Ceylon Today Editorial

TAMILS – THE DEFICIT OF TRUST

19 March 2017

The crisis of modern democracy is profound. It is also one that is relevant to the Lankan experience of the Judiciary and the concept of justice as we have known them over the past 15 years or more in this country. Free elections, a free press and an independent judiciary mean little says Arundati Roy, adding that the crisis factor appears when "the free market has reduced them to commodities available on sale to the highest bidder".

Before this government came to power Sri Lanka struggled through a crisis of democracy in which social justice and political justice were mere commodities in the political market.Those were the years in which we could have written "Ichabod" across all our courts of law. Those were the days when true, patriotic war heroes who commanded the Army against ruthless terrorists were dragged along pavements, shoved into vans and dumped on the cold, filthy floors of Welikada Prison. Those were the days when a Chief Justice was subjected to national and global public ridicule because she said "enough is enough" and would not let herself be bent any further to permit the law to be made a plaything of the rulers who were then bent on making a mockery of the Constitution.

The Tamil population and the world looked on....and absorbed, and analyzed this phenomenon. Can anyone, therefore, blame them for demanding independent judges on a war crimes probe or even on a Truth Commission which many Tamils now seem to be rejecting?

Last week the TNA rubbished the idea of Tamils receiving justice even in the case involving the promised return of land in Keppapilavu and other major earlier Tamil land holdings. One needs to be careful in making this differentiation between the largely peace-loving Tamil people instead of tarring them with the terrorist brush. We hailed the return of land in Keppapilavu to the original settlers, who were told received land grants to that land as far back as 1920. Alas, only a handful of few have been allowed access to their former homes there. The same is true of land belonging to many thousands of other Tamils in other areas which are either occupied by the Air Force or Army.

This shows us that justice is not merely delivered by the Judiciary. Certainly not! It's this message that is not getting across to the authorities adequately. The Judiciary is only a last resort when justice has been denied to a citizen in his daily life. Issues such as this taken together with the experiences at the hands of the law and judiciary during the tenures of the former government are the basic factors which burned into the Tamil psyche a deep distrust of what we will refer to as the Law and the Judiciary in Sri Lanka.

What the Tamil psyche cannot erase from its collective awareness is the impression that even today's Judiciary, in the context of a war crimes probe, will not essentially be really and truly independent of the Constitution because it is perceived as being still a pliable tool in the hands of those who formulated the Constitution and hence indirectly derive their powers from them. When Prime Minister Ranil Wickremesinghe said a fortnight ago that the government simply cannot take a proposal for foreign judges on a probe commission, to a referendum, he was stating a simple fact. But the Tamils see this as confirmation that the new Constitution, which will presumably be the one under which a war crimes probe will be launched, will be a majoritarian will reflected in the voting by their MPs in the Legislature. And it is that Constitution that will determine the appointment of Judges, who are seen as "Commodities available for sale to the highest bidder." History, therefore, is the factor at fault here. We have had personal experience of seeing these 'commodities' adorning the seats of high judicial office not very many years ago. This needs to be said only because someone has to make an effort to prod both sides into a deeper understanding of real factors which create this huge deficit in trust in the Tamil psyche in what is seen as the "Sinhala Majority Judiciary" and not just as the Judiciary per se. Recent historical experiences have burned deep wounds of distrust into the collective Tamil mind. The powers that be must examine this truth and do something constructive to demonstrate to the Tamils convincingly that they really and truly can trust...have faith in the Lankan Judiciary when they come before it in a war crimes probe, for justice.

But, first we must earn that trust by delivering justice to them outside the courts of law, commissions etc.

We can begin that process by restoring to the homeless their former homesteads. It will go a long way to regaining their trust.