Columns - FOCUS On Rights

Democratic luxuries that we cannot possess

By Kishali Pinto Jayawardene

Last week, the spectacle of ordinary people battering on the doors of the Colombo High Court and abusing two of the three judges who sat on the Trial-at-Bar in the White Flag case, which case resulted in the piling up of another jail term of three years on Sri Lanka's former Army Commander, was unprecedented by all accounts even in this country's unfortunately chequered history.

Why do these incidents occur?

We may bewail these incidents as much as we may sanctimoniously condemn villagers stoning police stations, which became almost a matter of course during the 'grease yaka' incidents some months back but which incidents by the way have now, almost miraculously (to be sarcastic in the extreme) subsided. However, it is worthwhile to ask ourselves as to why these most disturbing manifestations of clear contempt being shown for the judiciary or for law enforcement occur.

Contempt for an institution or for an individual essentially stems from a profound lack of respect. It may arise due to violent anger as a result of perceived or actual injustice. Insofar as the incidents last Friday (18th) at Hulfsdorp were concerned, it was a peculiar feature that lawyers themselves were involved in some of the instances of abusing the court.

This, by itself, is passing strange behavior in regard to members of a profession who are characterized at least in Sri Lanka for its near uniform obeisance to the judiciary given the unpleasant financial consequences that may flow from angering a particular judicial officer. We saw such obeisance displayed in full during the period of former Chief Justice Sarath Silva even when files were thrown at lawyers, seniors and juniors alike were literally shouted at from the Bench at the slightest questioning of judicial authority, however justifiable that questioning may have been.

In contrast, cacophonous defiance on the part of at least some members of the legal profession at this day and age is explainable only by acknowledging that the country has long gone past that earlier point at which not only respect and awe for the judicial function but also fear of unpalatable consequences, held unruly behavior in check. It is when this danger point is reached that the old certainties no longer remain valid.

Law and order losing all meaning

This is not a case of government thugs stoning the houses of judges as what occurred in the seventies under a different political dispensation which thought thereby, to control judges who were wont to assert their independence to a degree inconvenient to government. Rather, these were spontaneous reactions in the main, propelled by extreme anger in the context of which ordinary rules of behavior break down. In these situations, the notion of law and order itself loses all meaning.

Irrationality becomes pronounced and is met by resistance. In the High Court last Friday, this was well seen when a policeman's irrational attempts to order all those seated (including lawyers) to vacate their seats for another round of security checks prompted a furious outburst from a seasoned criminal law practitioner, prompting the police worthy to beat a hasty retreat.

This is much the same behavioural psychology as members of a village community attacking police stations. In days gone by and apart from the times of civil conflict, ordinary people attacking police stations would have been unheard. Now, it is no longer something to be marvelled at. It is worth while asking ourselves exactly why this change has occurred.

Modern notions of criticism of the judiciary

As serious as the breakdown of trust between the police station and the local community is, the application of this situation to the courts is however a very disturbing phenomenon. This newspaper last week editorially raised the question of contempt of court barring robust discussion of judgments and judicial behavior. Even in South Asian countries, let alone the United States and many Commonwealth jurisdictions, it is accepted that decisions of judicial tribunals are liable to be fairly critiqued as long as the critique does not verge on personal abuse or is mala fide.

This reality has not however dawned on many of those assuming judicial office in Sri Lanka. Not so long ago, a judicial officer who was known more for his unabashed tendency to accept political positions for the sake of the privileges that these bring, declared to this columnist that analysts may 'comment on but not criticize' decisions of courts. When sharply enlightened as to the practice followed in advanced jurisdictions as to the extent to which judgments may be subjected to pungent critique, the most that he could do was to profess total ignorance of these developments.

This speaks to an environment that is unhealthily cloistered, taken in the best possible way. As was editorially remarked on last week, Sri Lanka has certainly not 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.'

Contempt Act still not enacted

Some years ago, during the Presidency of the late Mr Desmond Fernando, President's Counsel, (who was perhaps the last leader of the Bar with demonstrable courage to challenge what was politically unpleasant), the Bar Association of Sri Lanka approved and forwarded a draft Act on contempt of court to the government. This draft reflected common principles already embodied in drafts on contempt of court legislation proposed by, among others, the National Human Rights Commission and the Editors Guild of Sri Lanka. It defined what amounts to contempt, stating explicitly that fair critique of decisions of courts should be allowed in the public interest.

Moreover, it defined what could be legitimately prohibited with reference to the sub judice rule (or comment on pending court matters) and clarified the rule regarding disclosure of sources. The draft Act also addressed the need to stipulate fair procedures for contempt inquiries in a manner akin to the Indian Act on Contempt of Court, particularly in regard to contempt hearings in the appellate courts in Sri Lanka. However, like the Right to Information law, a contempt of court law for Sri Lanka also remains tantalizingly out of reach. These are luxuries that the Sri Lankan people are deemed not worthy of possessing by their rulers or sovereigns as the case may be.

Whatever it may be, the refusal by Sri Lanka's ruling politicians to allow the country to enter the ranks of the democratically enlightened will have certain consequences. Last week, it was unprecedented unruly behavior on the part of crowds and lawyers at Colombo's High Court. What the future will bring us is left only to speculation of the most disturbing kind.

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