The Queen’s decision to cut back on long-haul flights has avoided the need to address the rights and wrongs of her presence at the Commonwealth summit in Sri Lanka, where the rule of law is cause for concern.
As has been widely reported, the removal and impeachment of their chief justice is the most recent development.
Shirani Bandaranayake had infuriated the government by declaring unconstitutional a bill that would have centralised political power, in particular at the expense of the, largely Tamil, northern province, and given the minister for economic development wide-ranging powers to infringe upon civil liberties.
But there is a question that neither the advancing years of our monarch nor neat pieces of protocol can get rid of. That is whether Britain’s global common law legacy is less durable than we like to think.
Together with the familiar-looking green benches of parliaments in various former British colonies, lookalike court systems – including gowns, wigs, gavels and weighty legal tomes – symbolise a good and benign side of the post-colonial legacy.
It isn’t just that these institutions saved face for Britain as its thinly staffed empire unraveled – although they certainly did that. A generation of proud lawyers grew up in, valued, and were shaped by these legacy legal systems. Many are members of the Commonwealth Lawyers Association.
But how often can lawyers and the courts take an effective stand against major assaults on the rule of law? The truly depressing answer is roughly once.
That’s not to say brave lawyers in-country, and supportive peers abroad, don’t carry on trying after such a singular assault. But once seems to be the pattern.
In Zimbabwe, chief justice Anthony Gubbay ruled illegal the fast-track land seizures that presaged the country’s descent into economic and democratic crisis – and was replaced by a more pliant jurist.
In Fiji in 2009 the court of appeal ruled the government of Frank Bainimarama, which had seized power in a coup, should be removed – a brave stand, and the judiciary’s last, as all judges were dismissed soon after.
And in Sri Lanka Bandaranayake got to make the stand just once – her distinguished career apparently causing a heavy-handed government no blushes as it ended her tenure.
Brave jurists in each case did not take pointless actions – they drew our attention to brutality and unfairness in ways that were loud and unmistakable. In such cases, it’s then up to the rest of the world to act – or not.
But the depressing truth, as these jurists knew, is that such judgments are bee stings – they can use them just once – and these three country’s courts now have the trappings, but not the standards, of jurisdictions where the rule of law applies.
In far too many countries, the law is a legacy whose institutions and benefits are fading.
Eduardo Reyes is Gazette features editor
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