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Ruling the Law

Recent weeks have seen much comment and criticism of the impeachment of Chief Justice Shirani Bandaranayake by a Parliamentary Select Committee appointed by the President's brother Chamal Rajapaksa. The vocal criticism was followed by celebration on Monday when it was quashed by an Appeals Court. Whilst the incident appears to have inspired many Sri Lankans to rally against it, to the Tamils in the North-East the entire saga pales into irrelevancy. The heightened drama surrounding it, only serves to highlight the long-standing absence of meaningful judicial process and rule of law available to them.

Since 2009, actors both inside and outside the island have expressed increasing concern regarding Sri Lanka's rule of law, specifically lambasting political interference and militarisation of law enforcement and security agencies, as well as the brazen culture of impunity. The state's use of paramilitaries, the failure to prosecute those responsible for the deaths of journalists and human rights activists, and the intimidation of the lawyers and judicial persons have drawn much condemnation. The impeachment of a Chief Justice for making statements critical of the government no doubt further adds to the generally worsening stench of the Rajapaksa rule. However, when juxtaposed against the flagrant abuses that continue to take place in the North-East, the extent of incredulity and international wrist wringing generated by the impeachment appears utterly absurd and insensitive to the core issues and day to day concerns of the Tamils.

What the condemnation ignores, is that the Tamil nation is disproportionately affected by failings of the legal system. Over the same period of time as the impeachment saga, leaked World Bank data asserts over 100,000 Tamils went missing in 2009, students at Jaffna University marking Remembrance Day were arrested under anti-terrorism legislation by security forces, and political figures have faced increased intimidation. The steady stream of white-van abductions, reports of torture, and unearthing of mutilated Tamil bodies continue, despite the burgeoning number of 'law and order' forces deployed. Yet the judiciary and legal system as a whole have comprehensively failed to act as a constraint on these abuses.

The judicial system's failure to safeguard and protect the Tamils is not a Rajapaksa era phenomenon. One of its key failings - which led to calls for secession and continues to fuel resentment today - is that within the Sinhala Buddhist Sri Lankan state, not all are equal before the law. There are structural failings that allow Tamil oppression to take place with impunity, and Tamil resistance to be criminalised:  on-going use of the notorious Prevention of Terrorism Act, lack of legal aid to all terrorism cases, indefinite  detention without charge of alleged LTTE cadres, paramilitary white-van abductions and the constitutionally sanctioned criminalisation of Tamil political aspirations through the Sixth Amendment. Yet, the Sri Lankan judiciary has never sought to challenge legally enforced structural oppression or legal exclusion experienced by the Tamils. Once again, its current uproar does not address this, but calls for a return to status quo, where the Sinhala Buddhist make-up of the island is safeguarded against the excesses of the presidency. In short, the judicial system's complicity and sanctioning of measures that consolidate Sinhala Buddhist supremacy, have been key to the construction of Sinhala ethnocracy over the past sixty years.

Presidential whim has become a regular component of the Tamil judicial experience. On Tuesday, Jaffna University students who had boycotted classes in protest against recent arrests resumed classes after the Education Ministry official warned resumption would result in the release of four students over subsequent weeks, whilst continued protest would result in the university closing for a year. The students have effectively been held to ransom, forced into subjugation with no avenue of peaceful protest, and instructed to be grateful for what is offered. Other displays of presidential magnanimity towards the Tamils include the pardoning of the Tamil journalist Tissanayagam and the release of alleged LTTE cadres held indefinitely without charge on Tamil festive days. In the absence of the rule of law and due process a Presidential pardon is nothing but an edict from a medieval king's court.  Far from being a gesture of goodwill, these politically motivated arbitrary boons bestowed upon the Tamil nation serve to ensure that the oppressed are kept subjugated; denied equal access to the law, but instead at the mercy of it and those that rule it. To Tamils therefore, international criticism of the impeachment of the Chief Justice, or the quashing of it at an Appeals Court is of little concern.