Tuesday 20th of April 2021

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Perfecting the Failure


2020-12-04 5253

(Victor ivan)

 

The entire State of Sri Lanka in general and the Legislature, the Executive & the Judiciary in particular i.e the three main constituent elements of the State, are in a state of deterioration and complete breakdown caused by excessive degeneration and resulting impotence and incompetence.The entire State has reached a level where it cannot be revitalized by simple reforms without recreating the entirety of systemic apparatus. In this backdrop, Gota appears to be failing not only because of his incapacity, but also the failure of the State which he has inherited to govern, which is beyond revitalization, has contributed to this situation.Therefore, changing the operator alone is not the solution to the problem. What the country needs today is not a competent operator, but an innovative trendsetter who dares to reconstruct and recreate the machinery which is rendered completely inactive. Yet, not only the public, but also the political parties of Sri Lanka are used to perceive the problem as an outcome of not having a good operator rather than a problem of not having a competent trendsetter to redesign the machinery.

 

Paucity of thinking

 

A democratic political system should be subjected to constant surveillance and monitoring to ensure its survival and wellbeing. Socrates compared himself to a gadfly created to live on the body of the sluggish but the Nobel and thoroughbred horse called democracy and to awaken and rouse it by occasional bites. Modern democracy is more complex than it was during the time of Socrates. The extent of surveillance it needs is also very high. When errors occur, they must be identified immediately and corrected without delay. A democratic system, with proper maintenance and checks and balances can be used for centuries successfully. But in the absence of proper maintenance, it can destroy itself in a matter of decades. That is what has happened to Sri Lanka.

A democratic political system can be considered as a political system of the people in which the sovereignty of the State lies in the people. It is an inalienable power of the people.The power held by the legislature consisted of the members elected to the parliament by the public, the executive power exercised by the President who is also elected by the people and the authority exercised by the judiciary established by law can be described as three entities of unique powers derived from the sovereignty of the people.

Thus, being a public system, the commitment to, and the perception of the people of it, equally impacts on the well-being of the system. But it is important to remember that it is not a system that the people of Sri Lanka have fought and won. It was a legacy of the British rule. But the Sri Lankan society lacked the maturity needed to maintain this advanced system of governanace in an optimal manner.

 

Liberalism

 

The ability to disseminate the knowledge needed to maintain a democratic political system in an optimal manner lies in the liberal thinking that inspired it. But the political thinking of Sri Lanka cannot be considered to have been adequately nurtured by liberal thoughts.

On the contrary, liberalism has made a significant impact on nurturing the political thinking of the Indian independence movement. It can be considered the major philosophy that influenced it, to a great extent. Mahatma Gandhi who lived a simple half-naked life discarding western costumes and adopting Indian loincloth or short dhoti, can be considered the one who created the Indian version of liberalism though within some limitations.

In the sphere of liberalism, Sri Lanka can be considered as a desert. There was hardly anyone among the political leaders who can be included in the category of liberal thinkers in our country.In the early days of modern Sri Lankan politics, there were a few liberal minded men among the leaders of burgher community, but hardly anyone among the leaders of the Sinhala, Tamil and Muslim communities. Despite the availability of a large number of books being published on liberalism in the world, not a single important book on the subject has been published in Sinhala. The number of books on Marxism translated into Sinhala can be more than 100. The youth of the generation of ‘56 in Sri Lanka knew about the Russian Revolution, the Chinese Revolution and the Cuban Revolution by heart. But they were mostly unaware and oblivious of the English, American and French Revolutions.

It was Anagarika Dharmapala and Arumugam Navalar who can be considered as the indigenous thinkers who have influenced the psyche of the Sinhala Buddhists and Tamil Hindus respectively and impacted on the formation of the thinking of Sri Lanka. Under the circumstances, the ideology of the JVP can be considered as a combination of some elements of Marxism and some thoughts of Dharmapala while that of the LTTE can be considered as an amalgam of some elements of Marxism and some thoughts of Navalar.Both these ideologies can be considered as two streams of thought that have weakened the recognition of liberal democratic ideals.

 

Violation of the Constitution

 

Continuance of a political system without updating it as prescribed by the system itself can be considered as the main factor that has contributed to the collapse of the political system in Sri Lanka. The Constitution can be considered the main foundation of a democratic political system, and when a different political culture that disregards the Constitution and violates it, takes the hold of the prevailing political culture, naturally it will lead to degeneration and collapse of the system.

The number of instances where Sri Lanka has violated the Constitution is numerous .The extent of profanity caused by such violations is also huge and none of them has been properly corrected subsequently. The Indian Constitution was once violated during the rule of Indira Gandhi.The judiciary, the legal community and legal scholars posed a strong opposition to the move.But Indira Gandhi was capable of subduing all the protests and achieving her nefarious aims. However, following her defeat in the 1978 election, two new amendments to the Constitution, the 43rd and 44th Amendments were introduced nullifying the effects of the previous amendment. Moreover, the Supreme Court of India introduced a legal principle on the basic structure of the Constitution limiting the capacity of politicians distorting the Constitution for their ambitious purposes, using the majority power they hold in the parliament.

 

Our incivility
 

In many instances where the rulers of Sri Lanka have violated the Constitution, it was only on the incident involving Chief Justice Shirani Bandaranayake that the judiciary has adopted a strong policy for the defence of the Constitution. In many instances, what the judiciary has done was to gang up, directly or indirectly, with the rulers, and adopt a policy that supported the violations of the Constitution by the latter. From time to time this blunder has been repeated over the last 70 years, but neither the Parliament nor the Executive has made any attempt to rectify the situation.Neither the Bar association nor the scholars of the legal field have made any significant attempt to change this ugly situation. Further, the Judges of the judiciary including the Chief Justice do not appear to have made any significant effort in this regard.

On February 6, 2003, a strange incident happened in the judiciary.A teacher called Tony, involved in a labor case, having been unsuccessful in his attempt to obtain some reports pertaining to his case, made a complaint to the Judicial Service Commission (JSC). As there was no reasonable response from the Judicial Service Commission, he filed a fundamental rights petition against the three members of the JSC chaired by the Chief Justice, making three of them the respondents of the case. Despite the objections raised by the petitioner, the petition was heard before a three-judge bench which included the Chief Justice who was also a respondent of the case. Instead of hearing the petition, the Chief Justice sentenced the petitioner to one year imprisonment with hard labor. Apart from that he was severely beaten by the prison officials when he was imprisoned. This incident drew strong international attention.

Dato 'Paramkumaraswamy,the United Nations High Commissioner for Justice, arrived in Sri Lanka to see Tony, when he was being treated in hospital after being brutally beaten in prison. Before leaving Sri Lanka, he held a media briefing and called on the Sri Lankan legal community to stand up and protest against the wicked Chief Justice.

 

Deaf and dumb Parliament

 

But the Parliament of Sri Lanka did not do anything to investigate the incident.It is the same policy that is being adopted by the Parliament in respect of all the other matters of serious nature taking place in the country.

The Members of Parliament transacting business with the government illegally and with the protection and patronage of the rulers can be considered as a main factor which has led to rot the entire system of Sri Lankan institutions and diminish government revenue.This situation has not only corrupted the Parliament but also has led to deprive the Parliament of its legitimacy.

Despite this being an obvious matter, strangely the Parliament has not even bothered to have a debate on it or to investigate it. Although the Speaker has a duty and responsibility to correct the situation, so far, no Speaker has taken any steps to explore the matter.

In a democratic political system, no person should be subjected to torture, inhuman or cruel punishments. No person shall be arbitrarily arrested or forcibly detained.According to the Constitution, implementation of law and meting out justice and enforcement of law shall be just and fair. Does such a situation prevail in the country? Had there been such a situation in the past within our memory?

If legal issues are dealt in keeping with the spirit and the vision of the Constitution, how can a person like Shani Abeysekera be arrested and kept in remand custody for such a long time when a serious pandemic situation prevails in the country? How could a prominent human rights lawyer like Hejaaz Hizbullah be detained for so long under the Prevention of Terrorism Act without a just cause?

 
Shani Abeysekera

 

Shani Abeysekera earned the reputation of a prominent criminal investigator not because of the investigations that he carried out during the Yahapalana regime.He earned this reputation in consequence of significant criminal investigations that had been carried out before that.In political sense, he has not become a controversial figure at that time. So he was praised by all, regardless of political affiliations. The extent of praise showered on him at that time was immense. So much so, a five-judge panel of the Supreme Court openly commended him for his commitment, impartiality and professionalism in the field of criminal investigations.He had been praised four times by former Attorney Generals for his excellence with certificates being issued in appreciation. He had also been honoured with special commendations by former IGPs on twelve occasions. Although the Criminal investigations that he has conducted during the Yahapalana regime appear to have had a political background, they were not based on false or fabricated crimes. They can be considered as crimes actually committed in the country at that time.

The abduction and brutal assault of journalist Keith Noir is not a lie. Kidnapping of eleven youths for ransom and later killing them is also not a lie. The murder of Lasantha Wickramaratunga and the abduction and disappearance of Eknaligoda is not a lie. All these can be considered as violent crimes that took place in the country during that period.The responsibility of investigating into these crimes cannot be considered as a thing that Shani had assigned upon himself arbitrarily and on his own accord. These were responsibilities assigned to him in accordance with the law; and the investigations have been carried out under the guidance and supervision of the Attorney General and the judiciary. If at all he has prosecuted the suspects who are allegedly responsible for these crimes, then how a policy that suspends the service of this criminal investigator and prosecutes him could be fair and conformed to the law.

 

The failure of the country

 

How can a policy adopted to produce such people before the court at a time when the country is afflicted with a fast spreading serious pandemic situation and remand them the way the suspects were remanded during normal times, be justified? Is it really necessary to remand a person to keep him in custody? Couldn’t they be placed under house arrest under police check? Shouldn't it be a similar policy that should have been adopted regarding people like Shani at a time when the country is facing a fatal pandemic?

It is not difficult to understand that one of the main objectives of the government is to get all the cases filed against it during the Yahapalana regime, made null and void. But working towards assisting the government to achieve this objective is a thing that the judiciary should not have done. The change of government cannot be considered a matter that the judiciary ought to have concerned with. If the judiciary does not have the courage and the ability to administer justice in accordance with the law of the land and without political interference, then from that moment onwards, the judiciary will become a failed institution. Along with that the failure of the country will be perfected.

 

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