Lessons from the world for Sri Lanka’s judiciary

Argentine Vice President Cristina Fernández was convicted and sentenced this week to six years in prison and a lifetime ban from holding public office for a fraud scheme that embezzled $ 1 billion through public works projects during her presidency. 

A three-judge panel found Fernández guilty of fraud, the first time an Argentine Vice President has been convicted of a crime while in office. Prosecutors said Fernández fraudulently directed 51 public works projects to Lázaro Báez, a construction magnate and an ally of her and her husband Nestor Kirchner, who served as President in 2003-2007. Báez and members of Fernández’s 2007-2015 presidential administration were among a dozen others accused in the conspiracy.

Peru’s President Pedro Castillo, was removed from office this week and detained on charges of “rebellion” after he announced he would shutter congress and install a “Government of exception” – just hours before he was due to face an impeachment vote. 

The public prosecutor’s office announced that Castillo had been arrested and charged with allegedly “breaching constitutional order”, after he was accused of an attempted coup and seen fleeing the presidential palace. Earlier this week, the country’s national Police tweeted that “former President” Castillo had been detained, shortly after congress voted to remove him.

Meanwhile in Mozambique, also this week, the son of a former President was sentenced to 12 years in prison after being found guilty, along with 10 other people, on charges related to a corruption scandal in which the Government concealed large debts, crashing the country’s economy. 

According to court documents, in 2013-2014, State-owned companies illicitly borrowed over $ 2 billion from international banks to buy a tuna-fishing fleet. The Government masked the loans from parliament and the public, later claiming the money was for purchasing military vessels.  

When the “hidden debt” finally surfaced in 2016, donors including the International Monetary Fund cut off financial support, triggering a sovereign debt default and currency collapse. An independent audit found $ 500 million of the loans had been diverted. To date, the money remains unaccounted for.

The crimes committed by these individuals may seem commonplace for Sri Lankans. From systemic corruption, profiteering while using Government authority and attempting unconstitutional means to overthrow an elected Government as witnessed in October 2018 are very much part of the Sri Lankan political fabric. 

What is different however is that in Argentina, Peru and Mozambique, all developing countries, they have a judiciary which is willing and able to uphold the law irrespective of those who are accused of the crimes. Instead, the Sri Lankan judicial system, including the Police, the Attorney General’s Department and the courts, has failed miserably to hold those in power accountable for numerous crimes and have often been accomplices to that impunity.

Supreme Court justices have moved on to take up plum positions within the administration, judges in the superior courts who had either recused themselves or granted glaringly biased decisions on cases concerning political actors have been rewarded by those same politicians. A former Chief Justice currently holds an ambassadorial post, former judges with dubious records have been appointed to the bribery commission and much more.

The only defence the Sri Lankan judiciary seem to have when such concerns are pointed out is to resort to the draconian, anti-democratic and archaic laws on contempt of court, which is not defined by an Act of Parliament in Sri Lanka. Taking cover behind provisions within the Constitution that enables the superior courts to be the sole judicator of the crime, they have managed to silence criticism rather than attempting to become a truly independent pillar of the State.  

As courts around the world fulfil their task as a check on excesses of the Executive and Legislature, Sri Lankans could only watch and lament.