8/11/2019 Taking a Long Hard Look at Our 

http://slidepdf.com/reader/full/taking-a-long-hard-look-at-our 1/4

Taking A Long Hard Look At Our

‘Barbarism’

| by Kishali Pinto-Jayawardena

ourtesy! "#o$us on %ights’ The &unday Times

' &e(tember )*! )+*,! olombo! &ri Lanka uardian. The twin elements o/ a (ro(erly

/un$tional 0udi$iary and (oli$e distinguish a demo$ra$y /rom barbari$ regimes1 &urely

there $an be little argument about this /undamental (rin$i(le1

But &ri Lanka /ares ill on this unyielding measure1 2e see this most re$ently in regardto the 34a (ro4in$ial $oun$il (olls marked by unsettling (re-(oll 4iolen$e and the

(al(able inability o/ ele$tion o//i$ials together with the (oli$e to $arry out their

statutory /un$tions1 These are ominous signals o/ worse to $ome as the $ounty /a$es

national (olls ne5t year! 6uite a(art /rom who wins or loses this &aturday1

Poli$e as "(risoners o/ war’

8/11/2019 Taking a Long Hard Look at Our 

http://slidepdf.com/reader/full/taking-a-long-hard-look-at-our 2/4

7nterestingly there is in$reasing (ubli$ noti$e o/ the (light o/ the 8e(artment o/ the

Poli$e due to ram(ant (oliti$i9ation1 The "#o$us on %ights’ $olumn on the 34a

(ro4in$ial (olls being more o/ a battle/ield than an ele$tion 'the &unday Times! August

:*st )+*,. has (ro4oked unusually tren$hant agreement1 %etired 8e(uty 7ns(e$tor

eneral o/ Poli$e '87. %ohan Abeywardena’s identi/i$ation o/ the 7ns(e$tor eneral

o/ Poli$e '7P. and his o//i$ers as "(risoners o/ war and made to work as su$h’ 'the&unday Times! Plus )! at (age ;! &e(tember <! )+*,. is a $ase in (oint! whi$h

inad4ertently missed s(e$i/i$ a$knowledgement in these $olumn s(a$es immediately

therea/ter1 This is a $olour/ul albeit highly disturbing analogy1

#ormer 7P #rank de &il4a’s (in(ointing o/ the "(re$arious’ situation o/ the (oli$e

/un$tioning under the "administrati4e authority and $ontrol o/ a (oliti$al a((ointee!

the &e$retary! 8e/en$e’ 'the &unday Times! Plus )! (age *+! &e(tember *,! )+*,. is

another e5$ellent illustration1

These re/le$ti4e (oints o/ 4iew merit serious (ubli$ $onsideration1 As $ategori$ally

(ointed out by these retired senior o//i$ers! the 8e(artment o/ the Poli$e has to be de-

(oliti$ised1 7ts (ro/essional $ommand stru$ture needs to be restored /orthwith1 This

 was also what the Lessons Learnt and %e$on$iliation ommission 'LL%. $alled /or in

 4ain1

3ndermining 0udi$ial honour

 And what (ray o/ the 0udi$iary= 7n dis$ussions last month in Hambantota with senior

(ro4in$ial lands administration o//i$ials struggling to (ro(erly im(lement the lawagainst $oer$i4e (oliti$al (atronage! u(roarious laughter eru(ted when the role o/ the

&ri Lankan 0udi$iary at the 4ery highest le4els $ame to be dis$ussed1 A$$ustomed to

mutterings on the sub4ersion o/ the 0udi$ial /un$tion rather than outright (ubli$

$ondemnation! this rea$tion took me somewhat by sur(rise1

>orti/yingly! the selling o/ 0udi$ial honour /or a 4eritable mess o/ (ottage now a((ears

to be a matter o/ $ommon knowledge! /rom the 4egetable seller to the (ubli$ ser4ant1

ranted! the institution o/ the 0udi$iary has ne4er been /ree /rom $ontro4ersy1 Postinde(enden$e! our 0udges should ha4e been /ar more $ourageous in asserting their

$onstitutional role1 And the mu$h maligned /ramers o/ the *?<@ onstitution were not

the only ones to blame1 %ather! the le/tist $oalition engineering the *?<) onstitution

(a4ed the way /or the disasters that /ollowed1 This is a /a$t that is $on4eniently lost

sight o/ when annual $ommemorati4e $eremonies are held /or renowned le/tist

theoreti$ians1 Blame must be (ortioned in this regard in /air measure1

8/11/2019 Taking a Long Hard Look at Our 

http://slidepdf.com/reader/full/taking-a-long-hard-look-at-our 3/4

3(holding the integrity o/ the 0udi$ial institution

But with all these $onstraints! 0udges stru$k ba$k at the (oliti$al establishment with

/aultlessly reasoned 0udgments e4en during the darkest times1 3(holding o/ the

integrity o/ the 0udi$ial institution remained o/ (aramount $on$ern e4en though

 0udi$ial realists may shrug at the 4ery notion o/ the 0udge as an inde(endent arbiter1

7t was (re$isely /or this reason that this $olumn was unrelentingly $riti$al o/ the &arath

&il4a ourt '*???-)++?.1 As Justi$e 2igneswaran assessed the matter in an

inter4iew gi4en to a weekly news(a(er 0ust a/ter his retirement '"Justi$e on a %a9or’s

dge’! 8harisha Bastians! the &unday Leader! :*C*+C)++,.! "errant (oliti$ians and

(oli$emen who should not ha4e re$ei4ed any (atronage /rom the 0udi$iary were

(er$ei4ed as im(ortant (ersons and original $ourt 0udges 'were. $om(elled to $om(ly

 with orders illegally issued to (rote$t or (am(er su$h errant o//enders1’

These are matters o/ re$orded history as is also the monumental /ailure o/ the Bar and

the legal a$ademi$ $ommunity to s(eak out at that time1

Judi$ial a((ointments on merit

 Det it would be un/orgi4ably nai4e to think that the (roblems arose and would /all

away with one indi4idual1 The su$$eeding de$ade taught that lesson 4ery well1 The

ourt remained mired in (oliti$al $ontro4ersy $ulminating in the im(ea$hment o/

hie/ Justi$e &hirani Bandaranayake e4en as bare-bodied ru//ians dan$ed outside her

o//i$ial residen$e1 And ten years later! we /ind Justi$e 2igneswaran’s (res$ient warning in )++, that "the 0udi$iary must not be /illed at its higher e$helons with

e5e$uti4e-(liant o//i$ers who ha4e had 4ery $lose relationshi(s with the e5e$uti4e and

the legislature’ to be e5$ru$iatingly rele4ant! more so than e4er be/ore1

Last week! President o/ the Bar Asso$iation 3(ul Jayasuriya stressed that 0udi$ial

a((ointments should be made on merit and seniority1 The by(assing o/ ourt o/

 A((eal Justi$e Anil ooneratne 'who had ser4ed /or more than se4en years on the

Ben$h. in the re(orted a((ointment o/ a new President o/ the ourt o/ A((eal was a

(rimary /a$tor in this res(e$t1

Justi$e ooneratne! along with the late Justi$e &ri &kandara0ah! were signatories to the

ourt o/ A((eal de$ision 6uashing the (ro$eedings o/ the Parliamentary &ele$t

ommittee on the )+*: im(ea$hment o/ hie/ Justi$e Bandaranayake1 Justi$e

&riskandara0ah was likewise o4erlooked /or (romotion (rior to his untimely demise1 As

mu$h as honourable (oli$emen $annot sur4i4e within the system! honourable 0udges

/a$e similarly agoni9ing dilemmas1

8/11/2019 Taking a Long Hard Look at Our 

http://slidepdf.com/reader/full/taking-a-long-hard-look-at-our 4/4

orrosi4e (oliti$i9ation o/ systems

 2hether it is the (oli$e or the 0udi$iary in issue! the $orrosi4e (oliti$i9ation o/ national

institutions has now been taken beyond the heights o/ im(ruden$e

 A((eals to President >ahinda %a0a(aksa whose administration $yni$ally engineered

the $om(lete negation o/ the *<th Amendment are likely to be o/ little use1 The task o/

re4ersal thereto in a $onstitutionally workable manner lies in the hands o/ &ri Lankan

(ubli$ o(inion1 Politi$ians o/ whate4er $olour will not do this o/ their own a$$ord!

naturally1

Our /ailure to do so! e4en at this late stage! $an only be o/ dire $onse6uen$e1

Posted by Tha4am