| by Harini Sivalingam
( January 18, 2013, Toronto, Sri Lanka Guardian) Sri Lanka’s Rajapaksa regime has turned its eyes to the country’s judiciary for its next line of attack. In a group that includes civilians, journalists, elected officials, humanitarian workers and human rights defenders, the judiciary was always under a tight leash but recent developments indicate that they, too, are no longer immune from immediate threat.
With this week’s overwhelming vote by parliament in favour of the impeachment of Chief Justice Shirani Bandaranayake, and President Mahinda Rajapaksa’s unabated endorsement of that move, Sri Lanka is further descending into authoritarian rule. The Sri Lankan bar and judiciary are rightly enraged over the illegal and undemocratic move by the Rajapaksa regime — one that challenges the independence of the judiciary and further weakens the rule of law on the island.
The latest move by the Sri Lankan government has touched the nerves of the international community. For those who cherish democracy and the judicial system that is inherently a part of it, this latest move is offensive to the core. It was not a surprise, therefore, that Prime Minister Stephen Harper condemned the impeachment on Jan. 13, calling it a “highly politicized (decision) lacking transparency.” He went on to “call on the government of Sri Lanka to respect the country’s constitution and the independence of its judiciary and change course immediately.”
The course the prime minister alludes to includes the Sri Lankan government’s continued failure to abide by any international standards in respecting and promoting human rights. Civil and political rights of individuals continue to be breached. This includes arbitrary detention, extrajudicial killings, rape and sexual violence, summary executions of journalists, and threats to human rights defenders. Further changes include the recently enacted 18th amendment. It signifies constitutional change that produces a permanent shift in favour of the elimination of critical checks and balances, giving increased powers to an already powerful and autocratic president.
Sri Lanka and the Liberation Tigers of Tamil Eelam stand accused of war crimes and crimes against humanity for their conduct in the last phase of the war in 2009. Sri Lanka’s Lessons Learnt and Reconciliation Commission failed to offer any meaningful answers to victims of the war. Despite calls for an international, independent investigation, two damning reports commissioned by the Secretary General of the United Nations and a resolution by the UN Human Rights Council, Sri Lanka continues to reject any attempts for accountability of its breach of international law.
Notable participants in the breakdown of the rule of law in Sri Lanka are the impeached chief justice, her judicial colleagues and the bar. With some exceptions, Sri Lanka’s bar and judiciary have unwittingly contributed to their own demise. The judiciary has failed to protect civilians against state action. A UN estimate indicates that more than 100,000 civilians were killed during the war and over 300,000 were held in makeshift camps — yet the judiciary failed these victims without proper judicial intervention.
Lawyers, judges, some civil society actors and international governments may be appalled about the impeachment of the chief justice. But for those who continue to suffer from a lack of action, in particular the Tamil population, this is a reaffirmation of the injustice they routinely endure.
Our experience is different in Canada. The judiciary provides a balance between the executive, legislative and the judicial branch. In Sri Lanka, it is an extension of the executive — in particular, President Rajapaksa. This judiciary endorses government policy rather than challenges it. If the Sri Lankan government and judiciary are to salvage the conditions for peace it squandered in the 3 1/2 years since the end of the war, it must put in force the rule of law and build confidence in the legal system.
The judiciary must stop acting as a spineless authority. Independence cannot simply exist in words; it must be embedded in the system. Until then, Chief Justice Bandaranayake’s impeachment will serve as a reminder that one must not wait to speak until injustice comes knocking at our very own doors. In the end, neither she nor the people she served received justice.
The future remains bleak, but the Harper government’s commitment to raise the “troubling development” at the next Commonwealth Ministerial Action Group is a promising next step. In the wake of this development, it is time for the prime minister to carry forward his commitment to boycott the Commonwealth Heads of Government meeting later this year. This is a necessary action that would be just and fair in an environment of growing injustice.
Harini Sivalingam is a lawyer and human rights activist. She is currently pursuing a PhD in Socio-Legal Studies at York University in Toronto.