1. Colombo
I DO NOT REMEMBER who introduced me to Mr. S. Kulasuriya. But our meeting was the door to another world.
There is a small archipelago of judges who have been forced out of judicial service in recent years, all for having committed some version of the same offense: the transgression of not transgressing. Kulasuriya was my introduction to this population, this mostly invisible gulag of men in shabby suits or the casual clothes of the educated but unemployed. After him, I spent a great deal of time exploring this world.
It seemed to take me, in certain ways, to the core of things—to the underside of Sri Lanka, the side where light never shines, the side where large principles and a kind of intricate pettiness exist side by side.
I was given a cellular telephone number, nothing more, and urged to use it: Kulasuriya was a judge, and Sarath had forced him off the bench a couple of years earlier. He would explain all this to me. It would give me insight. Some judges were reluctant to speak, but Kulasuriya would be eager to do so. His story would reveal how the system worked under Sarath. Shanthi had given me one look at things; this would be another.
We agreed to meet at the Taj, a hotel across from Galle Face Green and adjacent to the army headquarters, and when I arrived Kulasuriya was waiting for me on a sofa in the lobby lounge. He was tall and burly and, so far as a man on a sofa can betray such a state, he seemed a little nervous. Perhaps it was because I was a foreigner; perhaps he was unsure, the moment having arrived, about telling his story.
Kulasuriya turned out to be a loquacious talker, recounting the recent events of his career as a judge in a flood of detail. But then he took to asking me, “You won’t use my name, will you?” His anxiety grew over the course of our conversations. I had to assure him on this point numerous times. And here I have changed it.
Like many judges, Kulasuriya was not a greatly sophisticated man. He was not cultured or given to refined tastes, as I had heard many times Sarath was. Nor was he of powerful intellect, as Mark Fernando plainly was. Kulasuriya was simply a product of the system as it had once been. He was trained in a profession, and his training had molded his mind. This had made him insistent on procedure. No detail of procedure was too small for Kulasuriya to insist upon. In the end it was Kulasuriya’s insistence on procedure that led him to clash with Sarath, and the clash had ended his career.
KULASURIYA HAD PRACTICED privately for seven years before joining the judiciary in 1987. Then he sat as a magistrate and a district judge for more than sixteen years, and for almost all of that time he served as an officer in an association of judges. It gave Kulasuriya a modest prominence among colleagues on the bench, a visibility his career might not otherwise have brought him.
Kulasuriya seems neither to have supported nor opposed Sarath when the latter became chief justice. He simply continued in the judicial service, events above his head of not much concern, and continued, with his wife, in the raising of three children. He was plainly not a confrontational man, which made what he did at the time of the first impeachment motion against Sarath, in 2001, all the more surprising.
At the time Sarath had called a meeting of judges that he seems to have intended as an occasion to gather and display support. Kulasuriya had attended as an officer of the judges’ association. He said, “I stood up against the C. J. at that meeting. I said, ‘Do we support him? Why should we support him now?’” Later on, after I had gone over my notes from this first conversation, I asked Kulasuriya to tell me this part of the story again. Then it became clear that his position turned on procedure more than principle.
He said, “I didn’t really support the impeachment motion. I said, ‘Why should we support the C. J.? It’s up to him to defend himself.’ I further said, ‘There was an impeachment motion against a former C. J.’”—this was the one Jayewardene brought against Neville Samarakoon in 1984—“‘but did the judges support him at that time? It was he who got himself defended, through a lawyer.’”
And it was Kulasuriya who thenceforth had to defend himself against the wrath of Sarath and the Judicial Services Commission, the administrative body that Sarath had already placed in the control of loyal allies.
Arbitrary transfers of judges from one jurisdiction to another—politically motivated transfers that have nothing to do with seniority, merit, or capabilities and everything to do with inconvenience and hardship—have long been a pernicious feature of the Sri Lankan judicial service, and Sarath appears to have made especially cruel use of them. They are transfers applied as punishment.
It may seem a mild form of revenge for the transgression of not transgressing, but transfers of this kind are exceedingly effective and should be understood in their context. They are a revealing example of the way law is used to create disorder.
Even the threat of an undesirable transfer is usually enough to influence judicial decisions and the conduct of judges. This reflects one of the (many) unfortunate facts of Sri Lankan life: its egregious over-centralization. Colombo is where things matter; little of importance is considered to occur elsewhere. There are those who live and work in the capital and those who live and work anywhere else on the island. And they are very different, the one from the other. Professionals of all kinds—judges and lawyers, doctors and scholars, accountants and executives—will often commute “outstation” by the week to jobs elsewhere so as to keep their homes and families in the capital. This relationship between Colombo and the rest of the island resembles that between a colonial metropole and its colonized periphery. It is, indeed, a reproduction of this relationship. And for many who are settled in Colombo it makes transfer an especially dreaded prospect.
Kulasuriya was never a senior judge, and (as I surmised) his prominence among colleagues was a rather relative matter. He had had fourteen transfers during his sixteen years of judicial service; the worst of them were the two that followed his speech at the gathering of judges Sarath had organized to marshal support among the wigged and robed.
One took Kulasuriya to Ampara, which lies east of Kandy and roughly seventy-two miles from Colombo. It is well within what has long been Sri Lanka’s war zone. The posting was so dangerous that Kulasuriya kept it from his aging mother, commuting an impractical distance over bad roads to the capital once a week so she would believe him when he told her he was serving in Kandy. When she discovered the truth, Kulasuriya’s mother had a stroke and died within a month.
His next posting proved still more dangerous, but not because of the war. It was in Elpitiya, another remote town, this one south of Kandy, where Kulasuriya was sent to replace a judge many years his junior. By this time he had filed a case against Sarath and the Judicial Services Commission, a fundamental rights case—which means a case that invokes a clause in the constitution. Kulasuriya’s case declared that his abrupt transfers constituted violations of his rights. After he filed it, cars began to follow him in Elpitiya, and there were apparent threats on his life. Eventually the information came to him that Sarath’s most infamous “henchman,” a man named Rohana Kumara, was behind these threats. When he heard of Kumara’s involvement, Kulasuriya hired round-the-clock guards.
“Finally I thought, ‘I shouldn’t be here.’ I had to safeguard myself and my family. I looked around. There was a vacancy for commissioner-general of prisons. I applied but I didn’t get it—they gave it to a judge I had trained, a judge with no qualifications for the job.” (This was a reference to a man named Rumy Marsook, who turned out to be, in the view of some, among the better and more innovative prison commissioners Sri Lanka has had.)
Word eventually came from the prime minister’s office that Kulasuriya would be given another position. He never told me how this came to be, but he would be appointed chairman of another government agency. It was a minor posting and for only three years, without much influence, but it would put Kulasuriya on dry ground, preserve his pension, and keep his family intact.
It lasted a matter of months. In the summer of 2004 the cabinet changed. Kulasuriya was forced out before the year ended, unprotected once again.
IT OCCURRED TO ME as I listened to Kulasuriya tell his story over the course of several long afternoons how ordinary a man he was—ordinary in the way of decent but not a blazer of trails. There was a paradox in this. He was an ordinary man caught up in extraordinary circumstances, but circumstances that were regrettably ordinary in the Sri Lankan context. He was not, as Shanthi would put it, a hero. He had not sought out any question of principle and had not particularly wanted to take a stand on one. But he had come down on the right side of things. He stood for the procedure he had been taught to follow and to rely upon. And at some point the question of procedure had become a question of principle.
When I met Kulasuriya he was struggling. His daughters were then seventeen, twelve, and ten, and the family lived on his wife’s salary—she was a civil servant herself—in a house that she had inherited. “We don’t have to buy a lot from the outside,” Kulasuriya said one day as we were driving. “We have sufficient for day-to-day living.”
Kulasuriya was fifty-two at this time. He had lost his pension. Like Saminda, he had the habit of apologizing for his car—a small, rattling thing of Japanese make. He took on legal consultations, but it was difficult, he said, to get cases. “I can practice, but people don’t come to me. The C. J. and others will not hold the scales evenly when my cases appear.”
That day he had finished a small job. He said, “I did some work for a lawyer whom I knew from my years on the bench. It paid…”
Kulasuriya paused. He seemed either to be calculating a sum or deciding whether to tell me what it was. Then: “Three thousand rupees. What’s that? About thirty dollars, isn’t it? It pays for some of my children’s school van charges. They come to five thousand a month.”
He clung to his family and to the principle he had never set out to prove. He was still, four years later, awaiting a ruling on his fundamental rights case—one of the many who wait.
Once he said, “I simply upheld the independence of the judiciary. I can’t compromise on this point.” Later on, as we had got to know one another, he said, “What I believe is my children can walk down the road, heads straight.” And later still: “I sleep very well at night. True wealth lies in a clear conscience.”
When he said this last, Kulasuriya looked at me squarely. The doubts and the diffidence that I had come to expect of him had gone. He seemed to have become, indeed, a man of conscience. Others had suggested as much when they told me about him. But as he used to tell me, as often as he asked that his name not be used, “It is not easy.”
2. Kandy
KANDY, THE PRE-COLONIAL CAPITAL, is a remarkable little city—remarkable for all that it silently tells you. It sits amid a bowl of mountain peaks, protected and unprepossessing. This was the city whose place atop steep slopes leading up from the sea and the colonized coast defeated Westerners until the first years of the nineteenth century. Yet it is contained, it is in apparent harmony with all that surrounds it, and seems to have lived, when it was the center of Sinhalese culture, with no larger ambition, no grand design, beyond its own modest kingdom.
The crumbling remnants of colonial conquest—hotels, banks, houses—are still evident across much of Kandy. But beneath this layer of decaying accumulation is another made of older signifiers. Kandy’s location, in its bowl of peaks, is far more interesting and tells us much more than any dowdy British-era edifice, however fascinating tourists may find the latter. The core of the city, the genesis of its design, once consisted of two square enclosures. In the larger of them was the king’s palace—which survives today in a very modest iteration—and the Temple of the Tooth, center of Sihalese Buddhism. Adjacent is the small lake a Kandyan king had built many centuries ago. Today what remains of the old city is exceptionally picturesque—a world heritage site, according to the United Nations’ designation. But we should not miss what Kandy actually has to say. It is a quite precise expression of Sinhalese consciousness, which is given less to ambition than to a kind of collective solitude as regards the rest of the world, a desire to be left alone and to leave alone.
This is Sinhalese nationalism, too. There is Buddhism and there is hierarchy and there is the inside and the outside of life, all things consisting of that which is within and that which is without. And side by side with this is the lake, a remnant of the great Sinhalese achievement, a royal version of the old irrigation tanks, collective capability dedicated not to the assertion of power across distance but to the control of the resources given by the natural world and the furthering of peaceable cultivation. It is a wonder how such a past and such a consciousness can be invoked in a society as violent, corrupt, and cruel to its own people as Sri Lanka in the twentieth and twenty-first centuries.
Kandy—the modern, bustling town that makes its living by way of tourists and commerce in a quarter leading up to the temple and the lake—raises this very question itself. It seems to have more than its share of Sri Lanka’s extraordinary-but-ordinary judicial corruption. This is to reckon by way of the city’s population of those judges and lawyers who have encountered Sarath and lost their careers as a result.
I met several, and there were others I failed to find. There was one I had heard about in Colombo who had not only been forced from the bench but, threatened with murder, had been forced into hiding. A justice who was a fugitive from the chief justice’s apparently boundless injustice—this in a nation that still maintained all the accoutrements of a functioning justice system and claimed to live by one: I decided I wanted to meet him.
IN KANDY I STAYED at the Hotel Suisse. It is a Victorian dowager, gleaming white amid green gardens, that sits aside the lake opposite the Temple of the Tooth, and it has generously proportioned lounges and bars.
But Hiran Ekanayake would not meet me there. Word came that he was worried about the hotel next door: Rohana Kumara, Sarath’s notorious “henchman,” was said to be carrying on an affair with the proprietress of the neighboring establishment. Hiran took this to be true, certainly, as did many others. So Hiran considered an appearance at the Suisse to be tempting fate. Later I learned something curious: When I had contacted him through a judge I had met in the capital, Hiran had questioned whether my inquiry might not be a set-up. It is through such odd doubts and fears that one makes one’s way along the archipelago Sarath has created from the careers of men such as Hiran.
After several failed attempts to connect, another man—another judge with another story—came to see me. His name was Dissanayake. He was in his early fifties, like Kulasuriya, and he, too, had sat in magistrate and district courts until Sarath had forced him out. With difficulty, for it was never clear where Hiran was, we finally arranged to meet him at his house.
It was on the outskirts of the city, behind a battered gate and a garden. Hiran lived there with his mother. In the driveway, under a canopy that sheltered the front door, there was an expensive-looking four-wheel-drive vehicle in an advanced state of disassembly. Hiran was restoring it, he would explain later: Cars were his hobby.
Hiran was different from the other judges I had met. He was young, fit, energetic. He kept his hair fashionably short and wore stylish clothes: jeans, a smart shirt open at the neck. Hiran came from a prosperous family: Apart from the house where we sat in the cool of a Kandy afternoon, there were estates in the mountains outside the city. This seemed to account, at least partly, for Hiran’s attitude. It was also different. The story he told was as grim as the others I had heard, but Hiran displayed no anxiety as he told it. Sarath had forced him out, but there was no question of defeat. Hiran seemed to have marshaled all the facts, rather coldly, and confident that someday they would matter.
Hiran had been a magistrate at Thambuthegama, a remote town in the Anuradhapura district in the north-central region of the island, when Sarath was made chief justice in 1999. That same year, Chandrika was running for re-election, and at one point her opponents organized a gathering at Eppawela, a town within Hiran’s jurisdiction.
Hiran said, “It was on a Sunday, if I remember correctly. That weekend I was on leave—here. Early on the Sunday morning, I made the drive to Eppawela—a five-hour trip. When I got there I saw tires burning and police everywhere. A bomb had been thrown into the opposition meeting. The facts were repeated to me, and I directed the police to conduct an investigation and arrest the person responsible.
“The police took no action. Then a special order came from the president, and a team was sent to investigate allegations that the opposition had begun making. After its inquiries the team made an arrest. It was a very big event, this bombing.”
A big event: It had made the newspapers, it had broken into public view. Many such investigations do not.
“After the arrest, it came out that the chief minister of the province had shared a meal with the suspect just prior to the attack—that same day. The minister’s name was Berty Premalal Dissanayake”—Hiran spelled it carefully, as if I were taking testimony—“and the meal he shared with the suspect was at his residence.
“These are things I know from the investigation. But after the disclosure about the chief minister, the investigation stopped—that was the end.”
I HAD NOT HEARD A STORY like Hiran’s before. I had heard stories of petty revenge, extra-marital affairs, the protection of this or that corrupt public figure. I had heard, by this time, Kulasuriya’s story—a story of defiance and punishment. Hiran told me a political story. A bombing at a political rally during an election campaign, casualties, extensive wreckage, a police investigation—this was a political story and also a very public story. It put the mess of the system, including the judiciary, squarely in public view. There was a clear motive leading to the president’s party organization—Chandrika, like her father, was S. L. F. P.—and in the face of such a plainly legible motive the president had had to order a special investigation. And then the investigation was ordered to stop—“Enough!” someone, somewhere had said—precisely because the investigation was leading somewhere. It was as if the leadership had declared, “No, we cannot have the order that would result from a full investigation: arrests of the culpable, trials, sentences. Let us use the system as we have come to use it—to maintain the disorder we require to remains in power.”
A political story, in the middle of which Hiran offered a precisely political explanation of the chief justice.
A number of senior lawyers and civil society groups had advised Chandrika not to appoint Sarath as chief justice after she had made him attorney-general and her plans had become clear. “But the president thought an independent judiciary was a huge obstacle,” Hiran said. “She couldn’t work things out the way she wanted.”
Things: Among them were elections. But what precisely did Hiran mean by “things,” I wondered. There seemed to be more.
“Certain political killings took place during Chandrika’s period. This involved, especially, the politicization of the police, but also people from various quarters in government service. People were going to the Supreme Court with fundamental rights cases, and the court was finding against the government. It was a big problem for Chandrika’s government.
“The help of the police was important to the president and the S. L. F. P. There was election rigging. There was pressure of various kinds put on political opponents. There was a huge misuse of government property and public funds. There was no proper auditing. Politicians used money as they wanted. An independent judiciary was an obstacle to getting all this done. The choice of the present C. J. was ultimately about keeping power. And the C. J. wanted judicial officials who would safeguard the ruling party. That was his job.”
Hiran did not accept the thought that the system had deep problems before 1999. Like many others, he thought Sarath had destroyed a respectable institution more or less singlehandedly.
“The judiciary prior to the appointment of the present C. J.”—also like others, I found Hiran reluctant to use Sarath’s name, as if there were a danger in the very utterance of it—“that system was very satisfactory. Things happened in a very impartial manner. Then, little by little, the C. J. started disposing of judges whom he found it difficult to manipulate the way he wanted. All the fundamental rights cases dissolved into thin air. Nobody knows what happened to them.”
Hiran had become an attorney in 1990 and had later studied at a judicial training institute. He became a judge in 1997, and he seemed to know the facts of recent history cold. To date, he told me, almost forty judges had been removed by “the present C. J.”
“They’ve been replaced by J. O.’s”—judicial officers—“with no proper experience or training. You find women, especially, in this new group because the C. J. can manipulate them.”
This was the first I had heard a number. I had not previously been able to judge the size of Sarath’s archipelago of the dispossessed. When did all of its begin, I wondered.
“Right away, right after the present C. J. was appointed. The first to be knocked off was a judge called M. G., Mervyn Gamini, Wijetunge”—again, Hiran took care to spell the name. “There may have been J. O.’s having problems, but none were trumped up. Wijetunge was the first. And that was in 1999. He had been on the bench for twenty-six years and was on the brink of retirement. He was five days away, I think. That is where the C. J. started his operations.”
Five days away from retirement, a judge is “knocked off”—knocked off the bench, though the ordinary meaning of the term was hard to miss. The Wijetunge case, in its very irrationality, suggested a purposeful intent to instill fear, a strategy to make it known as soon as possible that there would be no immunity in the judiciary—and that nothing would be predictable. No one was safe. A judge of twenty-six years’ standing: To remove him in such fashion was a little like defacing a sign or a public plaque, a calculated sign of disrespect.
In Hiran’s case, he had already tempted fate by the time of the political bombing in Eppawela. The chief minister of North Central Province, Hiran had discovered, was acquiescent, if not complicit, in a range of “irregular and illegal activities,” as Hiran called them. He had received several petitions concerning a bar that was openly selling illicit alcohol—which is a substantial problem in Sri Lanka—and he had directed the police to raid it. There had been repercussions from that, too. “This was at the same time as the bombing. Everything was happening at once.”
After the bombing, the minister sent several requests to Hiran to arrange a meeting. Hiran refused all of them. Then: “So he took his last option, which was to get me out of the district through the present C. J., who had just then been appointed.”
All this happened quickly. Hiran’s transfer orders came through within two weeks of the bombing. Afterward he was able to argue for a three-month extension, but he still was gone by December of 1999—three months after Sarath took over at the Supreme Court.
Hiran was honest about what he did then. He said, “When the transfer came I knew what the reason was. Then I got the extension. I took a lenient attitude toward the bombing matter. It was a question of survival.”
A lenient attitude: He pressed the question no further.
Hiran returned to Colombo, and there he entered the lowest level of the court system. As he described it, it seemed like a kind of descent into hell. At his courthouse there was no record room, and what records had been kept were too badly neglected to be of use. His caseload justified a staff of ten, but apart from the court registrar he had a staff of one, a young mother who left every day at noon. The roof leaked. Postponing trials became a matter of daily routine. There was no home leave. There was no government bungalow—a standard perquisite—and this forced Hiran to commute: an hour and a half in traffic in the mornings, two hours at the end of the day.
“I want to make a certain point with these details,” Hiran said. “The C. J. wanted to remove me for inefficiency. This was his groundwork.”
One day Sarath’s personal assistant, a runner of errands, a figure called an arachchi in Sinhalese, arrived at Hiran’s chambers. He had a piece of paper listing numerous case numbers. They all concerned a woman, an attractive doctor of forty or so. The cases were all related to fraud: The woman doctor was accepting large sums in return for arranging employment abroad and then providing neither the jobs nor refunds of the sums paid.
Hiran told me this story in extensive detail. It was, plainly, six years later, still a moment that called forth intense emotions.
He said, “The C. J.’s arachchi told me, ‘Sir, this doctor is very well-known to the C. J.’ He spoke in Sinhalese and the term was ‘honda hitawath,’ meaning ‘a very faithful friend,’ but with certain implications, a slight suggestion of ‘lover.’ Then the arachchi said, ‘Sir, conclude these matters quickly. Leave the final judgment in his lordship’s hands. You do the needful. He will look after the rest.’ As he left, he took the files for these cases from the middle of my pile and put them on top.”
Hiran’s moment of truth in the judicial nightmare of “the present C. J.” had arrived.
Hiran continued to tell his story in great detail. My notes from our afternoon together are voluminous—full of Hiran’s accounts of conversations, recollections of precise body language, visits and more visits from the arachchi, his own declining mental and emotional state, and so on. But in all of this the notes also are very interesting. Hiran had fallen into a confrontation with Sarath, but it was also a confrontation with himself. As he was younger than the other judges I had met, he had been on the bench only two years when Sarath became chief justice. And he was ambitious.
Who was he, then?
When we had just begun to talk and entered into the matter of the bombing, he interrupted his account and said, “I was a very independent officer. If an arrest is necessary—a minister or anyone else—without any discussion I would’ve directed it.” Suddenly, circumstances had forced him to prove the integrity he claimed. It was Hiran’s turn to test himself in matters of principle.
AGAIN, HIRAN WAS EXCEPTIONALLY open in his account of things. He did not mention principle as he recounted his calculations at his point.
He said, “I was confused. I was deeply shocked. I knew that if I didn’t fall in line with the C. J. I would bear the consequences. But if there was evidence available to me and I discharged the cases, one fine day after the C. J. retires there would be a commission to deal with people like me and I would be penalized.”
Hiran did nothing at first. Then the adachchi returned—“His lordship is not happy,” he announced—and then Sarath telephoned directly. By Hiran’s account it was a harsh, threatening encounter on the telephone, and afterward the young judge fell into a state of considerable mental anguish. A doctor eventually recommended rest, and it was after he submitted the doctor’s recommendation that a letter arrived from the Judicial Services Commission: You are mentally unfit to continue in the judiciary, it said. Accordingly, your service is terminated with immediate effect.
Things escalated after Hiran’s dismissal. He wrote to the president requesting an inquiry, and when a reply failed to come he went to the newspapers. Eventually the case went before the Sri Lanka Human Rights Commission—again, to no avail.
Hiran said, “It was when the media publicity started that I began to be afraid. Two Jeeps—Land Rover Defenders, the kind the army and the police use—came to the gate. My watcher told me. Then I began to get telephone calls—anonymous threats. And for the next several years I kept my whereabouts unclear. I used the family estate at Kotmale, toward Nuwara Eliya. I used a bungalow my grandfather had built for hiding during the war. For the first year I didn’t even sleep in the bungalow at night. I slept outside.”
In 2001 Hiran appealed to the U. N. Human Rights Commission in Geneva. A year later the commission accepted the case, and when I met him in 2006, he was still awaiting the results of an inquiry.
I asked Hiran if he would go back to the bench if he had a chance to do so—if the U. N. ruling opened a door to him again.
He replied, “Financially I’m better off in private practice.” Then he paused and said, “Also, the justice system has reached such a level that it would make me miserable. It is unrevivable at this point.”
Hiran’s practice was near Gampola, a town not far from the family estate. “Gampola is a small station,” Hiran said. “I’m out of the limelight now, but I’m still careful. I hide my vehicle in the churchyard and then go to the courts. In the evenings I can fade away.”
3. Nuwara Eliya
NUWARA ELIYA IS MOST of a morning’s drive southeast through the mountains from Kandy. The road remains in high, cool country and weaves in and out, dipping and rising, through vast tea estates. Most of the work of these estates—the original clearing of land, the planting, tending, and harvesting—was done by Tamils brought from South India as indentured labor in the nineteenth century. The plantation workers are still predominantly Tamil—poor, mostly unorganized, living in minimal conditions on the estates. Once you know the immense suffering that made these places what they are, it is impossible to drink tea again in the same way, or to look in the same way at the rows of tea bushes as they roll over the hilltops like the undulations of ocean swells. They are a beautiful sight, but too much pain and deprivation has been sacrificed for them to be beautiful and nothing more.
In Nuwara Eliya, one of the old hill stations the British built across the empire to remind them of the green, cool villages they had left behind, there was another judge—another judge, another story, another refugee. Prabath de Silva’s story was famous among the other judges. I had heard several versions of it already when I decided to go and listen to him tell it himself.
Prabath seemed even younger than Hiran, though he was by some years Hiran’s senior. And he had none of Hiran’s panache and vigor. Tall and thin, he was almost painfully diminutive. It suggested he had come from a far more modest background. Prabath had become a lawyer in 1982, when he was twenty-two, which made him forty-six when I met him. He did not look even that. Prabath was an earnest innocent—plainly no match for a man of “the present C. J.’s” determined machinations as I had heard of them. In Prabath’s story, the political fell away once again. There were no political motives, no mistresses to protect. This seemed to be a story of a criminal—petty or grand, I could not tell—in need of the corrupted legal system’s protection from the legitimate legal system.
Prabath had been hearing cases routinely in Nuwara Eliya when, in December of 2002, he had word through a friend (before, even, there was any official word) that he was to be transferred. Having school-age children and a year and a half left in his term, he confirmed the rumor and appealed. A month later a member of the Judicial Services Commission arrived in Nuwara Eliya to inspect the records in Prabath’s courthouse. The commissioner stayed at the home of an allegedly corrupt executive, from which he insisted on a formal police escort to the court. At the time, Prabath was hearing three fraud cases against the executive.
The inspection at the courthouse was cursory: The visiting commissioner shuffled quickly through two case files of the six thousand Prabath kept. It was also rather theatrically abusive, the commissioner shouting out his shock over the two cases, both of which happened to be in order and proceeding routinely. A few months later, having been reassigned to a remote posting in the northwest of the island, Prabath resigned. There was no letter explaining the judiciary’s decision and no recourse. The entire case had the thinnest of paper trails.
Prabath said, “I wanted to protest, but I had no way of going to the Supreme Court to file a fundamental rights case against the J. S. C.—I knew it would be futile. J. S. C. members are also Supreme Court justices. The C. J. is chairman of the J. S. C. So he will nominate the bench to hear his cases, and sometimes he will take a case himself.”
As we talked a cool mist drifted across the road and the trees outside Prabath’s window. I wondered: Why had I been urged to go to Nuwara Eliya to hear Prabath’s story? There seemed nothing remarkable in it. It seemed to add nothing to the narrative I was forming. And yet several judges had mentioned it, always in considerable detail—more, even, than I asked of Prabath. I was puzzled.
I raked through all the notes I had touching on Prabath’s case. Finally a word came to me, one I had heard over and over during a long visit to Guatemala some years earlier, after the savage years of civil war had ended. The Guatemalans talked often of impunidad. It means, of course, “impunity” and was used to describe the freedom from all accountability of those known to have victimized many thousands of Guatemalan people.
This was the core of the Prabath case—a case otherwise so mundane as not to be worth recounting. Everyone had mentioned the same detail: The commissioner who came to Nuwara Eliya to perform his perfunctory inspection of Prabath’s case files had stayed at the home of a man Prabath was trying—the man “the present C. J.” appeared to be protecting by transferring Prabath. Then the police escort:
Everyone mentioned this, too—a motorcade from the alleged criminal’s house to the courts.
In the Prabath case some corner seemed to have been turned. Until then, the law had been used to obscure corruption and the crimes of the judiciary itself—to make these crimes illegible. By mid-2003, when Prabath resigned, there seemed no reason any longer even to pretend that the law was being observed and the system kept intact. Public space had been so thoroughly destroyed—had become so “unrevivable,” as Hiran had put it—that this was no longer necessary. And it was to witness this for myself that the other judges urged me to visit Nuwara Eliya.
AS SOON AS HE RESIGNED from the judiciary, Prabath became the principal and director of the John Knox International School, which sat modestly in a residential district along a road just outside the center of Nuwara Eliya. It belonged to the Lanka Reformed Church, an offshoot of the Dutch Reformists and named for the noted sixteenth-century Scottish reformer.
“I was very involved in church activities,” Prabath said as our conversation turned from the past to the present. “I gave the church the concept of the school and then got others interested.”
There were a hundred and thirteen students by this time, and Prabath was plainly proud of what he had built. He said, “I was fed up with the legal profession anyway.”
Before I left, Prabath gave me a book he had written. It was privately printed and concerned the early career of Leonard Woolf, the English writer and publisher and the husband of Virginia Woolf, the noted novelist. Leonard, it seemed, had joined the Ceylon Civil Service in 1904, soon after he graduated from Cambridge, and had served as a judge in a district in the far south called Hambantota from 1908 to 1911.
The book fascinated me. It was carefully done, with a precise narrative of Woolf’s legal activities and his place in the hierarchy of the district. There were accounts of his cases and quotations from his judgments—all properly footnoted. The writing had a sympathetic tone.
It was a labor of love, this book. But a love of what? Of literature, perhaps, or of history, or of the English and the Ceylonese when they lived together. But most of all it seemed to express a love for an idea of order, and of the profession Prabath was no longer able either to love or to practice.
4. Colombo
I DECIDED TO GO INTO the judiciary because I liked the independence of the profession. The judiciary was independent and people had faith in it. There was no question of interference from the government.”
“When was that?”
“I started as a primary court judge in…” There is a pause. “In 1979. I completed twenty-one years before I had to leave. I was in the hill country: Kandy, Matale, Gampola. Then I went to Matara, and then to Kuliyapitiya. Then I came to Colombo.”
“You were a district judge by then?”
“When did I become a D. J. …? The exact year I can’t remember. But it was after the Matara station. Then in Colombo I was promoted to D. J. super-grade—the highest in the D. J. system.”
“You must’ve been pleased.”
“When we joined the judiciary we had senior Supreme Court judges who had excellent experience in the system and in the law. They were able to instruct newcomers and place them on a foundation….”
Another pause.
“I would say sort of… it was… that is, we were guided, given a foundation, guided to be independent. That is the crux of the matter. They were very helpful in this way. We had a very great respect for them because we found their attitude toward dispensing justice….”
A pause.
“It was unquestionable. No one leveled any accusation of bias or partisanship during their careers as superior court judges.”
“All this began for you in Colombo?”
“I was born in the hill country. Mawanella. My primary education was from a Buddhist school, a Theosophical Society school. These schools ordinarily established temples, so we grew up close to the temple and were taught Buddhist philosophy.”
“And Colombo? Law?”
“Later on I joined Thurstan College in Colombo. Everything was free. I got a degree from the University of Colombo in law while I was working. Then I entered the Law College of Sri Lanka and passed out as an advocate.”
“And then when you became a judge? You eventually found problems?”
“Later on I found there was political interference with judges. If a minister or an M. P. doesn’t like a judge in his area, who sticks to the law and independence, there is interference by transferring before the due period lapses in the station. Appointees are entitled to three years. These mid-term transfers were mainly due to politicians’ interference, or someone made a grievance to a minister or to someone in high office.”
“When did this start?”
At this point there is a long pause.
“I believe after Mrs. Bandaranaike came as president, in the 1990s.”
“And before that?”
“Before that we had no fear of interference. It was very prominent after this. Before this it was subtle. They would suggest there were some exigencies and a need here or there, but it would have a legal basis.”
MERVYN WIJETUNGE’S OFFICE was one flight up from Deans Road, a busy commercial street in the Maradana, a hectic, often messy quarter of the capital. He practiced with several other attorneys, offices all in a row along a narrow corridor with benches where clients sat: local clients, it seemed to me, clients with small means and small, ordinary lives in which small things had gone wrong. They were, if a single word can be attached to so disparate a group, apprehensive as they waited their turns.
Wijetunge was older, as I had expected. He had silver hair and a look of wearied experience, though he seemed also to retain a lively manner and a slightly bemused detachment, the detachment I had seen in Vijaya. He was, indeed, only a few years younger than Vijaya, for he was the judge forced to resign in 1999, a few days before he was to retire—the judge Hiran had told me about, the first victim of “the present C. J.” This modest practice, almost certainly, had not been part of Wijetunge’s plans. It had probably replaced whatever portion of his pension he had lost.
He said, “When I was transferred to Colombo I had a number of cases that involved big businessmen and firms and supporters of ministers and M. P.’s. Often the defendant or the accused had a connection with the political hierarchy. So I found it difficult to work because even the police were partial toward the accused in criminal cases, and the prosecutions were not carried out properly. Charges were not looked into properly, and the prosecution wanted some way or other to set free the accused they are interested in.”
Wijetunge stopped talking for a moment. He was looking across his desk at me as I took notes. When my pen caught up with his sentences he began again.
“On the other hand, you had people accused of crimes who should not have been brought before court. They were there unjustly because there was no evidence. But due to their political opponents they were brought in.”
Wijetunge paused again, his eyes following my pen.
“So as a judge…”
Another pause.
“…..I had to balance this very delicately to send the innocent free and those really involved in crime to be prosecuted.”
“What happened?”
“Interdicted,” Wijetunge replied.
This is the Sri Lankan term for barred from employment. Wijetunge had been tossed off the bench.
“Interdicted. I was framed on trumped-up charges and ultimately had my retirement benefit reduced.”
Retirement was due on November 6th, 1999. But the Judicial Services Commission initiated an inquiry, and on October 8th it brought charges against Wijetunge. There was an appeal to the president. But then the inquiry dragged on for three years. All this occurred under Sarath, who had become chief justice a month before the inquiry began.
“Why?”
“I cited four cases to the president. One involved two M. P.’s from Ratnapura. One of them is now a deputy minister. They were caught up in a murder case—the shooting of a close relation of Chandrika. They were in hiding. The police couldn’t arrest them. There were TV and radio announcements, reward of ten lakhs each.”
Ten lakhs was a million rupees, about ten thousand dollars.
“Then both were surrendered to the court where I was presiding.”
“Were ‘surrendered’?”
“Their lawyers brought them. And this was the problem. If someone is in your hands you can do whatever you want. The government could’ve dealt with them extra-legally. Instead they were brought before the law.”
Wijetunge spoke at length about all three of the other cases. One involved a business executive accused of defrauding a state bank, and who had then applied to Wijetunge’s court for protection, so avoiding arrest. The third was called the “Channel 9 case” and involved an alleged payoff of fifty thousand pounds sterling to the governing party for a broadcasting permit.
“This was the last case I heard before I was interdicted.”
“What about the fourth?”
“There was never a trial so I couldn’t take up the case. It was Ishini’s case. Her full name is Ishini Wickremasinghe Perera. She is the daughter of the present opposition leader’s brother—niece of the opposition leader. She was news director of TNL, a TV channel her father owned. TNL reported that an army camp in the north had been surrounded and outnumbered by the L. T. T. E. The government denied it and wanted the news director, the daughter, arrested for inciting communal violence. I did nothing. I found it was purely political maneuvering to get her remanded.”
Wijetunge handed me some documents. They were nothing I had not seen numerous times by then, in one variation or another: a copy of a complaint he had filed with the International Criminal Court. Wijetunge was still awaiting a reply.
I GLANCED AROUND WIJETUNGE’S office whenever our conversation reached a passage that allowed me to rest from taking notes.
Synthetic lace curtains framed a window that gave onto a littered alley and the wall of the next building. There was no air-conditioning, and the fan above us was broken. Wijetunge’s walls were painted an electric blue I had seen often—a dreadful color, I had long-earlier concluded. The cacophony of Deans Road imposed itself.
It was a perfectly ordinary scene: an old wooden desk, files here and there, all soiled and worn at the edges from passing through too many hands. Outside, clients waited with anxious eyes and sometimes a sheaf of papers that would find their way into one or another of the files. And at the center of it all, a lawyer operating at the lower end of the scale, advancing one case, then another and another, each one a step at a time.
Suddenly I recognized a certain charisma in Wijetunge. He struck me, all at once, as the most exceptional of all the judges I had met. And the less he had to say about his hardships, his confusion, or his disappointment with what his life had come to, the more clearly I understood this to be so. Of all the judges, it was Wijetunge who had never had to face a question of principle—meaning, plainly and simply, as simply as the synthetic curtains hung from his office windows, principle had never been a question for him.
When Wijetunge spoke again, I recognized it as the voice of someone who knew in his bones what had truly happened in his lifetime—the fundamental truth of it. He spoke with history, and with no adornment.
He said, “It’s all a tragedy. I say this because a common man like me and people I associate with are not satisfied with the workings of justice. This is what people talk about. They don’t trust it now.”
