The battle for Sovereignty

2017-12-21 00:25:09

Not too long ago when economic, social, political circumstances were not too different to what we have now in Sri Lanka there were some individuals who shouted themselves hoarse insisting that Sri Lanka was a failed state. Maybe they’ve quite lost their throats now. Maybe selective blindness has deteriorated to complete myopia. At any rate they are silent now, even though there’s enough to whine about and indeed they would probably have tried to whine about had it been a different set of crooks, brigands, liars and other miscreants in power.   

Sri Lanka was not a failed state then and neither is it now. It was, for reasons of terrorism in the main, a failing state. It was still a failing state post-May 2009 for reasons that had little to do with a war or the purported communal anxiety that engendered the conflict. It was failing because of glaring flaws in the institutional arrangement, beginning from the constitution and including the main branches of the state, namely the legislature, judiciary and the executive. These were not entirely separate as per the ideal, but were flawed in and of themselves.   

And yet, for reasons that have little to do with weak words and faulty systems, Sri Lanka has remained a resilient nation and Sri Lankans have proved they are a resilient people. How else can one explain the fact that the country has not gone down to tube despite a thirty-year long war, two insurrections brutally put down, a devastating tsumani, serious calamities both human-made and natural, and the democracy-crippling constitution we have been saddled with for forty years?   

We are resilient but we are failing. We are resilient and we aren’t quite out of the woods; we are lost deep inside, it seems. We have had heroes and I’m not talking about only those who were state-agents who made unthinkable sacrifices but all fighting forces who laid down life and took risk to further a cause they believed in. I am talking also of the everyday hero who took and take hits and still refuses to fall, and if fall he/she does nevertheless strives to get up and face the next long day of struggle.   

We are heroic in that way, in our daily lives, but there’s heroism that goes unnoticed and unsung; heroism that is not about ‘the moment’ or a ‘this day’s have-to-do-thing’ but stuff that is done for the betterment of all, for the correction of systemic flaw. Heroism that’s all about recovering sovereignty for each and every citizen.  

This is a note, then, about a hero. Nagananda Kodituwakku. He’s a lawyer who is devoted to public interest litigation. He is a man who is vilified in certain circles for reasons that have nothing heroic about them. He has talked of contesting the next presidential election and has frequently stated what kind of constitution he would help enact. And he fights in court almost on a daily basis.  

He’s taken the high and might on. The ‘high and mighty’ in all three branches of the state, let us add. Interestingly, when he took on the judges, three colleagues in the legal profession stood up against him, claiming that lawyers cannot institute legal action against judges.   

Now these individuals were not retained by the defendants in the case. One might think that they were upright individuals concerned about the integrity of the entire judicial system. On the other hand, one might suspect that they were in fact buying determination-insurance or offering a maanasika allasa (an emotional bribe). They found, later, a ‘client,’ the Bar Association; not exactly the paragons of virtue, one should note.   

In any event, as Kodituwakku has pointed out, the Latimer House Principles which are often cited in our courts clearly states that ‘no contempt procedures shall be used to restrict legitimate criticism of the performance of judicial function,’ which is exactly what Kodituwakku’s crusade has been all about.  

Steps are underway to de-bar Kodituwakku. What the court eventually determines and what the Bar Association does is of course not our business at this point. What concerns us is the allegation of judicial corruption. We live, after all, in a country where judges of the Appeals Court are handpicked and offered the Attorney General’s post and where AGs are made Chief Justices. This is why we mentioned earlier of the lines supposedly separating the branches of the state being blurry and suspiciously so since no action has been taken to obtain clarity.  

Kodituwakku has referred to Rule 16 of the United Nations Basic Principles on the Role of Lawyers: ’All Governments shall ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference.’ The man has been subjected to these things.   

This is a note, then, about a hero. Nagananda Kodituwakku. He’s a lawyer who is devoted to public interest litigation. He is a man who is vilified in certain circles for reasons that have nothing heroic about them

He also quotes the following from the Latimer House Principles:  

“Judges are accountable to the Constitution and to the law, which they must apply honestly, independently and with honestly. The principles of judicial accountability and INDEPENDENCE underpins the public confidence in the judicial system and the importance of the judiciary as one of the three pillars upon which a responsible government relies.” [Emphasis his]  

Will Kodituwakku prevail? When the entire system is challenged and along with it all those who have by omission and commission nurtured wrongdoing, the entire institutional arrangement and its beneficiaries can only be expected to close ranks and fight to retain bread-butter yielding processes.   
The system has loopholes. It has devices that can disrupt and demoralize the challenger(s), for example multiple mechanisms for postponement.   

Kodituwakku, to his credit, has shown no sign of being stopped by such things. He believes that one of the factors that can help eradicate corruption is ‘a firebrand judiciary committed to protect, vindicate and enforce the judicial power of the people (which) it exercises purely on trust (Article 105), strictly in accordance with the Constitution and the law.’  

Quoting Lord Justice Denning, Kodituwakku impores, ‘…   

Judges cannot afford to be timorous souls. They cannot remain impotent, incapable and sterile in the face of injustice…’  

One individual is not a front, but when that individual is determined, honest, brave and is empowered by the logic of argument and the righteousness of cause, his/hers is not a lone voice in a wilderness. It echoes, it persuades others to take up the cause.   

Such an individual is a standard bearer for that which is wholesome, a champion of the citizen and a builder of a better tomorrow.   

We cannot let him fight the good fight alone. We let him down and we let ourselves down. We abandon him in the battlefield and we dig a grave for sovereignty, citizenry and nation. Then would we have failed ourselves. Then would we have nudged the nation from failing to failed.   

Do we want to be a sovereign nation, or do we want our crippled sovereignty to be felled and then buried? Kodituwakku says ‘no’. What do we have to say?  

Malinda Seneviratne is a freelance writer.

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