It is unlikely that there would be any serious attempt to discuss the merits and demerits of the split judgment that on Friday found Sri Lanka's war-winning General and former Army Commander Sarath Fonseka guilty on one of the three charges against him in what was commonly referred to as the "White Flag' case, details of which are reported on another page in this issue. The majority decision against the former Army Commander will no doubt be appealed against, but ours is not a democracy that has reached the stature of advanced and mature democracies where judgments are constructively analysed and even criticized without necessarily lowering the public esteem of the judiciary.
In vibrant democracies, such criticism in the media is considered a healthy step towards overall good governance. However, there is no codified law of contempt in Sri Lanka; those in authority liking it that way to keep the media unsure of defined boundaries and limitations. The end result is a lack of critical debate on matters judicial.
In Sri Lanka which is a democratic socialist republic by name, the people are sovereign and their sovereignty is exercised by the executive, legislature and the judiciary. With regard to the people's judicial power, the Constitution says it shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognized, by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, wherein the judicial power of the People may be exercised directly by Parliament according to law.
It is crystal clear that in our Constitution the courts are a vital democratic instrument required to uphold the supremacy of the people's sovereignty. If this is so, the people should be free to analyse, commend, comment or criticize a judgment within the confines of temperate language and with due courtesy to judicial officers. The campaign for the codification of the contempt of court law began in 2002 with the appointment of a parliamentary select committee headed by the renowned Lakshman Kadirgamar, PC, then an opposition MP, but the committee's deliberations were abruptly terminated with the dissolution of that Parliament in 2004, never to resume since.
The fact that Friday's High Court decision was divided buttresses the argument that such judicial decisions require learned discourse and the country will be the poorer in its absence. As a result of this vacuum it will only open the door for not just critical analysis in international legal journals read by a select few of learned luminaries, but also lead to scurrilous, vituperative and often wholly absurd comment in spurious websites that seem to be increasingly lapped up by a growing number of ordinary people in the face of these stringent and archaic measures imposed on the traditional media.
Whatever the merits and demerits of the separate judgments that eventually saw the former General being sentenced to three more years in jail, the news from Hulftsdorp on Friday caused much pain to his supporters and the apolitical who are grateful to both the political leadership and the military leadership that freed this country from the clutches of 30 years of terrorism. The retired General won more than 4 million votes at the last presidential election and the events that unfolded immediately thereafter smacked of political vindictiveness in no small measure.
The drumhead court martial was proof of this. Make no mistake, the retired General had anything but a squeaky clean record as Army Commander. His democratic credentials were abysmal. The notorious persecution of journalists during his term in office and the dreaded 'white van' syndrome have been placed very much at his door. He brooked no criticism of his own action in the media.
His loose tongue about what he would do to the incumbent president should he have won the presidential election was his unmaking. But yet, despite all this, two things stand out if this country wishes to remain a politically democratic state; one is that justice must not only be done but it must manifestly be seen to be done, and secondly, that the prosecution and persecution of one's political opponents must not assume proportions where the punishment does not fit the crime. In the comity of nations, to which Sri Lanka belongs, these are fundamental ingredients of a democratic society.
None can contest the claim that the retired General gave his heart and soul to achieve the objective of militarily defeating the LTTE terrorists. He almost died in an LTTE suicide attack but survived to lead this nation's military to a historic victory. But sadly, history is being rewritten. He may have been the world's best commander, but he was a political novice. He should have learnt a lesson or two from the life of General Douglas MacArthur, who made an unsuccessful bid to enter politics as a Republican Party nominee for the US Presidential race in 1948. The highly-decorated American General went on to serve his nation in one military campaign after another until President Harry Truman relieved him during the height of the Korean War for not respecting the authority of the president. Though the Truman move created a constitutional crisis, MacArthur remained popular and was never put behind bars.
Retired General Sarath Fonseka should have been to Sri Lanka what MacArthur had been to the United States. But Sri Lanka is not the United States where despite global criticism of its foreign policy replete with double standards and hypocrisy, there is room for dissent and the public confidence in justice and democracy is still at a high.
Increasingly, the perception that those who oppose the Government will be severely dealt with while any rascal who supports it can get away scot-free with any misdemeanour is gaining currency in the country. Events that followed the intra-party rivalry at the recent local council elections, the appointment of a parliamentary committee to probe a former chief justice and a passage of a law to take over purportedly underperforming business ventures are cited as text book examples of this scheme of things.
The Lessons Learnt and Reconciliation Commission (LLRC) will be handing over its report today to President Mahinda Rajapaksa. While the commissioners dwell on an issue that bedeviled the nation for several decades if only our chronic 'democratic deficit' is better balanced and both, our institutions and our society are de-politicised, much of what is wrong in this country could be rectified.