Wearing Sackcloth And Ashes As We

Apologize
| by Kishali Pinto-Jayawardena
Courtesy: he Sunday i!es" Colo!bo
# $ctober %&" '(%)" Colo!bo" Sri *anka +uardian, Pi-uantly enough" this see!s to be
the week o. apologies and con.essions .or Sri *anka/
0irst" we witnessed the nationalist Jathika 1ela 2ru!aya parlia!entarian 3athana
hero4s con.ession in his capacity as con5ener o. the Pi5ithuru 1etak #0or a 6etter
o!orrow, !o5e!ent" that it was wrong to ha5e supported the %7th A!end!ent to
the Constitution/
his was .ollowed by e8-Chie. Justice Sarath Sil5a apologizing .or 9udicial decision-
!aking on his part in '((:/ his so!ewhat cryptically worded apology at a !eeting o.
a political party was later e8plained to the 6ritish 6roadcasting Ser5ice4s Sandeshaya
progra!!e as speci.ically applicable in regard to the 1elping 1a!bantota case where
he e8culpated then Pri!e ;inister ;ahinda 3a9apaksa o. !assi5e corruption alleged
in regard to the receipt o. tsuna!i .unds/
;istakes that changed Sri *anka4s legal landscape
Perhaps one should not ca5il at these apologies in a land where public apologies are
woe.ully scarce/ A.ter all" these con.essions are not akin to those which ha5e been
dragged out o. tortured detainees" !ore o.ten than not o. !inority ethnicity" under the
!uch !aligned pro5isions o. the Pre5ention o. erroris! Act #PA" %&<&,/
=or are they si!ilar to the blubberings o. a terrorized public o..icer tied to a tree and
beaten by a ;inister but who .a!ously con.essed that he was at .ault rather than
castigate the ;inister despite the .act that the ;inister concerned belonged !ore in
the wilds o. ;ahiyangana rather than in the Cabinet/
As distinguished .ro! such plebian happenings" what we ha5e here are the apologies o.
a pro!inent !onk o. a constituent partner o. the ruling alliance as well as by an e8-
Chie. Justice which we !ay presu!e" ha5e been .reely and 5oluntarily !ade/ Sarcas!
aside" i. one hearkens to !agnani!ity" it !ay su..ice !erely to add an acid rider that
these are not the only actions which !ust be apologized .or by these two worthies/
>et the need .or cleansing o. Sri *anka4s e!inently hypocritical public culture
de!ands a little bit !ore than a casual chance re!ark/ ?ndeed" the i!agination !ust
surely boggle at the ease i. not the apparent spuriousness with which apologies ha5e
been issued .or such aw.ully gargantuan !istakes which ha5e irre5ersibly changed the
course o. Sri *anka4s political and legal landscape/
;ore penitence and contrition needed
he %7th A!end!ent was not a !ere passing constitutional .ancy #.or e8a!ple, to
change the colour o. the dress that parlia!entarians wear/ 3ather" it led to the radical
reshaping o. Sri *anka4s constitutional syste!s" throwing the country back decades in
progressi5e ti!e/ ?t e..ecti5ely reduced the %<th A!end!ent" possibly the !ost well
intentioned constitutional a!end!ent in post-independence history" to cowed silence/
?t took away the Constitutional Council and replaced it with a paltry Parlia!entary
Council which could not say boo to the pro5erbial goose -uite apart .ro! disagreeing
with the @8ecuti5e President/
And worse o. all" it enabled an authoritarian i. not !onarchic Presidency to install
itsel. .or li.e/ Precisely what did its erstwhile supporters think it would do other than
bring about this !ost predictable constitutional instabilityA
Certainly those who agreed to the %7th A!end!ent should not be allowed to rest
content with 9ust an apology/ ?nstead" as has been the practice o. old in religious
orders" such penitents should wear sackcloth and ashes in public/ his in9unction
applies to oneti!e go5ern!ent stalwarts who wrote copious rea!s about the un-
workability o. the %<th A!end!ent/ =ow" ha5ing .allen out o. .a5our" they occupy
the!sel5es in casting bitter B and wholly ignored - ani!ad5ersions on the .olly o. the
3a9apaksa +o5ern!ent in !aking Sri *anka4s .oreign ser5ice the butt o. all 9okes/
Where does one go to when the Court is C!istaken4A
And then we co!e to the 1elping 1a!bantota case where e8-Chie. Justice Sil5a has
e8pressed contrition .or clearing then Pri!e ;inister ;ahinda 3a9apaksa o.
allegations o. !isappropriation and enabling hi! to contest the Presidential @lections/
As has been reported" this is the .irst ti!e that a .or!er Sri *ankan Chie. Justice has
aplogised .or a 9udicial decision/ Perhaps it !ay be added that this is also the .irst ti!e
that a one-ti!e Chie. Justice has thought it .it to adorn a political stage/ 6ut we are
past that stage o. incredulity certainly where this particular e8-Chie. Justice is
concerned/
A!usingly enough" e8-Chie. Justice Sil5a goes so .ar as to state that he did not
entertain a Cpresu!ption4 as to the corrupt tendencies o. the #then, Pri!e ;inister but
that he has had occasion to re5ise this opinion a.ter seeing ra!pant go5ern!ent
corruption now/ And one can only attribute a worrying lapse in !e!ory to his .urther
clai! to the 66C that" apart .ro! the 1elping 1a!bantota decision" he had .aced no
criticis! with regard to other 5erdicts he had deli5ered/ $n the contrary" criticis!s o.
9udg!ents deli5ered during his tenure were unprecedented in Sri *ankan 9udicial
history/ As this e8-Chie. Justice who has beco!e a tad touchy to public criticis! a.ter
entering the political cu! public sphere !ust surely acknowledge" two i!peach!ent
!otions were presented in Parlia!ent against hi! precisely on that basis" citing
allegations o. 9udicial bias and abuse/
?ronic debates surrounding the %7th A!end!ent
;oreo5er this apology raises a larger -uestion as to what a hapless Sri *ankan citizen
can do when !istakes o. such a nature are !ade by the ape8 court/ his has beco!e a
particularly i!portant -uestion .or us as the 9udiciary continues to be plagued by
political contro5ersy which has only aggra5ated in recent decades/
At one point" Sri *ankans had the option o. at least ha5ing 9urists o. the 2nited
=ations 1u!an 3ights Co!!ittee e8a!ine decisions o. the Supre!e Court to see i.
they secure peoples4 rights in ter!s o. Sri *anka4s own international obligations/ his
was in con.or!ity to earlier enlightened precedent on the part o. highly respected Sri
*ankan 9udges which took international 9uristic opinion into consideration i. this
enhanced the do!estic rights o. citizens/
1owe5er" the '((D ruling in the Singarasa Case presided o5er again by e8-Chie.
Justice Sarath Sil5a that the Co!!ittee process was unconstitutional on unsound
9udicial reasoning that the Co!!ittee e8ercised 9udicial power within Sri *anka has
put paid to this option/ Perhaps we !ay hear the e8-Chie. Justice apologizing .or this
decision as well at so!e point/ Sri *anka began to co!e under the international legal
spotlight .or its do!estic non-co!pliance e8actly .ro! this point onwards/
Para!ount to address the degeneration o. 9ustice
All in all" there is an undoubtedly ironic .la5or to the current contro5ersy surrounding
the legal propriety o. President ;ahinda 3a9apaksa seeking a third ter! gi5en that the
initiator o. this contro5ersy now apologises .or a costly !istake which he !ade al!ost
a decade and a hal. ago in bringing a Presidency tainted by corruption into o..ice/
6ut as we sole!nly discuss the lack o. constitutional 5iability in argu!ents urging the
retrospecti5e applicability o. the %7th A!end!ent" the o5erall point is greater than
this/ As any legal practitioner worth his or her salt well knows" points o. law and
opinions thereo. are in.initely 5aried in their scope and applicability/ ?ndeed" e-ually
skil.ul argu!ents !ay be !ade using the law to bene.it two co!pletely opposing sides/
?n si!ilar 5ein" Constitutions !ay co!e and go but i. there is no public belie. in the
constitutional process as well as in the independence and integrity o. 9udges who
ulti!ately decide the interpretation o. the Constitution" then there is little point in the
e8ercise/
=o better e8a!ple illustrates this reality than the .act that two opinions o. the
appellate courts declaring that the i!peach!ent o. Sri *anka4s )Erd Chie. Justice was
unconstitutional were re5ersed by a 6ench o. the Supre!e Court on dia!etrically
opposite legal reasoning a year later/
So as the sound and .ury o. legal debate echo around us" one !ay be .orgi5en .or being
a tad cynical thereto/ 0or close to a decade and a hal." this country has seen the rapid
and ruinous degeneration o. the law" the 9udicial institution and the 5ery 5alue o. the
Constitution itsel./ hose responsible in the 9udicial .raternity .or this decline since
%&&& are !any/ A solitary apology .or a solitary decision by a solitary e8-Chie. Justice
scarce !eets this pro.ound de.icit o. credibility/ As .ar as the general citizenry is
concerned" co!ple8 points o. constitutional law can only be secondary to the public
acknowledge!ent o. the e8tre!e politicization o. Sri *anka4s 9udicial and legal syste!s
.ollowed by .ull and .rank discussion as to the !anner in which the integrity o. the
syste!s !ay be restored/
?n the spirit o. things there.ore" #and one is being only partly satirical in saying this," a
collecti5e apology !ay be issued by 9udges and lawyers who not only ac-uiesced in the
obscene sub5ersion o. the law but acti5ely conni5ed in particular political cli!ates
.a5ourable to the! when politicized 9udg!ents were deli5ered/
?t is particularly preposterous that so!e o. these 5ery indi5iduals are .ore!ost a!ong
those ad5ocating good go5ernance today against the ra5ages o. the 3a9apaksa
+o5ern!ent/ $thers rushed to get Presidential appoint!ents to unlaw.ully constituted
co!!issions !onitoring hu!an rights" the police and the public ser5ice e5en as the
%<th A!end!ent was being ruthlessly cast aside/
Pre5enting anarchy in our !idst
We !ay there.ore look .orward to that great day where !ore and !ore apologies are
deli5ered .or actions that ha5e ruined this country/ Again only hal. satirically" we !ay
also look .orward to a collecti5e cleansing in sack cloth and ashes appropriately
perhaps on +alle 0ace +reen as we la!ent what we ha5e reduced oursel5es to and the
tor!ent that we ha5e sub9ected the !a9ority and our !inorities to/
Such a holistic healing !ay acco!plish .ar !ore than all the dra.t Constitutions which
we see .loating around or indeed" the sole!n ad9udication o. points o. constitutional
law that we are so adept at/ *et us ha5e a little ho!espun honesty e5en at this stage/
Perhaps then" ordinary Sri *ankans who re!ain caught in the 5icious pincers o. the
utter collapse o. our legal" social and econo!ic syste!s !ay re.rain .ro! stoning our
courts" our business places and our institutions when anarchy erupts/ $r at least we
!ay hope this to be the case/
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