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SRI LANKA: We dream of an independent judiciary

November 26, 2012

SRI LANKA: We dream of an independent judiciary, says a released Burmese political prisoner Basil Fernando

In Yangon, I have been meeting many persons with long stories to share. Some of those whom we have met are the daughter of the first Prime Minister of Burma, who has returned after 35 years of exile in India. I also met political activists released from prison after 22, 17 and 5 years. The AHRC also visited a 33-year-old engineer who had no connection to any political party, but mistakenly arrested, tortured and detained in a prison for over two years. The authorities had severely tortured. This person is released from prison now, but completely bedridden with serious spinal injuries. His only aim, he said, was to get his name cleared from the false accusations so that there will be no black marks upon his two children.

Despite shocking stories of detention and torture, there is in the air a spirit of hope and expectation at the moment. Almost all these politically active persons say that they have a breathing space now and things are little better. There is freedom of speech and the right to demonstrate to a larger extent than ever before and some talk of reforms.

One human rights activist released after about four and half years said that there is no democracy without human rights. When asked about the independence of judiciary, he said, "that is our dream, but for over sixty years we have lost everything." The judiciary was totally controlled by the administration. Every decision was given according to what the administration wanted. Now to some extent there is a little unwinding of that grip. But there is a long way to go.

No one by now have adequate understanding of what independence of judiciary means. The idea of individuals protected by judicial intervention is as they say a dream. However what that is and how it will be achieved, they have no idea at all.

These days when the independence of judiciary in Sri Lanka is under mortal threat it is worth for us to come to Burma and see what they are about to lose. To lose the independence of judiciary for the Burmese meant years of imprisonment without committing any crime and without any possibility of relief that could be obtained through the intervention of the court. They do not understand an independent legal profession means but they know of many instances where lawyers' licences have been cancelled because they tried to stand up for their clients and professional freedom. On one occasion, even when an angry client who has lost his faith in the courts expressed his protest by way of withdrawing the brief of the lawyer the client and the lawyer were both imprisoned and the lawyer's licence cancelled.

If the assault that is taking place on our judiciary succeeds in favour of the executive soon none will have an idea of what the independence of the judiciary would mean. Perhaps nobody would know of courts except as one more instrument of repression.

That is what Burmese had to learn about courts and justice. Just now after over 60 years of loss, when there is some fresh air, the Burmese have started dreaming of a country where there is independence of judiciary. When a person goes to bed with a hunger, he or she is likely to dream of food and drink. Justice too could become such a dream under these circumstances for us, very soon.

It is true that our judiciary did not do enough to protect their own territory. Very often, particularly in the recent decades the judiciary betrayed the people's hope for justice and fairness. All this said it could still be said Sri Lanka has not yet lost everything. There is still some space for justice and with a good fight from everybody that space could be expanded. But it can also be lost altogether. The present farcical impeachment of the Chief Justice is therefore a crucial moment. It would be a pity, if the generations to come could only think of independence of judiciary and justice as a mere dream.

About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.


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