I had intended, in what was to be the last article in this series, to look at the question of external security, and how to work towards bipartisan consensus in the conduct of international relations, so that the nation as a whole is strengthened. At present, on the contrary, we seem, while pursuing partisan political agendas, to allow ourselves to become the playthings of other countries.
Instead of that however, in what will be the last article in this series, I will look at what seems an even more vital issue in the context of the events of last week, namely the question of internal party democracy. That question has been raised by others too previously, but the dismissal by the President of two party secretaries off his own bat has highlighted the problem of intra-party decision making.
Those who defend the actions of the President claim that he was under great pressure, both political and emotional, but even they feel that the actions took away from the great reputation for decency that he had established. And in the long run, given the way the results worked out, it has taken away from what would have been his stature in presiding over a national government. It is still not too late to develop a national consensus, but everyone will have to work all the harder for this purpose if we are to avoid confrontational oppositioning.
The problem of intra-party systems or the lack of them it should be noted, also contributes to authoritarianism in the country at large, since absolute control of a party by its leader inhibits internal criticism. That facilitates leaders behaving as they want in the country at large, and also allows them to become the victims of sycophants. These make it their business, to strengthen their own positions, to rouse suspicions with regard to colleagues who, while being basically loyal, might question what seem to them particular aberrations.
I have been a victim of this myself, as were senior members of the SLFP. I believe tale-carrying was a technique employed by ambitious politicians too, but given the need for unity at the present juncture, I will content myself by citing the case of the senior member of the foreign service who badmouthed both Sushma Swaraj and Nimal Siripala de Silva when the former tried to build bridges as leader of a Parliamentary delegation to Sri Lanka in 2012.
In the present context the removal of the party secretaries by the President was complicated by recourse to judicial authority. While I have long argued that the judiciary must be strengthened, I have also indicated the need for clear rules that will prevent judicial abuse of power. Soon after the new government took office in January, I wrote to the Minister of Justice with suggestions as to the type of systems we should adopt to ensure that the judiciary served the people effectively. There was no response at all. I was optimistic when the Minister called me, but it was with regard to a parochial problem, and I realized that he was unable or unwilling to engage in conceptualization to deal with fundamental issues.
In the present instance it seems to me that the District Court has not followed what I believe should be a basic principle of justice which should be spelled out in rules. Enjoining Orders are intended to prevent potential abuses through arbitrary and unlawful acts, not to stop these being challenged. An Enjoining Order should stop actions by individuals that might upset the status quo, and should not be used to affirm changes by administrative action of an existing situation.
And, obviously, when judges do make mistakes, there should be provision for immediate rectification through an appeal to the Supreme Court. Going to Court just before the Court Vacation smacks of sharp practice, and there should have been immediate recourse to the Supreme Court to deal with the questions that had arisen.
I hope then that one of the first actions of the new government will be to work towards developing systems that will ease complexities. As mentioned I had written to the Minister of Justice with a copy of the excellent suggestions made by Nagananda Kodituwakku about reforms that would help to bring justice closer to the people. Interestingly, the first of his ideas was to abolish the present Court Vacation system. As he put it, that ‘is a legacy from the British Colonial Rule. The UK has abolished this system long time ago, taking into consideration the valuable time being lost as a result of the said vacation system. In Sri Lanka however, this practice continues unabated, causing tremendous delays in dispense of justice.’
Another suggestion he made I feel strongly about now, having spent much time in Court recently – and not least because the first case I got involved in, regarding Trinity College, was resolved in the end through decisions taken elsewhere with regard to basic justice and fair play, when the courts were taking ages with claims and counter claims being filed that sometimes intended simply to cause obfuscation and delay. To help avoid these, Kodituwakku had suggested that
‘Specific call-in time be allocated for all cases, and productive use of court time – In Sri Lanka litigants, government officials, lawyers waste away their valuable time in Courthouses until their cases are being called. In the established democracies like UK from where we have inherited our judicial system the parties to a case are notified with a specific time to attend Court for their respective cases. Sri Lanka ought to adopt a similar system to save precious time and energy of the people attending court. In Sri Lanka the irreparable loss of man-hours is immeasurable due to the absence of such a system.’
Finally, though this was not mentioned to him, I go back to an important element in the National Human Rights Action Plan, which was to extend the use of mediation and arbitration, and aim where possible to resolve problems through discussion and consensus rather than the adversarial system we now promote. Excessive litigation only benefits the profession, not the people, and systems that will expedite justice and promote efficient disposal of issues is something I hope the new government will expedite.