The former commander of the Sri Lankan army, retired general Sarath Fonseka is today under military detention in much the same way that tens of thousands of Sri Lankans from the south, north and east in detention facilities in the recent decades. More than ever, the inability of the courts to intervene effectively to protect the citizens from arbitrary detention is a common phenomenon in Sri Lanka.
The essence of liberty is to curtail the power of the state in such a manner that the individual can be protected. The incapacity of the Sri Lankan legal system to find ways to preserve liberty and to protect the individual is all too clear now.
Whether the idea of liberty was ever properly introduced into the Sri Lankan legal system may be a moot point. Of course the rules relating to the judiciary were also initiated by the British who introduced the system to Sri Lanka. However, they were introduced from outside and whether the foundational principles behind these laws were even understood within the system is debatable.
In Sri Lanka the question of sovereignty is more admired than the issue of liberty. Being a colony, fighting for sovereignty was, no doubt, the greatest aim. Regaining lost sovereignty occupies the thoughts of all when a nation is under colonial rule. The mentality that is built at that time can also continue to prevail and condition the attitudes of the people thereafter.
However, the struggle for liberty has always been to curtail the powers of the state in order that the individual can be protected. The proud idea that sovereignty is important does not in any way help to solve the problems of the individuals who live within the sovereign state. The whole experiment since the French revolution has been to establish the framework within which individuals can be protected from the sovereign state itself. Much of the meaning of democracy lies with the capacity of the political structure to protect the individual from the state.
The greatest damage that the political leaders of the left as well as the right did in the 1970s was to attack the concept of liberty. Under the pretext of strengthening the state in order to achieve development what was actually done was to weaken the democracy and the protection available to the individual. Under the new arrangement the state became something of little use to the ruled as the rulers took away the normal protections that a democracy makes available to its people.
In this attack of the state against the liberties of the people it was unavoidable that the state would undermine the independence of the judiciary. The independence of the judiciary has very little meaning when separated from the idea of liberty. The independence of the judiciary means the capacity of the judiciary to protect the individual against the power of the executive as well as the legislature. This independence is not something that exists for itself. It is an independence that exists for the benefit of the people as against the ruler. Where the judiciary is unwilling or incapable to confront the state on issues relating to the protection of the individual then it is not possible to talk about the independence of the judiciary anymore.
This is exactly the process that has taken place since the adoption of the 1978 Constitution. In this constitution when the president took power he was raised to a position above the parliament and the judiciary. What that meant was attacks by the president on the people cannot be prevented by the judiciary. The judiciary therefore, could not stand against these attacks on the rights of the people. In fact, in a real sense the rights of the people no longer existed. When the judiciary cannot protect against arbitrary actions of the executive the concept of rights loses its meaning.
What is being demonstrated in Sarath Fonsekas detention as well as the detention of tens of thousands of others and even worse, by large scale forced disappearances, extrajudicial killings, torture and all other means of the deprivation of liberties is that the very notion of the capacity of the judiciary to protect the individual has been lost.
The function of the judiciary is not to provide some kind of legality for the arbitrary actions of the executive. The executive often, while attacking the individual wants to give the impression of legality to such attacks. The very wisdom of the judiciary lies in its very capacity to destroy that kind of legality and to be able to protect the individual at all times. This capacity has been virtually lost in Sri Lanka.
Today the former chief justice of Sri Lanka has become a campaigner for civil liberties in the streets. However, even his voice will be of little use. In his own time he was unable to understand the role of the judiciary to be the unconditional protector of the people against executive power. What was lost during those times will remain lost to the people for a long time to come.
Today the former army commander is just a detainee in a military camp : Prageeth Ekanaliyagoda who disappeared and the nine-year-old child who was raped near a military camp all face the same reality of a country where liberty has been lost. None of them were protected by the judicial institutions of Sri Lanka.
