Sunday, August 22, 2010

The quick dying of democracy in Sri Lanka

By Kishali Pinto Jayawardene | The Sunday Times

Last week, we had a retired judge advising the media, in the pages of this newspaper, not to cringe before authority. Eminently valuable as this advice may be (and one is not being irrepressibly sarcastic in this regard), this same exhortation should be directed towards judges and retired judges themselves as well as law enforcement officers and those serving in academia. For whatever it is worth, journalists have been beaten up, killed without compunction and threatened in many other ways.

Despite this, many in the print as well as electronic media still try and uphold the virtues of impartial comment and reportage. Contrasted to this, if one looks at other areas of functioning, it would seem that the extent of resistance has been far easier to erode.

During the past decade, for example, the walls of Sri Lanka's judicial institution crumbled in many respects with least resistance from those in judiciary, academia and the professions. The effects of this crumbling are still evidenced.

Attacks on parliamentarians

Two matters in this regard warrant serious concern in the current environment. First is the complaint of the former Army Commander and Sri Lanka's serving four star general, (who has now been stripped of all these glories amidst the satirical gaze of the world), that he is being prevented from attending meetings of consultative committees, prevented from attending parliamentary discussions abroad and deprived of his privileges in manifold other ways.

This is quite apart from his being indicted on an increasingly bewildering array of charges. Secondly, the assault and beating of members of parliament belonging to the Janatha Vimukthi Peramuna (JVP) by police officers inside the precincts of the Galle Police Station with the superior officers standing by, when they went to make a complaint in respect of the tear gas attack and baton charge of protestors demanding that the former Army Commander be released. Position these acts within the general framework of deterioration of the rule of law in this country and we have further significant markers in regard to the quick dying of democracy in Sri Lanka.

The right to protest peacefully

For those of us who are not unduly concerned about parliamentarians and their privileges or for retired army commanders who take to politics, all this may not be any great matter. However, attacks such as these have a greater significance quite apart from our distaste for politics or for politicians. The Galle incident is remarkable of and by itself. Countless judgments from the Supreme Court have upheld the right of peaceful protest. In the seminal Ratawesi Peramuna Case ([1994] 1Sri LR 01) for example, the petitioners were participants in a "movement" called the Ratawesi Peramuna formed in November 1991 and were arrested under Emergency Regulations prevalent at that time on the basis that they were engaged in a conspiracy against the government after police officers had eavesdropped on their discussions exhorting citizens to topple the Government. The arrests were held to be unconstitutional, violating the rights of speech, expression and association.

The Court, in a strongly affirmative judgment by ARB Amerasinghe J relating to the right to protest, observed that '….as a matter of law, merely vehement, caustic and unpleasantly sharp attacks on the government, the President, Ministers, elected representatives or public officers are not per se unlawful….. '

It was pointed out that 'Members of the public must be free to influence intelligently the decisions of those persons for the time being empowered to act for them which may affect themselves. Every legitimate interest of the people or a section of them should have the opportunity of being made known and felt in the political process.

Freedom of speech ensures that minority opinions are heard and not smothered by a tyrannizing majority. It is the only way of enabling the majority in power to have an educated sympathy for the rights and aspirations of other members of the community." This injunction is still one of the most powerful pronouncements made by the Sri Lankan judiciary in this context in the past decade. However, in reality, such judicial precedents are not worth the paper that they were written on, in this day and age.

The police and fabricated cases

The correlated facet of the Galle incident relates to the failing of fabricated cases against the opposition members of Parliament. This has not been, by any means, a new development. There are an increasing number of cases where the police file fabricated cases against victims of police torture, in an attempt to intimidate them into withdrawing cases that they have lodged in respect of the torture that they have been subjected to. Reasons are not given for arrests and it is only later that the victim finds the nature of the fabricated charge against him/her. In this respect, cringing before authority is taken to most sophisticated levels indeed.

But what action can be taken against such offenders of the law in police uniform? Can we expect the Inspector General of Police (IGP) to act in all sincerity? Sri Lanka's constitutional stipulations regarding reform of the police service have now been suspended in mid air. The 17th Amendment, when setting up the National Police Commission (NPC), did not give it the powers of appointments, transfers and disciplinary control of police officers only. It also mandated, by Article 155 G(2), the establishing of meticulous procedures regarding the manner of lodging public complaints against police officers and the police service. The NPC was directed to recommend appropriate action in law against police officers found culpable in the absence of the enactment of a specific law whereby the NPC can itself provide redress.

These procedures were meant to hold both the police officer concerned and officers of the NPC accountable so that both will act in strict compliance with the law. What we had however was a complete non-implementation of these procedures by an NPC beset with problems over police promotion schemes and the like. Later, though the NPC in its second term put such a Procedure in place, it was not implemented satisfactorily. Now the NPC itself is non-functional, to all intents and purposes.

Returning to the 17th Amendment

Despite this dismal state of affairs, informed and committed public opinion needs to be expressed in regard to the deterioration in the rule of law. Public agitation around the 17th Amendment needs to be broadbased. The reconstitution of the CC and the independent commissions should not been seen as a question affecting an elite layer of public opinion only. A well functioning NPC benefits most, those people who do not have easy access to privileged levels of governance. This is the challenge presently before the Sinhala and Tamil media which needs to take this issue directly to the people.

The preeminent role of the judiciary

On its own part, the judiciary in this country needs to be aware of the fact that 'with no constituency, no purse and no sword, the judiciary must rely on moral authority.' The upholding of such moral authority cannot come from harsh verdicts alone or from arbitrary rulings in contempt of court cases.

In the democratic constitutional order, the judiciary is an independent pillar of state, constitutionally mandated to exercise the judicial authority of the state fearlessly and impartially. It has a vital function as the interpreter of the Constitution, the arbiter in disputes between organs of state and, ultimately, as the watchdog over rights protections guaranteed in the constitutional document.

We need to see public opinion demanding that this role is restored to its pristine state before this country descends into constitutional anarchy.

© The Sunday Times

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