First tentative step towards thundering final judgment?

COURT IN THE ACT: In time not yet out of mind, to go against the executive arm of government spelled all kinds of trouble – impeachment at best, death at worst – for courageous individuals in the judiciary. And the eviction and extinction of such faithful servants of justice is still fresh in the minds of the Bench. Fond hopes that justice will prevail must be fortified by judicial review of the cases concerned as much as civil society’s endorsement of an independent judiciary, one of the last bastions of democracy in our republic of late… – Pic by Shehan Gunasekara 

In a palpable blow felt around the body politic, three courts have delivered a trifecta of punches to the coup’s solar plexus. It is not a full, final or binding ruling. But it is a first step towards something solid, stable, and altogether salutary – or so it seems. And there is enough to go on to give at least half the republic a new hope.

First, the Supreme Court granted interim relief to plaintiffs challenging the suspect prorogation of parliament. It was a direct rap on the executive’s knuckles, privileging inter alia the constitution and cabinet responsibility for parliamentary affairs over one powerful person’s prerogative. Or whims and fancies with no legal or moral basis. That showed those who contend that Sri Lanka is a purely presidential democracy rather than a mixed system the error of their interpretation. And it also showcased how checks and balances work well in a liberal constitutional democracy, where the three arms of government are divided and separated in the best national interest.

Then, a Magistrate’s Court had the temerity to remand the highest-ranking military officer in the land, in a volatile case involving the alleged abduction and murder of youth in a time of war. This, despite the official’s ostensible protection at the hands of the head of state with a mind to play to the nationalist gallery, which once led to a cavalier absconding on the part of the second accused in the case. That, and the full regalia of a strutting chief of defence staff not serving to intimidate a sitting judge speaks volumes for the testicular fortitude of at least one magistracy in the country today. Thus, as some would say, the Fort Magistrate has, well, balls.

And last but not least, the fresh news day before yesterday that a Court of Appeal had interpreted a quo warranto case to determine that an ostensible prime minister had shown no sufficient cause to continue as a premier together with his cabinet. Be it a stay order still, not a conclusive ruling, this seems a salutary first step for a long hamstrung justice system.

A New Hope! 

It is a development that is both organic and organised as such. A twin helix of natural development and non-interventionist determination.

On the one hand, we might credit the reforms agenda of the coalition government that started off well enough after the so-called ‘January Revolution’ of that now distant dawn in 2015. It was an unlikely alliance against the excesses of the ‘evil empire’ it succeeded and replaced. Can it be that even those stalwart democratic-republicans had no idea what their good intentions would generate in terms of an independent judiciary in the relatively short space of a little under four years?

On the other, one would do well to credit the emergence of just and fair judges moved more by the merits of an argument than might or main. It must also redound to the good offices of the Constitutional Council, which left to its own devices post judicious appointments, permitted the natural hierarchy of things to assert itself in courts long dogged by blatant politicking. Can it be that the free and fair ethos that has ensued is a twin-helix hybrid between the courage of the council in disregarding seniority alone to appoint the most suitable judges and chief justice to boot… and the natural resolve of a court with the sterling likes of a Sripavan or Dep, et al.?

The Empire Strikes Back? 

Be that as it may, let us not break out the bubbly! Not champagne for the courage of the court and council. But cheers to the independent spirit of the 19th Amendment vis-à-vis duly constituted commissions. And the free, frank and fragile opinions of their learned lordships. For to celebrate any sort of victory for the democratic imprimatur over the courts may well be premature and precipitate a fresh crisis.

Not because the sterling ethos of the courts are suspect. But because the defendants in the three hallmark cases mentioned above are still at large in terms of realpolitik in a world where one man now holds the sceptre over our realm. And even if a coup based cabinet has had its wings clipped for now, it isn’t over till the interim orders are signed, sealed, and delivered with finality.

Return of the Jedi… 

The judiciary at three levels of its being has asserted its mettle against unconstitutional political ambition and unbridled militarism. But if anyone is thinking ‘strike three, and you’re out’, it’s perhaps a tad premature to celebrate the courage, independence, and fortitude of Sri Lanka’s judges.

For while on the one hand we’re well aware that these are interim orders, on the other, the track record of the defendants with respect to court orders – they have no respect for court orders – must give us pause. And give us shivers, as we wait in the fresh hope, that possibly the empire won’t strike back this time too. I’m not holding my breath; nor should you.

But there is a new hope. Sorry for Sri Lankans as yet unborn if pragmatism, endemic corruption/systematic bribery, or any other threat to the integrity of the judiciary were to dash those hopes against the rock of realpolitik.

(Journalist | Editor-at-large of LMD | Writer #SpeakingTruthToPower)