Breaking the silence!

The calm ex post facto the storm

Since the sudden ‘fizzling down’ of the hyperactivity in Hulftsdorp I’ve been hounded with questions like “why are you now silent?” “so what will (you’ll) do next?” etc., from many quarters, which (for very good reason undisclosed thus far) I’ve managed to diplomatically avoid; however I must heed my conscience above all other interests and at least try to offer an answer to those that rallied around our call to protect the Rule of Law and the

independence of the Judiciary; those that risked much but stood in allegiance with the cause; those who believed and relied on the several public statements I personally made during this time.

From the top commercial magnate who supports all sides at an election to the daily-earning citizen, the ‘politician-superstar’ has carefully built up a system of ‘dependency on politics’ to get anything done. The only obstacle (as may be seen by some such superstars) standing in the way of absolute dependency is the judicial process!

These last few weeks have often been filled with hours of silent reflection, at times wondering why we couldn’t keep quiet, why I couldn’t ‘say no’ to requests from colleagues to be the ‘public spokesperson’ for our several actions. Having considered all arguments that prevailed upon me I have decided to pen-down my own thoughts at whatever cost or risk of safety, criticism or political backlash; as I’ve often quoted Plato says – “the price good men pay for indifference to public affairs is to be ruled by evil men”!

Thus these thoughts are mine alone; no one else is responsible for these views and they are not stated in any representative capacity whatsoever. I still believe that most lawyers and judges who took a firm stand during this time (some at great peril to themselves) were doing so in furtherance of their oath and affirmation when assuming office; to uphold and protect the Constitution and the Republic, which by implication extends to protecting the Rule of Law and citizens rights; I will remain committed to this ideal in whatever capacity possible, I offer no apology or regret for anything done towards this cause during this time and I do not foresee my silencing any such effort even in the future until God and Nature themselves do so!

A ‘Super Citizen’ not subject to ordinary Law and Courts

It was around this same period I recall hearing of some introductions to the parliamentary canteen; of cereal, golden syrup, eggs and bacon and other such accompaniments usually included in a US or Continental breakfast menu. Of course we tax payers must be pleased that we’re finally looking after the nutrition and personal well-being of our Legislature (perhaps we should also fund a gymnasium where any excesses can be worked out), but the sudden eruption of the impeachment issue prevented my commenting on it at the time. It appears now that breakfast alone was not to be the only difference, for a few days later we heard of a public proclamation that several parliamentarians had blatantly refused to appear before Court as noticed!

The law that we have studied (coincidentally which some of our legislative brethren at Diyawanna have also read – though perhaps lack of practice thereafter looms ominous in its ignorance) only provide an express immunity to the Head of State from appearing before Court; no one else is granted such ‘special treatment’ before the Law. In terms of Article 12(1) of the Constitution we are all supposed to be “equal and to be equally treated before the Law”; now this was the Constitutional Supremacy that we argued in Court and which their Lordships of the Supreme Court accepted without division by determination dated 2 January 2013, which in so far as I am aware only the Supreme Court of this Republic is authorised to interpret and proclaim in terms of Article 125; however that was in terms of the 2nd Republican Constitution of 1978 in the Democratic Socialist Republic of Sri Lanka prior to 13 January 2013.

So now do we have another ‘superior class’ of citizens who are not equal before the Law of the Republic, who decide by themselves whether they will appear in Court or not? Not conceding such ‘supremacy’ exists even for a moment but surely, should not the correct step (at least to show some respect to the law) have been to appear before court and then plead whatever objection or ‘supremacy’ they claimed? As a learned friend had commented in the press so may acts over this period have made a sheer mockery of the Law of Contempt of Court; not only were persons openly commenting on the judicial process, judgments and the court process, they were publicly ridiculing the highest judges of the land! Ironically a former Lord Chief Justice who committed a Hon. Minister to jail for criticising a judgment, this time around appeared to be on the same side with him – politics make strange bed-fellows, noh? In the meantime our dear friend the Hon. Justice Minister wishes to amend the Law of Contempt in Sri Lanka!

Spin doctoring and so-called ‘media freedom’

I did not believe it at first, when someone told me that there is an actual ‘unit’ that runs on the taxpayers’ money to decide on what headlines will ‘hit the press’ the following week and offers ‘advice’ to media bosses as to what they should or should not publish! Over these last few weeks I’ve come across persons from the so-called ‘private media,’ even some friends I had known since our school days in Mt. Lavinia confiding in me – “Sir (or machan) – can we have a statement/voice cut from you... but you can’t say... this and this... or please don’t comment on that part in Sinhalese... we can’t print/play it ...”; I was horrified and immediately questioned as to what had happened to the ‘independent media’; all they could manage was a rueful smile!

So my dear friends it appears that the danger in breakdown of institutions is simply the tip of the iceberg; there is much more that you and I do not see that happens with the ‘spin machines’ that operate beyond our innocent comprehension. It is they who decide whether the public would be discussing a ‘Lamborghini,’ a ‘cricket controversy,’ or a ‘cabinet reshuffle’ next week, as the magician keeps the audience focused on exactly what they want whilst the ‘sleight of hand’ works behind the scenes; accomplishing all that is needed without any attention and unknown to you and I who are supposed to be the ‘supreme sovereign citizen’.

Perhaps even this article may not get published except by the usual (and exceptionally) brave editor and I wouldn’t blame them; leaving my future aside even their own prospects may be placed in peril; the improbability of these thoughts ever reaching the Sinhalese reader is almost a certainty – such are the times we live in, my dear fellow Sri Lankan!

A pseudo-Opposition

Writing on the eve of our military victory over the forces of terror under the title ‘Some perspectives of the war-torn generation’ (published in the press on 27 May 2009), I quoted incumbent President Rajapaksa and congratulated and encouraged him to lead us to that “better tomorrow”; the pristine glory that we have been told stories of as toddlers being lulled to sleep; the glory days of Sri Lanka we read of as students of history and social studies languishing through three decades of a bloody war; this golden soil that many of us did not abandon but returned to having sailed yonder and qualified; thus returned, many with only gloom ahead forsaking greener-pastures, chipping-in and ‘tightening our belts’ as much as possible for the war-effort; suddenly hope sprang in all of us on 19 May 2009. Still there is only that leadership of President Rajapaksa that is visible to us the voter but even the President needs to shed the ‘fake patriots’ who cling on like leeches for their own survival, misleading his administration at every step; if and only if!

There is another ‘if only’ that is our greatest misfortune as Sri Lankans; the lack of a potent, virile and forceful Opposition that can place a cogent challenge to the regime and pose a true and present danger of being elected to govern by the voter; therefore with due apology and respect to all those in the UNP and JVP who stood with the citizens in this struggle, we can’t see either party at that stage yet! I hasten to also add that we must be-warned against being side-tracked by several calculated moves that may appear to be an ‘Opposition’ but are really a continuation of the regime in authority.

During the impeachment issue I was quizzical over several moves and public statements; some in the present regime claimed that the impeachment commenced at the request of the opposition? Then there was that ‘neither here nor there’ attitude of Opposition Leader Wickremesinghe; over the last couple of days we’ve been hearing him “challenging” the regime to hold a referendum (claiming that the Government wants to hold one to extend the term of Parliament) – is this a valid alternative to a presidential/general election that the citizen wants? Who is it that really doesn’t want to face an election but to extend their terms in Parliament (whatever side they are seated on)? Whose agenda is this really? Who are these people trying to hoodwink?

We need to follow these trends carefully because as we have now seen and heard, what meets the eye may not be all that it really is; is this some more ‘spin doctoring’ to mould our public opinion of things to come? There is also talk of a constitutional amendment, so will we now see a repeat effort of a previous regime to offer an ‘all-in-one sugar coated cyanide capsule,’ which the people will have no option but to say “yes” or “no” to the whole package?

‘Politicising’ institutions – citizens, beware!

Finally my fellow citizen, I see another danger which I’d like to place on record with what may very well be my ‘Pelican Brief’ (as in the movie)! Over the last few weeks of the now unlawful impeachment of a sitting Chief Justice, I wonder whether there was also a covert attempt to purposely undermine and reduce the faith of the people in the Judiciary and the Law; I reasonably suspect so for the following reasons.

As things stand now, we have since independence gradually given away more and more of our sovereign powers to our ‘elected representatives’ to such an extent that the concept of representative democracy begs the question, ‘who is the servant, who is the served?’ We don’t actually get to elect whom we want; we only pick from the list that a political party places before us for assent! Through this process and the occasional duty-free Land Cruisers, continental breakfasts, and now even (assumed) immunity from the law and courts; we have gradually elevated those who are supposed to serve us to the status of superstars! We appear to be helpless without them from the birthday of our child, through his/her school entrance, wedding, and finally the funeral as well. Thus from the top commercial magnate who supports all sides at an election to the daily-earning citizen, the ‘politician-superstar’ has carefully built up a system of ‘dependency on politics’ to get anything done.

The only obstacle (as may be seen by some such superstars) standing in the way of absolute dependency is the judicial process! There were still some citizens who believed that they did not need to pursue politicians to get what was justly due to them – they could go to court and despite the very valid complaints of laws delays, etc., there was still, at least some justice that was being ‘seen to be done’; so what happens when that faith is destroyed? Where is the citizen compelled to turn to then?

So my dear fellow citizen, with what may very well be my final appeal to you on this discourse that we began a few months back, my humble plea to you is not to lose your faith no matter how dismal it appears; particularly in your Sovereign Judicial Power that has been vested absolutely and inalienably in YOU, THE CITIZEN and no other; I thank all those that stood with us in our battle to protect it, and though it may very well appear to be over, those that arose appear battered and bruised in the face of the brute force that we were met with; it is important to note that there are several such battles to overcome to win a war!

Spare a thought for those simple lawyers and activists who don’t have the benefit of your tax money to protect them with rows of bullet-proof vehicles and security; they too have young families and children who need their fathers/mothers in the evening when the work is over. YET with all that in their face, some will still continue their sworn journey; new ones will arise where others are made to fall or destroyed; as long as YOU THE CITIZEN keep your faith in the system of governance that you are constitutionally entitled to, as long as you demand to be governed by the Rule of Law and not by power, then you do not need to be subservient or subjugated to any other power or authority – in the Republic of Sri Lanka it is US, THE PEOPLE who are meant to be sovereign (Article 3), WE make our laws [Article 4(a)], WE execute them [Article 4(b)] and WE adjudicate upon them [Article 4(c)]. Thus my wish to you, to us is as it has always been – POWER TO THE PEOPLE!

(The author is a practitioner in Sri Lanka. Having passed out as an Attorney in May 2000, he obtained a Master’s Degree in Laws (Hons) from King’s College, London and completed a pupillage of a Barrister in London. He also holds a Bachelor’s Degree (BA) in Pol. Science, Int. Relations & Journalism from the University of Colombo and a Postgraduate Diploma (Hons) in Int. Relations & Pol. Science from the BCIS. He is a life member of the Bar Association of Sri Lanka (BASL), member of the International Bar Association (IBA) & formerly of the Association of Sri Lankan Lawyers, UK (ASLLUK). He was awarded the ‘Outstanding Young Persons’ (TOYP) for legal accomplishment in 2008. He may be contacted on [email protected] for any clarification of his writings.)