SRI LANKA: People’s Resilience and Judicial Independence

By Basil Fernando

The people of Sri Lanka, like those in several other countries, are learning that their past could cost them their lives and the lives of their loved ones and those of many others. Covid-19 seems to be mocking them. It seems to ask “Can’t you find someone among yourself who is capable of stopping me.“

The answer is that it is time to ignore all those who claim to have taken the responsibility to protect the people. Instead the people themselves should take whatever measures they can to protect themselves.

A certain degree of resilience is emerging among the people. They have lost confidence in the State and the Government. However, passive withdrawal is no solution to the threat of death that is now at their doorstep. They have to do something and they are looking for ways to do it themselves.

Not merely being abandoned by the Government but to be actually opposed by it at perhaps the most crucial moment the country has ever faced is an unusual experience. The economy has to be saved so if some of you have to die for that there is nothing that the Government can do is the message that is loudly proclaimed in many different ways.

The Government, if one is to go by their claims, is a victim of circumstances created by themselves and their predecessors. They have tried to rule the country while undermining all the basic structures of the State. The consequence is that the governing of the country has now become an impossible task.

In such a situation, it was only natural that the people would rise in protest. One of the most peaceful sections of the society, the teachers, have come out in protest in massive numbers during the last few weeks. Although the Government tried to blame union leaders, the attempt to punish these leaders led to even bigger protests. Close observers say it was a movement from the ground level that the unions were forced to reckon with. Such movements, in political science, are called spontaneous movements.

The Government’s response was to arrest, abduct and try to intimidate the teachers and those who support them in other ways. As this could not be done purely by adverse propaganda against the spontaneous movement, the Government resorted to what it has always been good at, which is to resort to various forms of repression.

Some perversely imaginative means were used as tools of repression. For example, when the teachers protesting in Nugegoda and Dematagoda were arrested by the police for no reason at all, they were not taken to the relevant police stations as the law required the police to do. They were sent to the Harbour Police. The Opposition Leader and another Parliamentarian were prevented from seeing the teachers at the Harbour Police under the pretext that prior permission was needed from the harbour authorities and the Navy, without which the police could allow anybody to visit people under arrest. It was designed to prevent even lawyers, family members and other concerned people from visiting the teachers. A further aspect of the arrests was revealed by President’s Counsel and MP M.A. Sumanthiran when he said in Parliament that these arresting officers came in white vans. He said it was an attempt to remind people of a very dark period in the recent history when the abductions and disappearances took place using white vans; a white van was symbolic of terrifying forms of repression.

There is one institution that the Government has yet failed and is likely to fail further to have full control of – the Judiciary. The judges have upheld the right to peaceful assembly and have ordered bail, even while a representative from the Department of the Attorney General’s office was objecting to it, for the people wrongfully arrested.

When President J.R. Jayewardene initiated the process of trying to trample on State structures, he realised that the major obstacle was the tradition of the independence of the Judiciary, established in Sri Lanka for over 150 years. The tale of the initial reaction to President Jayewardene by his friend, Chief Justice Neville Samarakoon, is part of this narrative. There are several ways in which the Judiciary was exposed to many forms of intimidation and there are criticisms about the times when the Judiciary succumbed to some of these pressures. Sometimes, the Governments have been lucky when there were such judges as Sarath Nanda Silva, the former Chief Justice, who on his own cooperated with the Executive to undermine judicial independence. But later resistance by the Judiciary was manifest in many instances such as when former Chief Justice Dr. Shirani Bandaranayake resisted the attempts to force her to resign.

In recent times, the Judiciary has intervened effectively when the former Chief of the Criminal Investigations Department, Shani Abeysekara, was arrested and kept in custody for a long period of time. The Court of Appeal held that the arrest was based on fabricated charges and was illegal. In several fundamental rights cases, the Court has come forward strongly against extrajudicial killings in police stations, torture and other forms of suppression of freedoms. Thus, as the people themselves are now looking to demonstrate their power of resilience, it is to be hoped that the people will also resort to their judicial institutions in order to safeguard their lives and freedoms. Every act of illegality needs to be challenged. That is the only way to revive the basic structure of the State that has been severely attacked by the arbitrary forms of Government imposed on the people.