duty to think and to exercise judgment regarding the actions which he took. Eichmann’s defense was that whatever Hitler said, was a law at the time and that he merely obeyed the law. Hannah Arendt argued that there is no such thing as obedience except in kindergarten or some prison when a person cannot, either due to natural reasons or due to reasons imposed from outside on that person that his capacity to think and to judge cannot be exercised. Beyond this there could be nothing to be recognised as obedience as an excuse for negating responsibility.
All human actions following the scheme of another are actions that support that scheme. One has a responsibility for what one supports. It is a duty to think and to judge as to the justifiability of things that a person, whatever their official capacity be, supports. If due to the failure to exercise thinking and judgement one supports policies or actions that are wrong and that have adverse consequences to oneself and society then that does not remove one’s responsibility for such acts. Eichmann was guilty not because he through his thinking and judgement supported Hitler’s scheme, he was guilty because he failed to exercise his thinking and judgement. No one can wash their hands regarding their responsibilities on the basis that they did not think or use judgement in doing such actions. This she called the banality of evil.
Throughout the period from 1972, heightened after 1978 the executive has been able to get the compliance of many judges to abdicate their own responsibilities, either by adjustment to unjust laws, adaptation to deprivation of their powers which they would normally enjoy as judges and thus, legislatively denigrating the position of the judiciary.
What is important is not the motives by which many complied with the scheme of the executive to relegate the judiciary to an insignificant position whereby they are unable to ensure the prevalence of justice within society, what is more important is that there was a general failure to think and to judge as to what was happening to the system of the judiciary and the justice system as a whole.
Without thinking and judgement there cannot be resistance to evil schemes that destroy the fabric of human society. Sri Lankan society today is one where the fabric of the nation has been enormously damaged by political experiments that have destroyed the foundations of justice. A professional judiciary with a tradition of 200 years failed to exercise their thinking and judgment in order to resist the executive enlargement of powers to the detriment of justice.
From this point of view the judiciary which has failed to exercise their powers of thinking and judgement to protect the system of justice remains condemned. This same can be said of the lawyers as a whole. Throughout this period there is nothing to show by way of writings, by way of discussions, by way of protest and by way of any other expression to demonstrate that the legal profession in Sri Lanka and the Bar Association has exercised its thinking and judgement to resist the onslaught of the executive on the very system of justice. While there is an overwhelming number of lawyers who privately express enormous frustration it is only a slight amount of work that is being done to think the matter through and exercise the judgment in order to develop responsible reactions to the moves of the executive.
There are of course, others responsible like the intellectual community of Sri Lanka whatever language they use, and leaders of religions, various rebels and the like who too, have failed to exercise their thinking and judgement in order to prevent an enormous catastrophe, far worse than whatever terrorism has done, to the Sri Lankan nation.
The Asian Human Rights Commission
