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People’s resilience and judicial independence

22 Aug 2021

Image Caption - The only discernible answer to the teachers' protests that took place was the arrest of the teachers, while discussions have thus far failed to resolve their issues BY Basil Fernando The people of Sri Lanka, like those in several other countries, are learning that their own 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 that is emerging, it appears, 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 from among the people themselves. For a long time, people had lost much of their confidence in the State and the Government. However, that passive withdrawal is no solution to the threat of death that is now at their doorsteps. 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 the Government at perhaps the most crucial moment the country has ever faced, is an unusual experience for any person. The economy has to be saved, therefore, if some of you have to die for that, there is nothing that the Government can do, is the message which is loudly proclaimed by the Government in many different ways.  The Government, if one is to go by their claims, is a victim of the very circumstances that have been created by themselves and their predecessors. What they have done to themselves, to put it shortly, is that 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 almost impossible task. In the midst of a situation like this, it was only natural that the people would rise in protest. One of the most peaceful sections of the society, the teachers of Sri Lanka, rose in protest in massive numbers during the last few weeks. Although the Government tried to blame it on union leaders, the attempt to punish such leaders led to even bigger protests. Close observers say that what arose among the teachers 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 attempt at a response was to arrest, detain, 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 rather perversely imaginative means were used as tools of such repression. For example, when the teachers protesting in various areas like Nugegoda or Dematagoda and the like were arrested by the Police for no reason at all, those teachers were not taken to the relevant police stations as the law required the Police to do. They were all sent to the Harbour Police. Subsequently, a spokesperson for the Government tried to defend this action. Then, the Opposition Leader and another parliamentarian were prevented from visiting the Harbour Police. The Government Spokesperson said that for that you need to go to the Harbour Police, but they were prevented under the pretext that you need prior permission from the Harbour authorities, and the Navy, and without that, the Police cannot allow anybody to visit the persons under arrest. Thus, it was designed in a way to prevent even the lawyers, the family members, and also other concerned persons from visiting the teachers. A further aspect of these arrests was revealed by MP President’s Counsel (PC) M.A. Sumanthiran, when he said in Parliament that these arresting officers came in white vans. He said that this was an attempt to remind of a very dark period in recent history when the abductions and disappearances took place after people were taken in white vans. Then, 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. That is 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, to the people who are thus wrongfully arrested.  This brings us to perhaps one of the most crucial aspects for understanding a problem that several governments have faced in the attempt to completely suppress the independence of state institutions for the purpose of maintaining an arbitrary form of governance. Ever since former President J.R. Jayewardene initiated this process of trying to trample on the state structures, he realised that the major obstacle that it faced is the tradition of the independence of the Judiciary that has been established in Sri Lanka for over 150 years. The tale of the initial reaction to Jayewardene by his own friend, the then Chief Justice (CJ), Queen’s Counsel Neville Dunbar Mirahawatte Samarakoon, is part of this narrative. There are many ways by which the Judiciary was exposed to many forms of intimidation and there are criticisms about the times when the Judiciary had succumbed to some of these pressures. However, no government has yet succeeded in completely erasing this tradition in the manner that they had suppressed many other traditions, which existed a few decades ago. Sometimes, the governments have been lucky when there were such judges as former CJ Sarath Nanda Silva PC, who, on his own, co-operated with the Executive, to undermine judicial independence. But later, resistance by the Judiciary was manifest in many instances like when CJ Dr. Shirani Anshumala Bandaranayake resisted the attempts to force her to resign.  In recent times, the Judiciary has intervened effectively when the former Chief of the Criminal Investigation Department, Senior Superintendent of Police Shani Abeysekara, was arrested and kept in custody over a long period of time. The Court of Appeal then held that the arrest was based on fabricated charges and was illegal. In several fundamental rights cases, the court has come forward very strongly against extrajudicial killings in police stations, torture, and other forms of suppressions 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 Sri Lankan State, which has been severely attacked by the arbitrary forms of government that have been imposed on the people.  (The writer is the Asian Human Rights Commission’s Policy and Programmes Director)


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