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Nattami who fought against police brutality
Basil Fernando | 05:55 | 0 comments | Filed under Labels: feature, Opinions
Ugly Things and Beautiful People—Part 1
by Basil Fernando
He was an old man, surely over the age of 70. He wore a sarong and an old shirt. By looking at him one could tell that he was obviously a very strong person. He was tall and dark in complexion. One day he went to talk to two lawyers; both were much younger than he and physically lesser in stature and he had no particular reason to trust either of them. However, he had come in search of help and knew that he needed to talk to them. He had already tried with a few others and failed but could not afford to give up.
He repeated his story to two lawyers. It was about his 17-year-old grandson who had been arrested by the police for no apparent reason. Having learned of the arrest he went to the police station and found the boy lying unconscious on the floor of a holding cell. Thinking that the boy was dead he cried out in anguish; a cry that came from the depths of his soul. He then shouted out at the top of his voice, "You have killed my grandson".
This story about torture is now well known. It has been recorded in the High Court, the Court of Appeal, the Supreme Court and also the United Nations Human Rights Committee. It is one of the most well known incidents of police brutality to have been recorded in Sri Lanka and brought to public notice. It was the efforts of this old man that brought this story to the notice of the public. However, at the time the old man was speaking to the lawyers he did not know what to expect.
After narrating his story which the two lawyers recorded meticulously he said the following words: "Sir, these things happen to us because we are poor". He said these words softly. He was moderate in his speech and seemed to be careful not to say anything other than what he really knew of. He was not given to exaggeration and seemed to fear saying anything that might be untrue. But in the old man's face, in his eyes and in his voice, there was defiance. There was also anger and indignation. It was this anger; indignation and his demeanor that made this man such a beautiful character. He had in his soul the fire of love for his grandson .He was angry about the injustice that had been done. But in this instance he felt totally powerless.
For most of his life the old man had been a nattami; a nattami is a person who carries heavy loads on his back at the harbor from the ships to the Lorries. Their livelihoods depended on their physical strength. Their work went on, day in and day out for many years. Such was the life of Elaris Fernando.
" He was a man who spoke softly. But he was capable of showing his indignation and outrage. That was the beauty of this simple man. Justice failed him. The case of his grandson is still before court. These thing never end when the contest is between the powerless and the powerful. But the oldman knew he was not the loser. He knew that if he had not stood up he would have been the loser."
_____________________________
Once Elaris retired from his job he devoted his life to another skill that he developed from the early years of his life. That was the felling of trees. That again was a job that required a great deal of physical strength and also the capacity for balance and climbing. He had to climb a high tree and arrange its felling in such as manner as would ensure that it caused no damage to anything around it. Elaris was a master of his craft and that is why he never went a day without work.
Elaris was a quiet man. He had no property of his own on which to build a house. Many years ago a person in the area who knew him gave him a small piece of land so that he could build a house for himself in return for looking after the property of the owner. For years Elaris did his job faithfully and earned the respect of his neighbours.
The latter years of Elaris' life were barely noticed by anybody. He lived with his wife and for many years he also looked after his grandson after his daughter's husband left her. He raised the young boy and tried to send him to school. After he reached the fifth grade the boy had no desire to continue schooling. The boy accompanied his grandfather in his work and became as strong as the old man. He learned to climb high trees and worked efficiently.
Elaris was conservative in his political views. He did not talk politics with anybody but for a long time was a faithful voter for one particular party. He never sought favours from any of the leaders of the party although many of them were known to him. However, all of them knew that the old man was faithful in his voting and that they could count on his vote.
When Elaris faced this problem of the torture of his grandson he did approach some of these politicians for help. From the police station, after seeing the boy lying on the floor of the holding cell, he walked to the house of one of them. That particular politician was not at home so he walked some distance further to the house of another politician who was a Member of Parliament. It was this politician that telephoned the police station and made inquiries about what had happened to Elaris' grandson. The police informed him that the boy had been taken to a nearby hospital. Other than asking for this favour Elaris sought no other assistance from anyone else.
Elaris then went to the hospital and again found his grandson in an unconscious state lying on a hospital stretcher. There was a policeman standing nearby and having seen Elaris the policeman shrewdly enquired as to whether he was the grandfather and whether they could hand over the grandson to him but Elaris was quick in his response; he said, "You have killed my son, now you can bury him". (Elaris' believed his grandson to be near death if not already dead. In fact, he was in a coma and not expected to live. He remained in a coma for two weeks). Elaris left the hospital and went to tell what he had seen to his daughter and others.
The matter was taken up by the lawyers and they filed a case in court. When the case received wide publicity a new chapter opened.
Now many persons approached Elaris seeking his favour on behalf of the Inspector of Police of the station where the torture had taken place. These persons included people from the political party he had supported all his life. They pleaded with Elaris to say that there had been a mistake and that he should try to settle this matter with the policeman. They also said that if he did not do so it could be dangerous for him, his grandson and his family. They received a reply that they would never have expected from this humble man from the village. He told them, "I have voted for your party all my life, and perhaps if there is another election it is quite likely that I will vote for you again, but about this, don't come to talk to me. This is about my grandson and this is about a great injustice. On this I will not compromise. You can try to have my neck cut but even then you will not see me changing my mind".
They were all surprised by the adamant stubbornness of this old man. Many tried these tricks but nobody succeeded. The police inspector in this case was Narin Attanayake. He was shrewd, successful and in charge of a police station. He also had the right connections with the politicians in the area and knew how to get things done.
This particular incident caused him a great deal of embarrassment. He was extremely angry with the sergeant who messed things up for him. Yet he never showed his anger or unhappiness. Now, faced by the adverse publicity brought about as a result of this case and the questions being asked in court it was his task to show his people that he was the master of the situation and that he was afraid of no one. He had to show that he could handle the matter smoothly.
He tried to send messengers to Elaris and was quite sure that an old man, an old villager like him would easily succumb at the end. He was surprised when these things did not happen but knew not to let his fears show and behaved confidently all the time. At the Magistrate's Court the inspector behaved like a strong man. He did not care much about any of the lawyers in the court. He knew that many of them came to him for favours and knew how to manipulate the situation to his benefit. He had the least respect for the magistrate. He knew him to be an intelligent man who was also very rich. But he also knew that the magistrate was an ambitious man who had all kinds of secrete deals with the local politicians. He knew that the magistrate visited the local MP's house with the view to get some kind of higher post in the government. He was trying to get the help of this politician but in return he had to do favours for the politician and resented doing this.
The policeman knew all this and he thought he would manipulate the situation to his advantage. At the court he brought a huge knife that he has obtained from somewhere, presented it before the court and said that his officers had beaten this young man up because he tried to stab them with this knife. That was the reason for the assault on the young man and the reasons as to how he came about his injuries.
At that time the inspector did not know that this case would last for many years and would receive national attention. He was unaware that it was going to be problem for a long time and would affect his career and a situation that he could not escape from either mentally or physically. But with the stubborn old man, supported by two lawyers and publicity that was to arise in this case, the police inspector was facing something unusual, something that he not forget for the rest of his life.
Elaris had to attend many courts to give evidence. On many days the case was postponed for no reason at all. It was a tedious job but the old man faithfully visited the courts whenever he was called upon to do so.
Finally the day came when he got into the witness box before the High Court of Negombo. Elaris had never participated in any public event and this was the first time he was to give evidence in a court. Highly paid lawyers of the defense were waiting to catch out this uneducated villager by all kinds of tricks. But Elaris stood in the witness box and gave his evidence firmly. He was very careful not to say anything except what he really knew to be true. He would not allow himself to be snared by tricks that the lawyers tried on him. He stuck to his story clearly and very faithfully relying only on his memory.
It was a beautiful day in court and even the High Court judge could not help but be impressed by an old man who was just narrating a story about a tragedy that happened to a 17-year-old boy, his grandson, as faithfully as he could. Elaris proved to be a witness par excellence. Eventually Elaris had to go through ten years pursuing this case, often having to help his grandson who escaped from the village and had to go to other places to live. This also meant that in his old age the old man lost the closest friend he had, his grandson who was not only a loving son but also a faithful worker who knew his job very well. But Elaris knew that something bigger was happening. He knew that the forces he was fighting against were very powerful and he feared for his grandson's life and he helped in every possible way so that he could live far away and rebuild his life on his own. Meanwhile he managed things to the best of his ability at home.
Finally age caught up with Elaris; he suffered a stroke and was very ill for two years. Even then he was clear in his memory and in his mind. To the last he remained adamant, strong and never regretted the fact that he had taken a bold stand against the powerful in order to defend what he thought was his rights and the rights of his grandson. He had boldly put up a fight against injustice.
He was a man who spoke softly. But he was capable of showing his indignation and outrage. That was the beauty of this simple man. Justice failed him. The case of his grandson is still before court. These thing never end when the contest is between the powerless and the powerful. But the oldman knew he was not the loser. He knew that if he had not stood up he would have been the loser.
by Basil Fernando
He was an old man, surely over the age of 70. He wore a sarong and an old shirt. By looking at him one could tell that he was obviously a very strong person. He was tall and dark in complexion. One day he went to talk to two lawyers; both were much younger than he and physically lesser in stature and he had no particular reason to trust either of them. However, he had come in search of help and knew that he needed to talk to them. He had already tried with a few others and failed but could not afford to give up.
He repeated his story to two lawyers. It was about his 17-year-old grandson who had been arrested by the police for no apparent reason. Having learned of the arrest he went to the police station and found the boy lying unconscious on the floor of a holding cell. Thinking that the boy was dead he cried out in anguish; a cry that came from the depths of his soul. He then shouted out at the top of his voice, "You have killed my grandson".
This story about torture is now well known. It has been recorded in the High Court, the Court of Appeal, the Supreme Court and also the United Nations Human Rights Committee. It is one of the most well known incidents of police brutality to have been recorded in Sri Lanka and brought to public notice. It was the efforts of this old man that brought this story to the notice of the public. However, at the time the old man was speaking to the lawyers he did not know what to expect.
After narrating his story which the two lawyers recorded meticulously he said the following words: "Sir, these things happen to us because we are poor". He said these words softly. He was moderate in his speech and seemed to be careful not to say anything other than what he really knew of. He was not given to exaggeration and seemed to fear saying anything that might be untrue. But in the old man's face, in his eyes and in his voice, there was defiance. There was also anger and indignation. It was this anger; indignation and his demeanor that made this man such a beautiful character. He had in his soul the fire of love for his grandson .He was angry about the injustice that had been done. But in this instance he felt totally powerless.
For most of his life the old man had been a nattami; a nattami is a person who carries heavy loads on his back at the harbor from the ships to the Lorries. Their livelihoods depended on their physical strength. Their work went on, day in and day out for many years. Such was the life of Elaris Fernando.
" He was a man who spoke softly. But he was capable of showing his indignation and outrage. That was the beauty of this simple man. Justice failed him. The case of his grandson is still before court. These thing never end when the contest is between the powerless and the powerful. But the oldman knew he was not the loser. He knew that if he had not stood up he would have been the loser."_____________________________
Once Elaris retired from his job he devoted his life to another skill that he developed from the early years of his life. That was the felling of trees. That again was a job that required a great deal of physical strength and also the capacity for balance and climbing. He had to climb a high tree and arrange its felling in such as manner as would ensure that it caused no damage to anything around it. Elaris was a master of his craft and that is why he never went a day without work.
Elaris was a quiet man. He had no property of his own on which to build a house. Many years ago a person in the area who knew him gave him a small piece of land so that he could build a house for himself in return for looking after the property of the owner. For years Elaris did his job faithfully and earned the respect of his neighbours.
The latter years of Elaris' life were barely noticed by anybody. He lived with his wife and for many years he also looked after his grandson after his daughter's husband left her. He raised the young boy and tried to send him to school. After he reached the fifth grade the boy had no desire to continue schooling. The boy accompanied his grandfather in his work and became as strong as the old man. He learned to climb high trees and worked efficiently.
Elaris was conservative in his political views. He did not talk politics with anybody but for a long time was a faithful voter for one particular party. He never sought favours from any of the leaders of the party although many of them were known to him. However, all of them knew that the old man was faithful in his voting and that they could count on his vote.
When Elaris faced this problem of the torture of his grandson he did approach some of these politicians for help. From the police station, after seeing the boy lying on the floor of the holding cell, he walked to the house of one of them. That particular politician was not at home so he walked some distance further to the house of another politician who was a Member of Parliament. It was this politician that telephoned the police station and made inquiries about what had happened to Elaris' grandson. The police informed him that the boy had been taken to a nearby hospital. Other than asking for this favour Elaris sought no other assistance from anyone else.
Elaris then went to the hospital and again found his grandson in an unconscious state lying on a hospital stretcher. There was a policeman standing nearby and having seen Elaris the policeman shrewdly enquired as to whether he was the grandfather and whether they could hand over the grandson to him but Elaris was quick in his response; he said, "You have killed my son, now you can bury him". (Elaris' believed his grandson to be near death if not already dead. In fact, he was in a coma and not expected to live. He remained in a coma for two weeks). Elaris left the hospital and went to tell what he had seen to his daughter and others.
The matter was taken up by the lawyers and they filed a case in court. When the case received wide publicity a new chapter opened.
Now many persons approached Elaris seeking his favour on behalf of the Inspector of Police of the station where the torture had taken place. These persons included people from the political party he had supported all his life. They pleaded with Elaris to say that there had been a mistake and that he should try to settle this matter with the policeman. They also said that if he did not do so it could be dangerous for him, his grandson and his family. They received a reply that they would never have expected from this humble man from the village. He told them, "I have voted for your party all my life, and perhaps if there is another election it is quite likely that I will vote for you again, but about this, don't come to talk to me. This is about my grandson and this is about a great injustice. On this I will not compromise. You can try to have my neck cut but even then you will not see me changing my mind".
They were all surprised by the adamant stubbornness of this old man. Many tried these tricks but nobody succeeded. The police inspector in this case was Narin Attanayake. He was shrewd, successful and in charge of a police station. He also had the right connections with the politicians in the area and knew how to get things done.
This particular incident caused him a great deal of embarrassment. He was extremely angry with the sergeant who messed things up for him. Yet he never showed his anger or unhappiness. Now, faced by the adverse publicity brought about as a result of this case and the questions being asked in court it was his task to show his people that he was the master of the situation and that he was afraid of no one. He had to show that he could handle the matter smoothly.
He tried to send messengers to Elaris and was quite sure that an old man, an old villager like him would easily succumb at the end. He was surprised when these things did not happen but knew not to let his fears show and behaved confidently all the time. At the Magistrate's Court the inspector behaved like a strong man. He did not care much about any of the lawyers in the court. He knew that many of them came to him for favours and knew how to manipulate the situation to his benefit. He had the least respect for the magistrate. He knew him to be an intelligent man who was also very rich. But he also knew that the magistrate was an ambitious man who had all kinds of secrete deals with the local politicians. He knew that the magistrate visited the local MP's house with the view to get some kind of higher post in the government. He was trying to get the help of this politician but in return he had to do favours for the politician and resented doing this.
The policeman knew all this and he thought he would manipulate the situation to his advantage. At the court he brought a huge knife that he has obtained from somewhere, presented it before the court and said that his officers had beaten this young man up because he tried to stab them with this knife. That was the reason for the assault on the young man and the reasons as to how he came about his injuries.
At that time the inspector did not know that this case would last for many years and would receive national attention. He was unaware that it was going to be problem for a long time and would affect his career and a situation that he could not escape from either mentally or physically. But with the stubborn old man, supported by two lawyers and publicity that was to arise in this case, the police inspector was facing something unusual, something that he not forget for the rest of his life.
Elaris had to attend many courts to give evidence. On many days the case was postponed for no reason at all. It was a tedious job but the old man faithfully visited the courts whenever he was called upon to do so.
Finally the day came when he got into the witness box before the High Court of Negombo. Elaris had never participated in any public event and this was the first time he was to give evidence in a court. Highly paid lawyers of the defense were waiting to catch out this uneducated villager by all kinds of tricks. But Elaris stood in the witness box and gave his evidence firmly. He was very careful not to say anything except what he really knew to be true. He would not allow himself to be snared by tricks that the lawyers tried on him. He stuck to his story clearly and very faithfully relying only on his memory.
It was a beautiful day in court and even the High Court judge could not help but be impressed by an old man who was just narrating a story about a tragedy that happened to a 17-year-old boy, his grandson, as faithfully as he could. Elaris proved to be a witness par excellence. Eventually Elaris had to go through ten years pursuing this case, often having to help his grandson who escaped from the village and had to go to other places to live. This also meant that in his old age the old man lost the closest friend he had, his grandson who was not only a loving son but also a faithful worker who knew his job very well. But Elaris knew that something bigger was happening. He knew that the forces he was fighting against were very powerful and he feared for his grandson's life and he helped in every possible way so that he could live far away and rebuild his life on his own. Meanwhile he managed things to the best of his ability at home.
Finally age caught up with Elaris; he suffered a stroke and was very ill for two years. Even then he was clear in his memory and in his mind. To the last he remained adamant, strong and never regretted the fact that he had taken a bold stand against the powerful in order to defend what he thought was his rights and the rights of his grandson. He had boldly put up a fight against injustice.
He was a man who spoke softly. But he was capable of showing his indignation and outrage. That was the beauty of this simple man. Justice failed him. The case of his grandson is still before court. These thing never end when the contest is between the powerless and the powerful. But the oldman knew he was not the loser. He knew that if he had not stood up he would have been the loser.
If Sri Lankan Tamils had an Ambedkar
Basil Fernando | 05:49 | 0 comments | Filed under Labels: Opinions
By Basil Fernando
Over the years, Sri Lankan Tamils have had leaders such as J.V. Chelvanayagam, G.G. Ponnambalam, Appapillai Amirthalingam, Velupillai Prabhakaran and Karuna Amman to name a few. The first three names belong to a group of elite Tamil leaders who were, in essence, Democrats. But their idea of democracy was limited, similar to the democracy represented by the elite Sri Lankan leaders at this time. For them, while they aspired to hold positions in Parliament and to represent the interests of the Tamil community, the actual articulation of the problem was limited. They tried to be specifically Tamil by stressing the oppressive nature of the majority community, which was of course, a very real political factor. However, they did not try to discuss the internal contradictions within the Tamil community itself.
The Tamil community has been deeply divided by caste. Any kind of real democratic change would have required that this internal contradiction be addressed by this community. There were attempts by leaders such as Shanmuganadan to raise this issue of the internal contradictions by attempts such as temple entry movements. Even in the case of drawing water from wells, there were rules within the Tamil community which disallowed those who were considered lower caste from using the same water wells as those used by upper castes.
The purpose here is not to give a detailed account of the caste practices within the Tamil community but to recognize a factor which is not controversial. Elite leaders have never tried to articulate this problem in a democratic fashion that would allow for a greater understanding of the challenges that Sri Lankan democracy is faced with. Had these early leaders of the Tamil community raised the issue of the internal contradictions of caste within their community they would have easily won the majority within the majority of the Sinhala community.
Many within the majority of the Sinhala community are people who deeply feel the internal contradictions within Sinhala society. They would have seen the Tamil leaders bringing awareness to a common problem that could have united them in the struggle to find the lasting solutions to these problems through a united effort of both the Sinhala and Tamil sections who are victims of this long-standing discrimination.
This would have also cut across some of the attempts to see every demand made by the Tamils in purely racist terms. A far-seeing leadership would have seen in this strategy, a way to democratically resolve both the issue of equality within the recognition of dignity of all people irrespective of caste, which would have naturally lead to the issue of recognizing people’s equality irrespective of ethnicity or race.
With the development of Tamil militant nationalism, the leadership did recognize the internal contradictions within Tamil society. However, in the political articulation of their programs, they did not adequately address this issue as a central issue of democracy. Rather, they resorted to the creation of an irreconcilable difference between the majority Sinhala community and themselves.
This was of course, required by the very nature of the shift from a democratic alternative to an armed struggle. Once the slogan of armed struggle was raised, it is quite natural to paint political problems in a black and white way. The enemy should always be portrayed in an entirely unfavourable light. Also, this requires an artificial unity amongst the persons for whom the armed struggle is being fought. In this instance, the armed struggle was fought for Tamils. Therefore, prominently raising the internal issue of caste would not have been helpful when painting this black/white distinction, and constructing easy analysis and development of narratives in terms of the history of the problem.
The very articulation of the problem required that it would be articulated within racial and ethnic stereotypes which would fit easily into the understanding of people outside of this culture who could identify with this larger issue more easily. In spite of that, their own internal contradictions led to the use of extreme violence against the Tamil leaders themselves by militant leaders. Though this appeared purely as an attempt to move from traditional leadership to militant leadership, it was also an act of revenge politics against those who were former oppressors against their own social group.
The violence exercised against their own oppressors would have given a heroic status to the militant leaders among the more oppressed sections. This is a natural situation when the struggle articulates itself in this way; to see those who deal violently with their oppressors as heroes. Thus, for building heroic images, such violence would have been helpful. However, the failure to articulate this issue in a rational way resulted in creating an artificial conception of ultimate objectives which, ultimately, would have held the germs that would destroy the movement.
If they had had an Ambedkar, what would have been the difference? Ambedkar represented the greatest known form of discrimination known to the history of humankind. There is hardly a parallel of any kind of oppression to the one that is known as untouchability. Indian untouchability is worse than caste discrimination; it is the complete rejection of human beings as human beings in totality. The meaning of untouchability itself is that people in that category should not come into any kind of connection with those who are considered the privileged or the top layer of the society. They should not be seen or heard or touched, even by way of the air that both will breathe. It meant a prohibition against eating together or the use of water ponds where people bathe, and went into every possible detail of dress, way of speech and of course, everything that has to do with education. Education was completely denied to the untouchables. Today, it has been well explained that this form of discrimination was worse than slavery or apartheid.
Ambedkar was himself the child of an untouchable at a time when untouchability was real. It was sheer accident that because of British colonialism and the recruitment of untouchables into the lower ranks of military, that Ambedkar’s father walked out of the rigour of untouchability. With the small earnings they made, this generation of the first untouchables with a small sense of freedom spent their resources on the education of their children. It was this which provided the beginnings of Ambedkar’s education. At the school, it was a complete oppression, to the extent that getting water to drink from the same tap as other students was forbidden to Ambedkar. He relates some touching events where even as a child he was led to humiliation on such issues as the drinking of water.
As Ambedkar developed his own leadership, this awareness of deep oppression led him to want nothing less than the complete end of this form of oppression. His slogan was ‘the annihilation of caste.’ However, Ambedkar connected this goal with another goal which he considered to be even higher; this was that the ultimate aim of all his work was the achievement of equality, liberty and fraternity.
Ambedkar’s writings have been permeated with a deep interweaving of the democratic ideal with the ideal to overcome the oppression of his people. His capacity to see the struggle within the totality of the struggles of the Indian people made him a supporter of Indian independence, and allowed him to be recognized as a leader by people of other sections too. Not that they were fond of him. In fact, he was one of the most hated characters by Indians of the other upper caste at the time. However, he could not be ignored. He articulated himself within the entire framework of the democratic struggle, to the extent that leaders like Jawaharlal Nehru and Mahatma Gandhi who opposed him in many ways, assimilated him into the Cabinet of Nehru’s government as the Law Minister. In this capacity, he was also the chief draftsmen of the Indian Constitution. As a result, the Indian Constitution recognizes the problems of all Indians with regard to the issue of untouchability and other forms of oppression within their society. True, it was an inadequate recognition. However, Ambedkar understood that such struggles are fought at different stages and that his primary work was uplifting, educating and making ways for his community to participate in the political process. In this way, Ambedkar developed a different model of dealing with deep oppression.
On one occasion, he stated that if he wanted to create chaos in India, God knows that he could do it. However, Ambedkar deliberately opted to move himself away from leading the struggle to the brink of violence. The whole issue came under heavy points of confrontation when negotiations were being done by the British in 1936, Ambedkar stood for specific representation for the untouchables. Gandhi, representing the Hindu community, agreed in the main agreements arrived with the British. On his return, he went back on his word and requested the British to remove that part of the agreement. They were unable to do that and then Mahatma Gandhi entered into a fast unto death for getting this particular agreement removed.
At that point, Ambedkar was pushed to the extreme, and entered into an agreement known as the ‘Poona Pact’. Ambedkar, on the one hand, saved the life of Mahatma Gandhi. On the other hand, it saved bloodshed and the degeneration of the struggle into a violent conflict in India. At that point, he said disappointedly, Gandhi has his life, but we lost our rights. But he knew there was another day to fight. When Ambedkar finally made the decision to totally abandon Hinduism, and to call for a completely culturally different approach to fighting for the freedom of the Dalits, he knew that his compromise came at a great price. He has avoided the upper caste that have the shrewd knowledge of the use of violence in order to suppress the oppressed, not to have that advantage. Having done that, he was a wise leader for his own people. However, his wisdom helped the majority to see the problem in a different perspective.
Perhaps the time has come for the enlightened Tamil opinion to seriously understand the linkages between the democracy and the minority rights. In that, they would know that there is a majority within the majority community, who are also oppressed by caste. If the caste barriers are cut across, there will be a creative regeneration of energies in Sri Lanka, to achieve a more egalitarian society which will not only resolve the deepest forms of oppression that are in both communities, but also to the advantage of Tamil minorities and other minorities to resolve their problem within an overall democratic framework which would benefit them without harming others.
Over the years, Sri Lankan Tamils have had leaders such as J.V. Chelvanayagam, G.G. Ponnambalam, Appapillai Amirthalingam, Velupillai Prabhakaran and Karuna Amman to name a few. The first three names belong to a group of elite Tamil leaders who were, in essence, Democrats. But their idea of democracy was limited, similar to the democracy represented by the elite Sri Lankan leaders at this time. For them, while they aspired to hold positions in Parliament and to represent the interests of the Tamil community, the actual articulation of the problem was limited. They tried to be specifically Tamil by stressing the oppressive nature of the majority community, which was of course, a very real political factor. However, they did not try to discuss the internal contradictions within the Tamil community itself.
The Tamil community has been deeply divided by caste. Any kind of real democratic change would have required that this internal contradiction be addressed by this community. There were attempts by leaders such as Shanmuganadan to raise this issue of the internal contradictions by attempts such as temple entry movements. Even in the case of drawing water from wells, there were rules within the Tamil community which disallowed those who were considered lower caste from using the same water wells as those used by upper castes.
The purpose here is not to give a detailed account of the caste practices within the Tamil community but to recognize a factor which is not controversial. Elite leaders have never tried to articulate this problem in a democratic fashion that would allow for a greater understanding of the challenges that Sri Lankan democracy is faced with. Had these early leaders of the Tamil community raised the issue of the internal contradictions of caste within their community they would have easily won the majority within the majority of the Sinhala community.
Many within the majority of the Sinhala community are people who deeply feel the internal contradictions within Sinhala society. They would have seen the Tamil leaders bringing awareness to a common problem that could have united them in the struggle to find the lasting solutions to these problems through a united effort of both the Sinhala and Tamil sections who are victims of this long-standing discrimination.
This would have also cut across some of the attempts to see every demand made by the Tamils in purely racist terms. A far-seeing leadership would have seen in this strategy, a way to democratically resolve both the issue of equality within the recognition of dignity of all people irrespective of caste, which would have naturally lead to the issue of recognizing people’s equality irrespective of ethnicity or race.
With the development of Tamil militant nationalism, the leadership did recognize the internal contradictions within Tamil society. However, in the political articulation of their programs, they did not adequately address this issue as a central issue of democracy. Rather, they resorted to the creation of an irreconcilable difference between the majority Sinhala community and themselves.
This was of course, required by the very nature of the shift from a democratic alternative to an armed struggle. Once the slogan of armed struggle was raised, it is quite natural to paint political problems in a black and white way. The enemy should always be portrayed in an entirely unfavourable light. Also, this requires an artificial unity amongst the persons for whom the armed struggle is being fought. In this instance, the armed struggle was fought for Tamils. Therefore, prominently raising the internal issue of caste would not have been helpful when painting this black/white distinction, and constructing easy analysis and development of narratives in terms of the history of the problem.
The very articulation of the problem required that it would be articulated within racial and ethnic stereotypes which would fit easily into the understanding of people outside of this culture who could identify with this larger issue more easily. In spite of that, their own internal contradictions led to the use of extreme violence against the Tamil leaders themselves by militant leaders. Though this appeared purely as an attempt to move from traditional leadership to militant leadership, it was also an act of revenge politics against those who were former oppressors against their own social group.
The violence exercised against their own oppressors would have given a heroic status to the militant leaders among the more oppressed sections. This is a natural situation when the struggle articulates itself in this way; to see those who deal violently with their oppressors as heroes. Thus, for building heroic images, such violence would have been helpful. However, the failure to articulate this issue in a rational way resulted in creating an artificial conception of ultimate objectives which, ultimately, would have held the germs that would destroy the movement.
If they had had an Ambedkar, what would have been the difference? Ambedkar represented the greatest known form of discrimination known to the history of humankind. There is hardly a parallel of any kind of oppression to the one that is known as untouchability. Indian untouchability is worse than caste discrimination; it is the complete rejection of human beings as human beings in totality. The meaning of untouchability itself is that people in that category should not come into any kind of connection with those who are considered the privileged or the top layer of the society. They should not be seen or heard or touched, even by way of the air that both will breathe. It meant a prohibition against eating together or the use of water ponds where people bathe, and went into every possible detail of dress, way of speech and of course, everything that has to do with education. Education was completely denied to the untouchables. Today, it has been well explained that this form of discrimination was worse than slavery or apartheid.
Ambedkar was himself the child of an untouchable at a time when untouchability was real. It was sheer accident that because of British colonialism and the recruitment of untouchables into the lower ranks of military, that Ambedkar’s father walked out of the rigour of untouchability. With the small earnings they made, this generation of the first untouchables with a small sense of freedom spent their resources on the education of their children. It was this which provided the beginnings of Ambedkar’s education. At the school, it was a complete oppression, to the extent that getting water to drink from the same tap as other students was forbidden to Ambedkar. He relates some touching events where even as a child he was led to humiliation on such issues as the drinking of water.
As Ambedkar developed his own leadership, this awareness of deep oppression led him to want nothing less than the complete end of this form of oppression. His slogan was ‘the annihilation of caste.’ However, Ambedkar connected this goal with another goal which he considered to be even higher; this was that the ultimate aim of all his work was the achievement of equality, liberty and fraternity.
Ambedkar’s writings have been permeated with a deep interweaving of the democratic ideal with the ideal to overcome the oppression of his people. His capacity to see the struggle within the totality of the struggles of the Indian people made him a supporter of Indian independence, and allowed him to be recognized as a leader by people of other sections too. Not that they were fond of him. In fact, he was one of the most hated characters by Indians of the other upper caste at the time. However, he could not be ignored. He articulated himself within the entire framework of the democratic struggle, to the extent that leaders like Jawaharlal Nehru and Mahatma Gandhi who opposed him in many ways, assimilated him into the Cabinet of Nehru’s government as the Law Minister. In this capacity, he was also the chief draftsmen of the Indian Constitution. As a result, the Indian Constitution recognizes the problems of all Indians with regard to the issue of untouchability and other forms of oppression within their society. True, it was an inadequate recognition. However, Ambedkar understood that such struggles are fought at different stages and that his primary work was uplifting, educating and making ways for his community to participate in the political process. In this way, Ambedkar developed a different model of dealing with deep oppression.
On one occasion, he stated that if he wanted to create chaos in India, God knows that he could do it. However, Ambedkar deliberately opted to move himself away from leading the struggle to the brink of violence. The whole issue came under heavy points of confrontation when negotiations were being done by the British in 1936, Ambedkar stood for specific representation for the untouchables. Gandhi, representing the Hindu community, agreed in the main agreements arrived with the British. On his return, he went back on his word and requested the British to remove that part of the agreement. They were unable to do that and then Mahatma Gandhi entered into a fast unto death for getting this particular agreement removed.
At that point, Ambedkar was pushed to the extreme, and entered into an agreement known as the ‘Poona Pact’. Ambedkar, on the one hand, saved the life of Mahatma Gandhi. On the other hand, it saved bloodshed and the degeneration of the struggle into a violent conflict in India. At that point, he said disappointedly, Gandhi has his life, but we lost our rights. But he knew there was another day to fight. When Ambedkar finally made the decision to totally abandon Hinduism, and to call for a completely culturally different approach to fighting for the freedom of the Dalits, he knew that his compromise came at a great price. He has avoided the upper caste that have the shrewd knowledge of the use of violence in order to suppress the oppressed, not to have that advantage. Having done that, he was a wise leader for his own people. However, his wisdom helped the majority to see the problem in a different perspective.
Perhaps the time has come for the enlightened Tamil opinion to seriously understand the linkages between the democracy and the minority rights. In that, they would know that there is a majority within the majority community, who are also oppressed by caste. If the caste barriers are cut across, there will be a creative regeneration of energies in Sri Lanka, to achieve a more egalitarian society which will not only resolve the deepest forms of oppression that are in both communities, but also to the advantage of Tamil minorities and other minorities to resolve their problem within an overall democratic framework which would benefit them without harming others.
Contemporary relevance of Baba Saheb Ambedkar
Basil Fernando | 05:47 | 0 comments | Filed under Labels: feature, Opinions
"Ambedkar’s Buddhism was a Buddhism of a minority trying to liberate the entire nation. Ambedkar opposed separatism but always kept in mind the unique nature of the oppression of the Dalits.".......................................
By Basil Fernando
Baba Saheb Ambedkar’s memory was celebrated by large numbers of admirers and followers in India and outside once again this week. Perhaps no other modern contemporary leader of India is as much remembered by such large numbers of (mostly much oppressed) people throughout India as Ambedkar is. One-time untouchables, who now called themselves Dalits, a name that was given to them by B.R. Ambedkar, remember him as an inspiration in their own struggles to regain their dignity. Perhaps no people have been put into such a degraded position in society anywhere as the untouchables of India. The millions of people who belong to these groups have fought a battle to re-emerge as people with dignity, and to that revival Ambedkar has contributed greatly.
Ambedkar’s political thought is still very relevant to not only to the politics of India but also to politics in South Asia in general. South Asian countries are today facing deep crises, unable to develop political and social institutions to guarantee stability to their societies primarily because of centuries of oppressive and social political systems that were their heritage due to the caste system. The caste system essentially was a system of domination by a small group, called Brahmins, who developed most sophisticated forms of cunning into the social control systems of their time in a way that even for centuries they could maintain their dominance. The damage that was done in the process of repression that accompanied the creation and the maintenance of the caste system have become the obstacles to the development of the intelligence the creativity and the capacity of all the people to deal with contemporary problems. Their past holds them in their bondage. The bonds are so deeply engrained into the very nervous systems that generation after generation people are reproduced with mentalities that prevent them from realizing the capacity for freedom and capacity for deeper social communion in each other in their social context. Deep divisiveness inbuilt into the South Asian culture was created by these centuries of subtle of social control. Methods of control were formulated as rules of religion and rituals to which the individual life was so deeply tied up.
The idea of the individual freedom is so alien to this cultural heritage. The intricate mechanism that entraps people emotionally and psychologically by various kinds of mythical beliefs got so engrained in the minds of all due to this past.
"Ambedkar’s political thought is still very relevant to not only to the politics of India but also to politics in South Asia in general. South Asian countries are today facing deep crises, unable to develop political and social institutions to guarantee stability to their societies primarily because of centuries of oppressive and social political systems that were their heritage due to the caste system. ".................................
A few great leaders in India understood the depth of the internal bondage of the Indian mind created by this history. Some saw it purely as philosophical problem, like for example Sri Aurobindo. Sri Aurobindo devoted the later part of his life trying to influence the younger generation to break away from the mindset that has entered into their society, retarding all, from one generation to another. He said that the great creativity that India once was had been devastatingly destroyed at sometime point of time.
It was B.R. Ambedkar that identified the cause of the retardation of the Indian creativity, which is also the source of the retardation of the mindsets of people of other South Asian countries. He saw that purely by way of mental exercises this bondage cannot be broken. What needed to be broken were the social the social linkages which had tied up the minds of the people over centuries. To this he gave and for the understanding of this processes he devoted his time. And his way of understanding was not by reading into the text of the past but into the lives of the ordinary folk of India spread in that vast country.
In the poverty of India was the evidence that was necessary to look into in order to discover the methods by which people lives are destroyed by this terrible heritage.
Jawaharlal Nehru in the Discovery of India tries to talk about the glories of India in the past. Ambedkar on the other hand tries to demonstrate how the glory was lost and how the bondage of the Indian minds and the Indian spirit and as a result the Indian way of life was come to what it is today. It is this discovery that has the capacity and the liberating effect that not only the masses but the entire country is in need of in order to face the challenges of the modern times.
Ambedkar was well-versed on history and the political theories which have been produced in the process of struggles for democracy. He was also deeply aware of the history of minority problems in the world. He understood that if a minority problem is not properly resolved entire civilizations can be destroyed in conflicts which not only destroy the minorities but entirety of society.
Ambedkar needs to be studied much more by the younger generations who are in search of solutions to the kinds of problems that they very often which they feel that there are no solution to. The easy solutions many have sought have not worked. There is a depth that needs to be explored in order to be able to explore all the possibilities of getting over these severe problems. In the work of Ambedkar there are great insights that are yet to be explored and in that exploration the real glories of the past of the sub-continent could reemerge. Pseudo respect for Buddhism today was challenged by Ambedkar who himself became a Buddhist by trying to rediscover the actual history of Buddhism in India. The destruction of Buddhism in India was a result of the caste struggles in India and in that struggle the certainties that the Brahmins had developed to get victory and to win back their dominance were also constantly exposed by Ambedkar.
Without doubt, Baba Saheb Ambedkar is the greatest political leader in modern South Asian history, with regard to his understanding of the linkage between social controls exercised by religion and its influence in the contemporary history. While Mahatma Ghandi saw the meaning of freedom in terms of getting rid of the colonial power and passing the power to local elites, Ambedkar saw freedom of Indians from the point of view of getting rid of cultural inhabited bondage of created by the caste system. He saw centuries old practices in which social control of the masses has been done mainly by the use of language, rituals and ‘ethical codes’ reinforcing the caste domination over the masses.
Ambedkar also saw moments of liberation in Indian history. That was the way he saw Buddhism. He called Buddha his guru. He said that he didn’t learn principles of democracy from Western philosophers but from his guru, Gautama Buddha.
"My Personal Philosophy"
"Positively, my social philosophy may be said to be enshrined in three words: liberty, equality and fraternity. Let no one, however, say that I have borrowed my philosophy from the French Revolution. I have not. My philosophy has roots in religion and not in political science. I have derived them from the teachings of my master, the Buddha. In his philosophy, liberty and equality had a place: but he added that unlimited liberty destroyed equality, and absolute equality leaves no room for liberty. In his philosophy, law had a place only as a safeguard against the breaches of liberty and equality; but he did not believe that law could be a guarantee for breaches of liberty or equality. He gave the highest place to fraternity as the only real safeguard against the denial of liberty or equality or fraternity which was another name for brotherhood or humanity, which was again another name for religion.
"Law is secular, which anybody may break while fraternity or religion is sacred which everybody must respect. My philosophy has a mission. I have to do the work of conversion: for, I have to make the followers of Triguna theory to give it up and accept mine. Indians today are governed by two different ideologies. Their political ideal set out in the preamble to the Constitution affirms a life of liberty, equality and fraternity. Their social ideal embodied in their religion, denies them." Dr. B.R.Ambedkar( From All-India Radio broadcast of a speech on Oct. 3, 1954)
In this famous radio broadcast, he summarized the fundamentals of his belief in democracy as having its roots in the teaching of Buddha. He also devoted many years of his life studying Buddhism and wrote large volumes on the teachings of the Buddha. In 1936, in a speech which now remains as a political classic, entitled ‘Annihilation of Caste’, he attributed the roots of caste to be based on the ideals of religion created by Brahminism. He declared that though he himself was born to that tradition, he will not die within it. Fulfilling this promise, 20 years later he converted himself publically to Buddhism, with over 500,000 followers in a public ceremony held in Nagaland, India.
Ambedkar’s Buddhism was a Buddhism of a minority trying to liberate the entire nation. Ambedkar opposed separatism but always kept in mind the unique nature of the oppression of the Dalits. However, he understood that unless the entire nation rejects the traditions which keep its masses under oppressive social control, the minority cannot find liberation. He was fully aware of his capacity to create political chaos if he wished to do so. He consciously avoided that path, despite of the difficulties involved. He was the only Indian leader who openly opposed Mahatma Ghandi on his limited approach to deal with the problem of Dalits. However, he shared the common burden of Indian liberation from the British and even became the law minister in Jawaharlal Nehru’s cabinet. In fact, he was the chief draftsman of the committee which drafted the Indian constitution. He understood that the minority cannot win its right by destroying democracy. He also understood that by suppressing the minorities’ struggle, the majority are ruining themselves also. How true, even in the modern context of South Asian countries.
To the struggle for enlightenment in South Asia, Ambedkar has made a lasting contribution. And this contribution needs to be understood to further the process of trying to deal with the contemporary problems within all South Asian nations.
No justice--no nation--one justice--one nation
Basil Fernando | 04:51 | 0 comments | Filed under Labels: feature, Opinions
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By Basil Fernando
What makes a nation a nation is above all the justice that prevails within that nation. It is justice that creates the bond between the people. Justice connects one with the other. Justice among the people is the one thing that is common to all in a nation if it exists. Justice binds one person or group or a particular nationality with different races and religions. Justice provides the actual bondage between genders. Justice creates the bondage irrespective of culture and language. Justice is the common language of a nation that wants to stay together and the absence of justice is the characteristic of any nation that courts disunity, instability, violence between groups and individuals. Without the bond of justice no other kind of reconciliation or inner levels of understanding and friendship can be built.
However, this area of the presence and absence of justice has ceased to be discussed when dealing with problems of violence, conflicts and the problems of dealing with even issues of terrorism and anti terrorism. Once the factor of justice is removed from the discourse of any of these subjects, voluminous discourses can be created but no real solutions can be found to any of the problems that are being discussed. In an attempt to undo violence more violence is created which in turn creates counter-violence and the cycle goes on. In the attempt to impose the power of one group over another a similar kind of cycle takes place where one power is resisted by another power which at the end develops into conflict. Conflicts in turn develop into direct or indirect violence and violence enjoys the cycle mentioned above.
This same applies to terrorism and counter-terrorism. In trying to deal with injustice by means of terrorism a counter-culture is created which justifies far worse forms of violence to suppress terrorism than any kind of terrorism itself could create. And that has the same theme; what is called achieving national security. With the idea of national security the state subjects its people to be targets and as a result the people develop a fear and distrust of the state which creates its own cycle of reactions against the state. This leads to chains of reactions in political strategies and counter strategies and the entire nations is involved in attempts in maneuvering and out maneuvering others and there is an endless cycle of deception, violence and distrust throughout the nation. Whole institutional cultures can develop in any of these areas either under the pretext of dealing with violence or terrorism or under the pretext of trying to create unity among various groups by coercion. The ultimate result of this is the loss of the very concept of the 'nation'.
Today the world over there is a phenomenon of loss in the sense of a nation at many levels. This happens not only in less developed countries and what are referred to economically backward countries or in countries where democracy is weak. This is happening today in the most developed centres in the world. The whole terrorism and anti terrorism discourse has virtually split the internal unity of many people creating internal distrust, removing the belief in the foundation of trust which helped to build unity among or within nations.
Even in countries like the United States the development of the military establishment and the internal institutions like the CIA are virtually challenging the fundamentals of the state and the governance and the principles of bonding among the people of the country as built under the original constitution.
This threat of course, is much greater in the new nations and the countries which are building their new political foundations. When there is no common bond of a justice framework within a nation that is common to all, the attempt to develop unity within the nation is bound to fail. Either competition between groups or other internal factors can intervene to transform any and all disagreements into major conflicts. This sets in motion the chains of violence as described above to sink into the internal fabric of communities and thus destroy whatever bonds may have existed in the past.
The common criteria for justice and the capacities to mete out those criteria which are available to all the citizens is the only common bond that would last and would ensure that differences are ironed out by ideologies of tolerance and linkages are built among the groups and sectors of society. The greatest parameter for developing tolerance is not culture, religion or sentimentalities that could be promoted but a common parameter and methodologies of justice that could mete out to all similar basic treatments in society.
Illusion of power sharing without a justice framework
Attempts to preach tolerance by teaching constitutional methodologies and even often what is called power sharing without providing a common bond of justice within the whole society are bound to fail. Sri Lanka's transformation into a violent nation is essentially in the area of the breakdown of the possibilities of building bridges of justice among all communities. Various kinds of coercion built on the basis of violence have developed in place of justice. On the one hand the state relies more on national security laws which in turn gradually develop into the use of the muscle power of the state agencies against the citizen has now become the outcome of all kinds of conflicts that have developed within the nation. Even the limited framework of the law and justice that were established in the past has been eroded and removed by new forces replacing ideologies of relying on the strength of armed power in order to demonstrate strength. As a result armed conflicts have developed in and between communities and between the state and representatives of groupings within the communities. The political structures which were developed have been replaced by new security structures and they in turn have been met by greater force and greater violence. The result, once again as described above, is to set in motion that chain of events where distrust, fear and a concrete loss of faith in anything that is common between the people of the nation.
In the initial stages of independence struggles the development of culture as a bond may unite a nation against an oppressor. Once independence has been achieved it becomes an obstacle against unity rather than a bond that creates unity. Language and culture without parameters of justice has only inflamed the basis for violence and conflicts rather than developing centres for linkages and understanding. Though bridges are made to bring about new constitutional setups, new types of power sharing and the like, there is no discourse about the kind of justice that needs to be developed within the nation as a whole.
Instead, the limited bonds of the law which existed in Sri Lanka in the past have now been abandoned. It is now one of the most lawless places in the world today. It has even given up the concept of respect for a constitution. The principles of constitutionalism which treated the constitution as a supreme law have been replaced by even constitutional methods which displaced the law. Lawlessness has been achieved by deep and sophisticated means. Today the limited bonds built through limited forms of equality brought about by the framework of the law have disappeared in Sri Lanka.
The disappearance in the law has been accompanied by massive disappearances of people where the state engages in murder in the name of trying to secure national security. Murder itself has ceased to be considered a major crime anymore in the framework of Sri Lanka. With that the attempt to get even limited criminal justice for the people of all communities has been lost. Today the people cannot resort even to the protection of the law in order to protect their right to life, property, their own children or anything else. A sense of the protection of the law has disappeared from the nation. The disappearance of the law is the symbolic aspect of the disappearance of justice within the nation.
There is no other way to reestablish unity within Sri Lanka between races, between the people of the same race, between the state and the people and any other relationship within the nation including those of the most intimate relationships between the sexes, the development of respect between genders, the achievement of equal status for women. In all these aspects, nothing can be achieved when justice, as the main bond is lost.
Therefore to achieve one nation the strategy must be to work towards one justice for all; no justice for any has created the present situation. This can only be broken with the common understanding that the parameters of justice have been established for all. Without that discourse on justice there is no possibility of achieving betterment in terms of internal relationships and the achievement of durable political structures. There can also be no possibility of achieving stability within the nation in terms of achieving any understanding of beliefs that are necessary to build trust among the people.
Absence of fairness and executive control of legal process
Basil Fernando | 04:41 | 0 comments | Filed under Labels: feature, OpinionsBy Basil Fernando
No citizen has a special privilege where committing crimes is concerned. Whether the crime is that of murder or rape, income tax fraud or the non-disclosure of information relating to income, it makes no difference. All citizens are bound by the same laws and therefore, those who violate such laws, irrespective of their standing in society; they should be subjected to the same consequences.
The unfortunate situation in Sri Lanka is that this elementary principle does not operate in the country. On the one hand some are allowed to commit crimes and get away with it while on the other certain persons are selected for prosecution and punishment. In this situation there is an underlying arbitrariness and unfairness. It is this unfairness in the operation relating to the basic law with regard to the crimes themselves that justifies the classification of Sri Lanka being among the most lawless countries in the world. This is not due to the lack of laws but rather the lack of the principles of fairness in the application of the laws.
"Having similar crimes and similar methods of dealing with complaints regarding criminal activities is the very essence of a society based on the rule of law and justice. Citizens must be able to complain when crimes are committed should expect that similar investigations and other legal measures will be taken to deal with these crimes."
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At present there is a debate about the disclosure of income by journalists and others. Of course no one has any right to claim any exception to the law relating to disclosure of income. However, there is a gross unfairness if there is a vast section of people who never disclose their incomes and are not subjected to any consequences. This situation makes a mockery of the law when the state puts someone in trouble for an illegal act when almost all others get away with the same act and are not in any way sanctioned. Some are suspected of amassing enormous wealth and are not forced to disclose their income according to the law while some small fry is prosecuted.
This is the same principle that has been manifestly abused in the case of retired general, Sarath Fonseka in relation to many of the so-called crimes for which he is being prosecuted. The kind of allegations that are being made have been made a thousand times against those wielding power but no one is investigated or prosecuted. The very process of trying to select some kind of offense for those who are considered political opponents makes the cynical attitude of the citizen towards the whole law enforcement exercise even worse.
Having similar crimes and similar methods of dealing with complaints regarding criminal activities is the very essence of a society based on the rule of law and justice. Citizens must be able to complain when crimes are committed should expect that similar investigations and other legal measures will be taken to deal with these crimes. However, such expectation no longer exists in Sri Lanka. Today, even the commission of murder and other serious crimes can be ignored for many while others may be prosecuted for the same offense.
Some glaring examples of this are the well known cases of torture and other extrajudicial killings. For example SSP Vass Gunawardena and his family were publically accused of the assault on Nipuna Ratnayake not long ago. This was the case of a young student who was abducted by a group of policemen under the command of a senior police officer in charge of the Crime Division. It was highly publicised with photographs and other materials in the newspapers. For a short time there were discussions and reports in the media. However, today, these policemen continue to hold office.
The worst position is when the state is able to manipulate the evidence and criminal process to such an extent that they can completely fabricate charges, arrest persons, detain them and even subject them to prosecution in the most arbitrary manner. The case of J.S. Tissainayagam and retired general Sarath Fonseka are among the more glaring instances of such fabrications. However, there are tens of thousands of such cases relating to national security laws where lesser known persons have been kept in detention for years and often subjected to torture and other forms of abuse on the basis of fabricated charges. In the disappearances in the south in the period between 1988 and 1991 literally tens of thousands of young persons were abducted from their houses and forcibly disappeared on baseless allegations and there have been no consequences on any of these matters.
Thus, in Sri Lanka's situation today the policing institution has failed to ensure the investigation of all crimes irrespective of who is involved in the commission of the crime. This of course, is not just the fault of the police but also the system of interference into the policing system by the executive. The same today applies to the Attorney General's Department which exercise the public prosecutors function. Whatever independence it may have claimed some decades ago cannot be seen today. Whenever the executive wants a particular legal opinion in its favour the executive claims that it has received such an opinion from the Attorney General's Department.
Therefore today the prosecution function is completely controlled by the executive for political reasons. Where the criminal investigation function and the criminal prosecution function is controlled politically then hardly any kind of fairness may be expected. Under these circumstances there is selective justice where some small fry is made to answer charges, for example for non-disclosure of information regarding his income while the sharks enjoy the freedom to flout the law as they wish.
3 year old Amila’s tragedy and irrelevance of politics
Basil Fernando | 04:37 | 0 comments | Filed under Labels: feature, OpinionsBy Basil Fernando
Among the stories that were reported from Sri Lanka in recent days the case of three-year-old Amila, is perhaps one of the most significant. Except for immediate press coverage of the story in a more sensational manner there were hardly any other reflections.
Amila's mother had made several attempts to draw the attention of the local government and some charitable organisations to the plight of her five children, particularly the younger ones; at the very least to have them admitted to an orphanage because the family was not longer able to look after them. All her attempts failed and there were no good Samaritans who took notice of the plight of this mother of five. Finally in desperation she threw her youngest child into the Kalu Ganga perhaps expecting to the see the end of the boy's agony.
This is not a common story. An act of this sort has seldom been reported, if at all in recent times. However, the story does not raise a very great surprise. The stark poverty of the countryside is today no longer a secret. Unfortunately in discussions on Sri Lanka the issue of poverty is only heard by way of political propaganda during elections meetings in order that one party might blame another. Once the political rhetoric is over there is no ongoing reflection on the acute poverty problems faced by a good section of the population in all parts of Sri Lanka.
What kind of meaning do the political debates in the presidential or parliamentary elections have for a family like that of Amila? These political debates do not touch the lives of the people who face this kind of problems. Regardless of whatever politics that go on, the deeper problems of poverty remain unaddressed and the poor families like that of Amila's have to face these problems on their own. At the end in desperation some tragedy takes place.
Perhaps a dramatized story of Amila is a only a revelation of many other tragedies that do not come to the notice of the public. The problems in the north and east in the aftermath of the war are now for the most part forgotten. These areas do not come to the notice of the public. How then are the displaced persons who had been unable to get the support of anyone are coping with the problems of survival? The details of their lives, if reported, would tell a different story about Sri Lanka than what is normally spoken of in the day to day discussions.
It is also the case of the people in these estates. Once again their conditions of stark poverty are not part of the public debate. Neither the ruling regime nor the opposition takes much trouble to state the actual living conditions of the people of the lowest strata of Sri Lankan society. Tens of thousands of women leave their families and go to far off countries to become domestic helpers purely to be able to contribute in some way to the survival of their families. They work in harsh conditions often without any kind of freedoms, enslaving themselves in working for other families and often looking after small children to earn some small amount in order to ensure the survival of their own children, the elders and others in their families who cannot help themselves.
The conditions of the migrant workers have never been much of a public issue discussed in Sri Lanka. The problems they face in other countries as well as the problems faced by their families are not the stuff that is discussed in parliament or even parliamentary elections.
There is a vast unreality in the type of political debates that are heard over the television and the radio regarding presidential or parliamentary elections. In these discussions there is nothing about the type of stark poverty that is experienced by the people in the countryside. There is huge alienation between the country's poor and the type of political contest that go on in the name of elections. While political factions are fighting for manapaya, (preferential votes) the deeper problems of the people no longer receives any kind of the attention in the public debate.
The tragic death of three-year-old Amila is a stark reminder of the tremendous unreality of the type of political discussion of the country when compared to the life conditions of the vast majority of the nation. While the politicians boast of bringing a golden age to the country, the mothers who are unable to meet the demands of their children face the same situation as that confronted by Amila's mother. It is easy to condemn the action of a desperate mother that throws her child into a river. However, it is only by trying to understand the type of desperation that leads to that kind of action that the true circumstances of the lives of the poor in Sri Lanka could be understood.
Lessons to be learned from Amila's tragedy
Basil Fernando | 02:37 | 0 comments | Filed under Labels: feature, OpinionsBy Basil Fernando
Amila – Priceless – is the name she gave to him just four years back. Last week, she was seen throwing the four year old Amila into Kalu ganga (river). Amila was her fifth child. She had been making efforts in the last few months trying to get her children into an orphanage but failed.
According to reports, a large crowd saw the child being thrown into the water and no one moved to rescue the child. Only one man, a lorry driver, has moved to act and tried his best to save the child.
The onlooker role has been quite common in situations like this in Sri Lanka. The last occasion which was noted for this was the case of the drowning of Balavarnan Sivakumar. However, this is not a new experience. Martin Wickramasinghe (May 29, 1890 - July 23, 1976) , Sri Lanka's best-known Sinhala writer, already noted this in his time. When writing about an incident that occurred in Panadura where a small gang of people attacked some persons taking part in a big procession, Martin Wickramasinghe noted that the whole crowd in this procession did nothing to help the few who were attacked. It was a passing by foreigner who intervened to help. Commenting on this, Martin Wickramasinghe spoke of this inability to intervene as a characteristic of the local people.
As for the act by a poor woman driven by desperation to throw her child into the river, there can be many who would be too quick to morally condemn. This reminds of the poem The Infanticide of Mary Farrar by Betrold Brecht.
Marie Farrar: month of birth, April
An orphaned minor; rickets; birthmarks, none; previously
Of good character, admits that she did kill
Her child as follows here in summary.
She visited a woman in a basement
During her second month, so she reported
And there was given two injections
Which, though they hurt, did not abort it.
But you I beg, make not your anger manifest
For all that lives needs help from all the rest.
But nonetheless, she says, she paid the bill
As was arranged, then bought herself a corset
And drank neat spirit, peppered it as well
But that just made her vomit and disgorge it.
Her belly now was noticeably swollen
And ached when she washed up the plates.
She says that she had not finished growing.
She prayed to Mary, and her hopes were great.
You too I beg, make not your anger manifest
For all that lives needs help from all the rest.
Her prayers, however, seemed to be no good.
She'd asked too much. Her belly swelled. At Mass
She started to feel dizzy and she would
Kneel in a cold sweat before the Cross.
Still she contrived to keep her true state hidden
Until the hour of birth itself was on her
Being so plain that no one could imagine
That any man would ever want to tempt her.
But you I beg, make not your anger manifest
For all that lives needs help from all the rest.
She says that on the morning of that day
While she was scrubbing stairs, something came clawing
Into her guts. It shook her once and went away.
She managed to conceal her pain and keep from crying.
As she, throughout the day, hung up the washing
She racked her brain, then realized in fright
She was going to give birth. At once a crushing
Weight grabbed at her heart. She didn't go upstairs till night.
And yet I beg, make not your anger manifest
For all that lives needs help from all the rest.
But just as she lay down they fetched her back again:
Fresh snow had fallen, and it must be swept.
That was a long day. She worked till after ten.
She could not give birth in peace till the household slept.
And then she bore, so she reports, a son.
The son was like the son of any mother.
But she was not like other mothers are - but then
There are no valid grounds why I should mock her.
You too I beg, make not your anger manifest
For all that lives needs help from all the rest.
So let her finish now and end her tale
About what happened to the son she bore
(She says there's nothing she will not reveal)
So men may see what I am and you are.
She'd just climbed into bed, she says, when nausea
Seized her. Never knowing what should happen till
It did, she struggled with herself to hush her
Cries, and forced them down. The room was still.
And you I beg, make not your anger manifest
For all that lives needs help from all the rest.
The bedroom was ice cold, so she called on
Her last remaining strength and dragged her-
Self out to the privy and there, near dawn
Unceremoniously, she was delivered
(Exactly when, she doesn't know). Then she
Now totally confused, she says, half froze
And found that she could scarcely hold the child
For the servants' privy lets in the heavy snows.
And you I beg, make not your anger manifest
For all that lives needs help from all the rest.
Between the servants' privy and her bed (she says
That nothing happened until then), the child
Began to cry, which vexed her so, she says
She beat it with her fists, hammering blind and wild
Without a pause until the child was quiet, she says.
She took the baby's body into bed
And held it for the rest of the night, she says
Then in the morning hid it in the laundry shed.
But you I beg, make not your anger manifest
For all that lives needs help from all the rest.
Marie Farrar: month of birth, April
Died in the Meissen penitentiary
An unwed mother, judged by the law, she will
Show you how all that lives, lives frailly.
You who bear your sons in laundered linen sheets
And call your pregnancies a 'blessed' state
Should never damn the outcast and the weak:
Her sin was heavy, but her suffering great.
Therefore, I beg, make not your anger manifest
For all that lives needs help from all the rest.
On this occasion, it is worth recalling and reflecting on this poem.
My Lawless Motherland (part 2)
Basil Fernando | 02:30 | 0 comments | Filed under Labels: feature, OpinionsBy Basil Fernando
Deaths of butterflies, flowers and young people
'The field is vast Where these deaths occurred. And there you prefer to be alone. …
You look over your kingdom sadly, With that royal sadness That befits the king, The sole king-” From Age Four Revisited – from a new era to emerge, 1972
In this poem, the child recognises the deaths of the butterflies and the flowers.
'Butterflies are not different from the flowers.'
'They wither away like the flowers.'
The child talks about the butterflies that await innocently. When they are caught, they make no noise. They don't bite either. They don't struggle much, even. They wither away like the flowers.
These deaths of flowers and butterflies symbolize the many deaths that were to become a part of the common of experience of Sri Lanka, for so many who were to die without much resistance. The sheer powerlessness of people, particularly the young, before the brutal forces that took away lives without much resistance. The sheer powerlessness of people, particularly the young, before the brutal forces that took away this lives without much difficulty is in the memory of any adult that looks back into his or her time. Like the way a child might remember deaths of butterflies and flowers, an adult remembers the deaths of so many young.
There is some incongruous relationship between beauty, innocence and powerlessness.
Not only likes, but dreams and expectations are also symbolized by the butterflies and the flowers. They are all destroyed by those who 'squeeze tenderly until a finish.'
The power or the idea of ruling is not about creating, caring or fulfilling. It is about destroying.
'Beautiful things are made to be destroyed.'
That becomes the ideology of power.
An adult trying to revisit the memory of age four sees the images of the deaths of butterflies and flowers, the images of all the destruction that has taken place in their country.
In a separate poem, 'The Graveyard of the Victims', the same theme is revisited.
'What then is this Graveyard What is the revelation Here And the grasshopper That keeps the guard And this sand Which defies all tyranny'
Motherland and the graveyard are two concepts which, in normal times, give opposite meanings. However, when power is blatantly abused, when the citizens' lives do not matter, when young people die like flowers and butterflies, powerless to resist their aggressors, what does motherland mean? That's the kind of question that is posed to people who live in societies facing catatrophes, whether such catastrophes of nature's making or the making of hopeless political forces. The sense of powerlessness within the citizens is a clear sign of the idea of the motherland losing its normal meaning.
In a separate poem, a wreath is placed by the wayside of a highway in memory of someone who has no grave. In times of forced disappearences, there are many whose final resting places are not known. That, too, becomes another aspect of a motherland that is in crisis.
The Wreath with no Name
‘The wreath of flowers with no name attached,
Is for you, who have no grave.
It is placed besides a road as the earth,
which touched you, Could not be found.
Forgive me for making a memorial by the wayside,
Forgive me.’
Dictators in National Clothing
Basil Fernando | 02:27 | 0 comments | Filed under Labels: feature, OpinionsResponse to Rajiva Wijesinha’s article “We need to stay with the presidential system that has proved so successful”
By Basil Fernando
The late Gunadasa Liyanage was a senior lawyer in Mount Lavinia who practiced mostly civil law. In the mid-1970’s, he was also the leader of the United National Party (UNP) supporters in the Ratmalana area. He was the choice of the local UNPers for the 1977 elections. In the days when the nominations were being prepared, he received an invitation from JR Jayawardene, the leader of the UNP, to come and visit him. When he did, JR Jayawardene requested Gunadasa Liyanage to nominate Lalith Athulalthmudali for the same seat that the people had chosen Gunadasa for. Gunadasa replied that the people’s choice was him and therefore he was not in a position to accede to the request of Jayawardene. And then Gunadasa proceeded to tell his leader, “I see inside you a dictator.” Jayawardene’s cynical retort, according to Gunadasa, was “Well, in that case, I will be the first dictator in the Sinhala national clothing.” This story was told by Gunadasa himself to many people. Gunadasa bitterly left the UNP and later even contested on behalf of a leftist party, just to demonstrate his bitterness against the authoritarian trend in the UNP. Later, despite the tragic death of one of his brothers in the hands of the JVP, Gunadasa remained steadfastly opposed to Jayawardene and defended liberal democratic values and was particularly outspoken in defense of the independence of judiciary against attacks from the ruling regime.
"The essential problems of democracy are about the participation of the people in governance. The problem is not about the powers of the head of the state. The primary issue is about the way people express themselves through their political system."
.............................................
Jayawardene’s reference to the dictator in national clothing is quite significant. All dictators defend their position on the basis that they should not blindly follow external practices which may prove unsuitable for their country and try to develop what they call indigenous systems suitable for the particular circumstances. What this in essence means is to develop a system that suits the dictator. They may of course talk about the peculiar terms that are suited to the needs of particular circumstances. That was the way the military dictators in Pakistan justified their positions, as did Suharto his position in Indonesia. That is the way Li Kuan Yu also justified his own tight control of the entire system under single party and, in fact, under the thumb of a single man.
The essential problems of democracy are about the participation of the people in governance. The problem is not about the powers of the head of the state. The primary issue is about the way people express themselves through their political system. This, first of all, means the way they express themselves through media and through their own associations. These associations include the trade unions and all other free associations through which people gather together to be strong enough to resist the absolute power of the state. What the executive presidential system in Sri Lanka destroyed was this capacity of the Sri Lankan people to express themselves and organize themselves.
In this whole process of organizing society against absolute power, law plays an important function. The principle that no one is above the law is the most important principle of rule of law that prevents dictatorship. If the head of the state is above the law, then the whole scheme is one that stands against the basic foundation of rule of law and democracy.
The system that JR Jayawardene introduced is one in which, under the guise of having a unique system, the age old system of absolute power was introduced to Sri Lanka. Giving the power to the President to destroy the capacity of people to express themselves freely through the media and through their associations, the natural consequence was the virtual displacement the power of the judiciary. One-time liberals are now declaring their loyalties to continue with the executive presidential system, meaning that system in which the president is above the law, where the freedom of expression and association is suppressed, where law is relegated into an unimportant position to be replaced by executive orders made through national security laws, and where judiciary has no real role to play on matters relating to people’s basic rights.
The dictators in national clothing may have recruited a few former liberals to be their apologists. And these apologists may want to be silent about forced disappearances, extrajudicial killings, torture, illegal arrest and illegal detentions that the agents of the dictators cause. These apologists will also defend the killings and harassments of journalists. These apologists also even go to the extent that when the agents of the dictator fabricate charges against innocent people, they implicate these innocents in the crimes that were carried out on behalf of the dictator. To these apologists, there is no difference between the truth and falsehood when it comes to the defense of the practices of the regime. Jayawardene may appear today in Rajapaksha’s clothing. However, the basic contradiction between dictatorship and democracy is not erased.
My lawless motherland - Part One
Basil Fernando | 02:21 | 0 comments | Filed under Labels: feature, OpinionsBy Basil Fernando
What am I, I ask myself
What is my motherland ?
(From the collection of poems, 'The sea was calm behind your house.' _
On the other hand if one's father becomes an alcoholic or one's mother becomes insane, despite of that the basic relationship still remains. It is so much of a bond, so much that is natural, so much which is everything, that the basic and fundamental relationship still remains.
On the other hand the fact of the alcoholism or insanity is also a fact and that is not something that one cannot ignore. It is something that one has to deal with. It also affects everything, psychologically, emotionally and in every way.
Such is the contradiction also about the motherland. Often the concept is used only to denote the romantic side of it, the better side of it and the happier side of it. However, this relationship is so deep, so natural and so total that it cannot just remain in the areas of romance or the dream.
It also affects and, in fact, also is deeply linked to the reality. Thus, everything in the motherland that is real affects this total relationship. It is still within the area of the dream. But not all dreams are sweet. There are also nightmares. The events that traumatize people are transformed into dreams and the dream world can also become a place of trauma when the problems of real life enter into the emotional and the psychological.
The problem of the motherland is also like that. When things go wrong, when violence begins to spread, when order turns to chaos, when law turns to lawlessness this affects the citizen so enormously, so fundamentally and so totally. It affects the total being. It affects the totality of a person. It affects the very depths.
For the poets of my childhood who were known as the Colombo poets the concept of the motherland was more of a romantic concept and one which was more linked to the nature.
P.B. Alvis Perera was perhaps the most vocal among the poets who talked about “mage rata” (my country), using the word 'mage' in a comprehensive way, a possessive way, claiming that everything that was beautiful in nature and in the land as his. He wrote about the mountains, the rivers, the fruit, the trees and everything that was nice and beautiful. One of his poems beginning with the words: 'Mahaweli, Kalani, Walawe, Kalu yena Ganga', the rivers called Mahaweli, Kalani, Walawe Kalu was on the lips of every child and was sung with some pride.
These rivers flowing from the Samanala mountains carried in their bellies the gems. These rivers fought courageously their way to the sea with the view to give everything that they had to the sea. Such was the way that the poet saw the rivers. The river motif is a powerful poetic image. That imagery of beautiful rivers in a beautiful country talked about beautiful people and everything that was beautiful. That was how things looked in the 50s and even the 60s. It was still an idea of a beautiful land where beautiful people lived beautiful lives.
This image of the beautiful people doing beautiful things changed in the 70s and that change has remained a permanent factor up to now. Things turned ugly. Things turned into violence, the young were killed brutally .
The young of every nation is the beauty of every nation. It is in the life of the young that the beauty of the nation is most reflected. In my first Sinhala collection of poems the title was, 'The young lad died'. “Kuluwa Malaye”. That was when the killings of 1971 were happening. The killing of young people in what was called a rebellion.
The bodies of the young boys and girls floated in the rivers. They floated in those beautiful rivers; in Kalani, Kalu, Mahaweli and all these wonderful rivers that the poet spoke of so eloquently. The bodies of the young boys and girls floating in the rivers changed the very imagery of the rivers. It changed the very imagery of the nation. From then on it was another story. The motherland became a lawless land. The state that was there to protect began to kill. It began to kill the young, the very spirit and essence of the nation.
And the “kabaragoy” that used to float on those rivers added to the ugliness. They were eating the bodies of the young. The beauty turned into ugliness; the law into lawlessness. In the motherland there was murder.
A Dutch director of a documentary called Sri Lanka 'murderland'. The motherland had become the murderland. Thus, two contradictory aspects began to emerge in the nation; the beautiful nation and the ugly nation; so majestically beautiful in nature, so vile and violent in dealings with the people. This vast change was not something that was, or is, possible to escape the eye, the emotion and the expression of the citizen.
The citizen sees, the citizen feels and the citizen is traumatized by the depth of violence in the nation. It is this that was caught up in the imagery of the following poem.
Mahaweli, Kalani, Walawe, Kalu Ganga
I used to sing
kavi from padyawaliya
Mahaweli, Kalani, Walawe, Kalu Ganga
Flowing from the butterfly hill
Heard songs also of ratharan puthun
And charming girls growing in the villages
Then I saw
bodies floating in rivers
rainwater flowing from the mountains
mixed with blood
floating bodies
eaten by kabaragoy
Now I do not like to hear of
Walawe, Kalani and Kalu
Mountains have lost
Mystery or attraction
In the eyes of mothers
I did not see tears but distrust
What am I, I ask myself
What is my motherland?
I want to sing those same poems
to that I can't bring myself.
(kavi—Poems, Padyawaliya—A school anthology; Ratharan Puthun—Golden sons; Kararagoy—water monitor).
Legal Profession and the Protection of Individual Liberties
Basil Fernando | 02:19 | 0 comments | Filed under Labels: feature, OpinionsBy Basil Fernando
A few decades ago, Bunty De Soysa was one of Sri Lanka’s leading criminal lawyers; at one point, he was also president of the country’s Bar Association.In one case, he represented a group of young leftist radicals in court who were charged with offences relating to their political activities. During the course of the consultations for this case, the young radicals teased their lawyer, saying: “You lawyers only do these things for the money.” Mr. Bunty Soysa retorted with “one day, when you don’t have lawyers, then you will understand their value.”
Lawyers still exist in Sri Lanka, however, their power and influence have greatly diminished. Under those circumstances, people are beginning to understand what it means to be without vigorous and fearless legal representation. Today, the Sri Lankan public is forced to reflect on how the capacity of lawyers to protect the individual liberties of their clients has waned, and are beginning to examine ways in which they can fight back to regain this essential service.
The loss of Sri Lankan lawyers’ capacity to effectively advocate for their clients is intertwined with the undermining of the judiciary’s capacity to protect the rights of individuals from deep inroads into their personal liberties by the Executive. When we speak of the independence of the judiciary, we refer to the judiciary’s capacity to protect the individual against an overpowering state. However, since the changes to the Constitution made in 1972 and 1978, the capacity of the Executive has been enlarged and the role of the judiciary has been proportionally diminished. As such, constitutional changes which undermine the separation of powers is a foundational reason for the changes that have taken place in the judiciary, and in the role of lawyers.
With the expansions of the power of the Executive at the expense of the power of the Parliament and the judiciary, the institutional safeguards that once prevailed within Sri Lanka’s legal framework have undergone a transformation. The positioning of the Executive over the entire system of governance has resulted in the deep diminishment of Sri Lanka’s rule of law system, and by extension, the role of the law itself.
The various orders that the Executive is able to make while ignoring all required legal framework has created limitations on the power of the law. This tremendous transformation which relates to the law itself has received little attention in public debate, partly because as far as laws in legislative enactments are concerned, there has been little change. Indeed, the laws (more or less) exist in the same way as in the past, however, the Executive can ignore these laws without incurring any legal consequences on that basis as the capacity of the Executive to ignore the law has greatly increased.
It may be useful to illustrate the way in which the Executive can ignore the law and suffer no legal consequences. Let’s take the case of an emergency law which gave the power to a police officer not less than the rank of Assistant Superintendent of Police to authorize the burial of a dead body. This kind of emergency regulation virtually suspended the normal laws relating to the dealing of deaths under suspicious circumstances. Normally, such a death would have to be brought to the notice of a magistrate by the relevant police authorities and a judicial process would then determine the cause of death. This judicial process will ensure that if criminal activity is a factor in the circumstances of the death, then such activity will be investigated and the alleged perpetrators would be brought to justice. However, when an officer no less in rank than an Assistant Superintendent of the police authorizes the burial of a body, he is under no obligation to follow the required legal procedures. Thus, whether the person in question was killed or died under natural circumstances would remain an unresolved mystery. Such a regulation can also create the conditions for secret burials; once a death is not registered as required by law, then burials can take place in secrecy and the whole matter would incur no legal consequences for possible perpetrators.
Such changes - either by way of emergency regulations, national security laws or simply by the direct orders of the high officers of the Executive - have resulted in the displacement of Sri Lanka’s required legal processes.
Moreover, the capacity of the Executive to ignore the law can exceed far beyond the laws relating to criminal procedure or administrative matters, and can even reach the Constitution itself. For example, under the 17th Amendment to the Constitution, the important appointments, promotions, transfers and dismissals of public officials in some of the main public institutions can be done only by commissions appointed by the Constitutional Council. However, the Executive could ignore the constitutional provisions. The Executive could ensure that the Constitutional Council does not come to be, and could also ensure that such appointments, promotions and the like are made by the Executive. That not withstanding, these appointments, promotions and the like will remain valid as practical methods for dealing with some issues will become impossible if proper the legal process is to be observed.
When the law can be ignored, the role of the lawyer is naturally, greatly lessened. The basis on which a lawyer can make interventions on behalf of his or her clients is the law itself. The lawyer could insist that the laws relating to a particular issue that affect his client have not been observed or have been violated entirely. However, once lack of observance or violation of the law is not a matter of significance, the lawyer is reduced to making various kinds of protests which do not have any consequences before the law.
When the importance of the legal process is reduced, the role of the judiciary is also reduced. In many instances, the judiciary is weakened to a position where there is almost nothing they can do to intervene for the protection of the rights of an individual who may have suffered adverse consequences due to the action of the Executive. The judiciary may be able to point to particular laws that should have been observed, but have not been observed. However, non-observation may have no consequences. As such, the judiciary becomes incapable of providing the redress that the law requires the judiciary to provide.
Once the judiciary cannot provide the appropriate redress, then the citizen will find little reason to go before the judiciary to make their complaints. In this manner, the whole process of citizens’ interventions before the courts to seek legal redress suffers enormous setbacks. This is the situation that has existed in Sri Lanka for several decades now; the powerlessness of the courts to provide redress results in the equivalent powerlessness of the lawyers to make effective interventions before the courts.
Added to this, are the intimidations, harassments, death threats and even assassinations that may be posed to lawyers who insist on the law and attempt to carry out their obligations within the framework of the law. For example, a judge who hears a case which the Executive does not wish to make an effective intervention on may face serious consequences. An atmosphere of psychological intimidation may prevail within the judicial circles themselves, and judges may become confused as to whether they are able to intervene on a particular matter and give the type of redress that the law, under normal circumstances, would allow them to provide.
When there is such an overwhelming atmosphere of intimidation and fear within the judiciary, this will naturally affect the role of lawyers. The lawyers would not know whether going to court would produce the type of result that they would wish it to produce within the legal framework of the country. As such, a semi-conscious process of distrust of the judicial process takes place which creates a deep sense of alienation between the judiciary and lawyers.
This is not necessarily a particular distrust they may have regarding ‘good’ or ‘bad’ judges; rather, this arises from an overall scepticism about the system itself. The belief or perception that the Executive is able to correctly or otherwise get their way and deflect various attempts to achieve legal redress, creates a psychological climate which is entirely adverse to the atmosphere needed for the functioning of a proper legal profession.
Thus, the questions of protection of the individual are deeply intertwined with the problems of the independence of the judiciary and with the role lawyers play under the present context. Without dealing with these overall problems and achieving substantive changes in favour of the building of the basic rule of law systems, the very survival of the legal profession as a profession capable of protecting the rights of the people through the law will remain very much under suspicion.