The object of this article is to point out an important aspect that has been ignored in analysing the crisis facing Sri Lanka, and also to explain what the end of the crisis could be, which I venture to do from the perspective of a critic who has foreseen the impending crisis in advance and had cautioned the authorities and the public about it repeatedly.
A person who has gone too far on a wrong track may find it difficult or even impossible to get back to the right path even if he realises lately that he was trekking on a wrong track. This doctrine applies equally to social institutions, administrative machineries and states, albeit with some variations. The Heads of State who assumed the power after the establishment of a presidential system of governance in Sri Lanka, and the rebel leaders like Wijeweera and Prabhakaran, who attempted to usurp the political power through violent rebellions, can be considered as leaders who have proceeded so far on wrong paths that it was not easy for them to turn back.
Even a machine may soon become unusable and ineffectual if it is continued to be used when faults occur, without rectifying them. The same principle applies to the state as well. If the state does not follow a consistent policy of rectifying the errors which may occur from time to time and maintaining the state machinery well, the state too, might become a dilapidated entity, ultimately ending up being a failed state.
Monitoring the functioning of the state
Many countries adopt and maintain special institutions to monitor the performance of the state. The neighbouring India maintains a permanent commission called “Sarkariya Commission” for that purpose. The Sarkaria Commission was set up by the central government of India against M. Karunanidhi, Chief Minister of Tamil Nadu, when he clamoured for more autonomy for the state government. The Sarkaria Commission’s charter was to examine the central-state relationship on various portfolios and suggest changes within the framework of Constitution of India.
The commission has been named after Ranjith Singh Sarkariya who was appointed the Chairman of the commission when it was established in 1983. He was a retired Supreme Court judge. I had the opportunity to meet him in a workshop held in New Delhi to discuss about the functioning of the judiciary in the SAARC, The South Asian Association for Regional Cooperation, which I attended as a participant. Ranjith Singh Sarkariya was the chief guest of that workshop. A group of judicial officers and a group of lawyers nominated by SAARC countries also participated in this work. It was organised by the UNESCO branch in India.
Apart from me, Sinha Ratnatunga, the editor of the Sunday Times who was also a lawyer and Asanka Welikala, a prominent personality in the field of constitutionalism also participated in it. I, who was neither a lawyer nor a judicial officer, was invited to attend the workshop to elucidate the facts about my struggle against Chief Justice Sarath Silva. I must state that it was the presentation I made that received the most attention of the judicial officials and lawyers who participated in the workshop. My presentation included the factors that led to the conflict with Chief Justice Sarath Silva, and an analysis on how that conflict was continued.
One of the points mentioned at the conclusion of my speech led to an emphatic discussion in that workshop. When considering the crisis of Sri Lanka, that particular point I had raised in my presentation could be described as an important factor that has been completely ignored by Sri Lanka. I concluded my presentation by stating that the Parliament had moved two impeachments on two separate occasions against the corrupt chief justice to remove him from his position, but the president prorogued the parliament ending the session of the parliament in the first instance to protect his colleague and on the second occasion the parliament was dissolved by the president.
At the end of my presentation, a senior lawyer of India who participated in the workshop stood up and asked what the Sri Lankan Bar Association did to remove the corrupt Chief Justice from his office when the attempts to impeach him by the Parliament failed, while explaining the policy followed by the Bar Association of India in a similar situation.
Identifying the culprits
As explained by that lawyer, an impeachment against two judges of the High Court of India on corruption charges was presented to the Parliament, but due to some reason, the Parliament was not able to take the impeachment to a logical conclusion. Since then, the Indian Bar Association followed a policy of boycotting the appearance for cases heard before the two judges concerned. In the end, he said that the two judges were compelled to resign from their positions to avoid humiliation. With that, he asked as to why the Bar Association in Sri Lanka did not follow a similar policy.
What happened in Sri Lanka is fundamentally different from what happened in India. There only a small group of lawyers followed a policy of rising against the Chief Justice, which brought the judiciary into a humiliating state. A large number of people took maximum advantage of the situation by adopting a policy of defending the corrupt Chief Justice. There were other types of dancers who joined the procession. The owners of the mass media organisations that had lawsuits got their cases settled in their favour by adopting a policy that gave maximum protection to the Chief Justice in this crisis, through their publications and channels. Some politicians and certain political parties also took maximum advantage of that crisis by adopting a policy that supported the Chief Justice. Two political movements came forward to defend the corrupt Chief Justice and to safeguard his survival at that difficult moment, and for that, they obtained in return, judgments from the Chief Justice that added to the fame and reputation of their movements.
According to what I learnt later from a university teacher who was attached to one of the political movements and also had participated in discussions held with the Chief Justice occasionally, they had received instructions from the Chief Justice on how to file court cases which are of interest to them. It was the Chief Justice who drafted the Fundamental Rights petitions for them. The irony was that the panel of judges who heard that petition was chaired by the Chief Justice himself, who has drafted the petition. The extent of the pathetic and comic situation into which the judiciary and the political system of the country had fallen into, even at that time, could be discerned from this incident.
It is not only the misconduct or corrupt activities of the people who commit errors that can make a democratic political system weak and dilapidated. Even those who support the offenders when wrongdoings are being committed, and also those who are responsible for preventing such occurrences, but refraining from doing so, and letting the mistakes pass unheeded, should also be treated as active partners of such offenses.
It can be further explained as follows. If the individuals who had supported the corrupt Chief Justice had abstained from doing so and stood up against him, and the opposition political parties and the Bar Associations which had the responsibility to act against the corrupt Chief Justice, had fulfilled their responsibilities properly, the Chief Justice would have been compelled to give up his position. When we requested the Supreme Court to conduct an investigation into the corruption charges levelled against Attorney General Sarath Silva, all the judges of the Supreme Court except three judges expressed their agreement to conduct an investigation. This shows that if others had fulfilled their responsibilities, there was a real possibility of ousting Sarath Silva, who was later appointed as the Chief Justice.
Had it been the case, the country would have had a better judiciary than the existing one, and perhaps the country would not have fallen into a state of failure. Same principle is equally applicable to all serious mistakes that have been committed in the political level of the country.
Another illustration that can be cited to explain this situation is as follows: According to the ‘78 constitution, a member elected to Parliament from a recognised political party couldn’t change the party without losing his/her seat. But when President Chandrika wanted to strengthen her government by persuading a group of opposition MPs to join the government, she was able to create a situation with the support of the judiciary (Chief Justice Sarath Silva) in which the MPs defected from the opposition could join the ruling party without losing their seats. It can be considered as an instance that led to distorting the Constitution severely. But the main opposition party in general or any other political parties represented in the Parliament refrained from protesting against this horrible violation of the Constitution. Consequently, this system introduced in violation of the Constitution has become a common feature of the political system. This situation has not only weakened the opposition parties but also led to distort the political system and accelerate its collapse. Along with that the Constitution, the supreme law of the country became an object of ridicule.