By Rajan Philips

Sunday Island of 11th May and 18th May 2014

101-0131_IMGIncreasingly, the grey matter of intelligence, erudition, wisdom and independence is becoming too scarce in Sri Lanka’s judicial mind, and what can you do when you hear of judicial matters such as the now customary cavalier appointments to the Supreme Court, except shrug and sigh: Never mind!

But for lawyer and popular commentator Kishali Pinto-Jayawardena, and co-authors, Jayantha de Almeida Guneratne and Gehan Gunatilleke, shrugging off judicial matters and saying “never mind” has never been an option. So they have brought out a new monograph entitled “The Judicial Mind in Sri Lanka; Responding to the Protection of Minority Rights“, in the midst of questionable and controversial presidential appointments to the superior courts.

The book’s focus is narrower and sharper in that it is limited to a critical analysis of court rulings involving minority rights. Yet, the book and its timing bring into broad relief the hugely troubled terrain of the Sri Lankan judiciary. At the same time, by chronicling and critiquing over 40 individual court rulings in different areas of the law and in judicially significant historical periods, the book brings to light the surprisingly broad scope of judicial complicity in the undermining of minority rights by the legislature and the executive.

There may not be a direct correlation between judicial complicity on minority rights and the parlous state of the judiciary today, but the book illustrates that complicity on minority rights became the slippery slope for the judiciary to slide from the lofty potentials at the time of independence to today’s pathetic pits. The authors say that they chose the title “The Judicial Mind in Sri Lanka” to show that their “focus is unequivocally on the judicial role” and their purpose is “not to dwell on political failures.” The disturbing dialectic is that while political failures have contributed to the failure of the “Rule of Law”, the failure of judicial institutions have enabled the entrenchment of state authoritarianism and the erosion of minority rights.

The authors rightly point out in the introduction that political failure is only part of the story and that Sri Lanka like other British colonies “shared a fundamental contradiction”, as part of the colonial legacy, between the insistence on the force and universality of the law, on the one hand, and the accompanying reservations through the rules of exceptions and differences. They acknowledge, however, that despite this shared contradiction, the judicial trajectories in India and Sri Lanka have diverged quite differently in the two countries, more positively upward in the former and disturbingly downhill in the latter.  The divergence is associated with the “different directions that political liberalism has taken in India and Sri Lanka in the post-colonial period.” What explains these differences? The authors raise the question but regretfully the answer is not elaborate, apart from pointing to “all the dissimilarities in socio-political contexts” and the “contrasting constitutional histories.” In fairness, the body of the book exposes some of these differences through the analysis of court rulings in specific cases but even a brief overarching summary would have been helpful to the reader.

The framework of “political liberalism” provides a useful analytical approach based on its three defining elements: a moderate state with its power fragmented by the counter balancing functions of the executive and the legislature and oversight by the judiciary; an active and able civil society; and basic legal freedoms which include “first generation civil rights” including freedom of speech, association, belief and movement, and property rights.

It would seem that federalism in India has contributed to the positive fragmentation of state power, and it is to the credit of the Indian Supreme Court that it has conclusively established federalism as a basic structure of the Indian Constitution. This is a remarkable development considering that at its founding India’s constitution was far more pre-occupied with the threat of disintegration than any of Sri Lanka’s three constitutions. Additionally, the principles of secularism and linguistic plurality were conscious political choices that have since been entrenched administratively and judicially.

Lack of Judicial boldness

Sri Lanka has gone in the opposite direction politically and judicially, starting with relative constitutional peace at the time of independence, sliding into public security and counter-terrorism pre-occupations, and finally falling into the current postwar quagmire. The book is thus divided into two parts. Five chapters in Part One deal with non-security cases involving language rights, employer-employee relationships, citizenship rights, land and housing rights, and religious rights. Although no cases appear to have been reported on the rights of minority religions to hold processions, a brief chapter (Chapter 5) is devoted to the practical application of the Police Ordinance in light of the foremost place given to Buddhism in the Constitution. Three Chapters in Part Two of the book address cases involving minority rights in the context of public security and emergency regulations, counter-terrorism, and the current postwar situation.

The analyses of individual cases in eight of the book’s nine chapters, including the detailed quantitative analysis of 24 landmark cases involving public security, offer critical insights into Sri Lanka’s judicial mind.  I would limit myself to a few general comments about the book and the purposes it could serve. First, the number of cases identified as cases involving minority rights should be an eye opener to those who never stop asking the ignorant question – just what are the minority grievances? As the authors indicate, the book does not analyze all the reported cases and they had difficulties in accessing unreported judgments. Even politically informed people are mostly familiar with a few celebrated minority rights cases the areas of citizenship, language and counter-terrorism. This book throws light on numerous other cases, including areas such as land and housing, employment and religious rights.

Equally remarkable is the authors’ conclusion that their comparison of the specific treatment of minorities in cases involving citizenship, language, employment, land and religion with the general jurisprudence on corresponding issues revealed a fundamentally different treatment of minorities. In other words, “the judiciary appeared to have been unable to produce consistent jurisprudence across ethnic and religious lines on matters of language, employment, land and religious freedom.” The rot started with the repudiation of Section 29 of the Soulbury Constitution by the legislature and the executive first on citizenship and then on language, with the judiciary meekly falling in line rather than calling its companion branches to order.

As asserted by the authors the Sri Lankan Supreme Court failed to emulate its Indian counterpart in propounding a corresponding basic structure doctrine for Sri Lanka.  Counterfactually it could be said that the Supreme Court might have altered the course of post-independence history by affirming the bold judgments delivered by District Court judges first in regard to citizenship and later in regard to language. In both cases, the District Court rulings were overturned. There were not many instances of judicial boldness in Sri Lanka according to the authors and few will disagree. The celebrated Bracegirdle case, in the last phase of the colonial era, “was a singular instance of judicial boldness”, and was rarely emulated by the Supreme Court after independence.

Ethnic and Class Biases

The exceptions have been mostly in regard to upholding the separation of powers between the executive, the legislature and the judiciary. In contrast, the authors argue “the judicial record in regard to the protection of minority rights was starkly different.” An equally valid assertion could be in regard to the judicial record in protecting the rights and requirements of the working people in such areas as minimum wages, working conditions and trade union rights. Put another way, just as the authors argue that “the judiciary appeared to have been unable to produce consistent jurisprudence across ethnic and religious lines on matters of language, employment, land and religious freedom”, it could equally be argued that the judiciary has been quite biased across class lines as well.

I make this point because class and other socioeconomic biases should also be included as explanatory variables in analyzing judicial complicity in the entrenchment of state authoritarianism. While the manifestation of these biases is universal, a distinct pattern can be seen in the enactment and enforcement of emergency laws in Sri Lanka: “while the enactment of the Public Security Ordinance in 1947 was in response to the General Strike of that year, the subsequent declarations of emergency in 1953, 1958/59, 1961 and more continuously since, have been either to quell a working class agitation or to suppress the protest movements of restive national minorities.”  This is what I wrote in collaboration with the late Upali Cooray and Rev. Paul Caspersz for the MIRJE publication: “Emergency ’79”.

It is appropriate to recall the imposition of Emergency rule, in 1979, in the District of Jaffna in the context of exploring the judicial mind in Sri Lanka, because 1979 Emergency was a watershed event that opened the era of counter terrorism in all the three (legislative, executive and judicial) branches of the Sri Lankan state.  It is also a watershed event in that it is after 1979 that the disparity in judicial treatment of minorities began to be “evidenced more strongly.” The 1980 strike and its suppression virtually shut the working class out of politics, and ethnicity and religion became the determining dynamic in political and judicial matters.

Kishali and her co-authors have analyzed 24 “landmark cases” involving public security in three distinct eras. First, from 1947 to 1979, was the era of the Public Security Ordinance, when the judiciary “appeared to be largely conservative in matters concerning public security. Yet it did not appear to be racially biased at the time.” While this is consistent with my emphasis on ‘class bias’, I would also suggest that the social and political conservatism of Sri Lankan judges was a critical factor in their failure to emulate after independence the boldness that British judges had shown in the Bracegirdle case. It would also be interesting to compare the trials of the accused in the 1962 coup d’état and the accused in the 1971 insurgency for evidence of political and social biases among judges. In coup trials, the judges were more assertively independent of the executive and were critical of the narrow range of punishment prescribed by the law, while the judges reportedly exceeded the sentencing limits in the insurgency trial.  An additional point to note is the observation recently made by Lionel Bopage that the establishment of the Criminal Justice Commission to prosecute the 1971 insurgents was the beginning of political interference in the judiciary.

Be that as it may, the second period of cases studied in the book is the thirty year period (1979-2009) of “counter terrorism rhetoric”. There were “progressive, conservative and regressive judgments involving public security”, however, as the authors note, “many cases involving Tamil individuals suspected of ‘terrorism’ ended in decisions against the individuals.” The progressive judgments “invariably involved petitioners from the majority community or petitioners who no longer posed any perceivable threat to the state.” The judicial mind took a progressive turn during the ceasefire period when the “counter-terrorism agenda had been momentarily suspended.” However, the authors contend that “a complete transformation in the rights dispensation in Sri Lanka” has come about in the postwar period after 2009.

According to them, the judiciary that was first cautious, then deferential, is “now largely irrelevant.” What is more, the judiciary after the war has been “unwilling to vindicate rights in the face of public security regardless of the ethnicity of the individual concerned.” The role of the judiciary has been replaced by Presidential benevolence granting pardon at political pleasure. To the many commentaries reflecting on the fifth anniversary of the defeat of the LTTE, one must add the conclusion offered by Kishali and her co-authors: “The triumph of the regime over ‘terrorism’ appeared to have settled – perhaps permanently – the tension between public security and individual rights in favour of public security.”