By  Basil Fernando –

Basil Fernando

The Parliamentary Select Committee‘s inquiry has raised the issue of the politicians being judges. Some have even said that the politicians have a better right to judge because they are elected representatives of the people whereas the judges are not.

The people elect their representatives for particular purposes. By the very nature of judging guilt and innocence that is not a matter that would depend on people’s consent even if a hundred percent of the electors declared a guilty person innocent or an innocent person guilty, their verdict do not represent justice.

This is not a difficult problem to understand. We entrust only qualified medical doctors to deal with the affairs of illness and healthcare. It is only qualified and experienced surgeons that we entrust with the duty of conducting surgery. This list can be long in terms of various other professions.

In each of these the efficacy depends on “a judgment made” on the basis of evaluation of factual circumstances and established principles that belongs to each of the branches of such professions. Where no such knowledge of those principles exists there cannot be a valid judgment within that field.

Among all subjects that humans have to deal with the most difficult are the problems of justice. Justice means fairness as John Rawls so comprehensively explained. Dealing with fairness is perhaps the most complicated and difficult of all categories of thinking and arriving at conclusions.

This may be illustrated by an example. Between 1975 and 1979 Pol Pot ruled in Cambodia, during which time, one-seventh of the population of that country was destroyed. Among them was almost the entirety of the educated sections of the society. Among all other professionals lawyers and judges were also completely wiped out.

Between 1980 and 1989 there was the period of trying to rebuild Cambodia out of the tremendous and indescribable destruction that was caused in the past. Much of the rebuilding took place under the guidance of the Vietnamese advisors. It is they who built the new administrative structure, though at a most rudimentary level. The biggest obstacle they had for rebuilding of the structure was the absence of trained human resources.

Where this was most manifest was when an attempt was made to create some form of a court system. It was an elementary dispute settlement system and not a formal justice system. However, even to do that there were no educated group of persons. People were randomly selected mostly by the skills they have shown in party work to works as “judges” in the new setup.

When the UN Transitional Authority started in 1992, to prepare the elections for 1993 May, one of the major problems that were identified was the absence of the justice sector. The UN and the international agencies tried to conduct training programmes for “the judges.” In one such programme where many “judges” attended was to last for two weeks and was attended by two internationally renowned judges, one from India and the other from Australia.

After the second day of the sessions, “the judges” requested that they needed special sessions where they want to raise some questions and it was accordingly arranged. During this meeting Cambodian “judges” asked the international experts what they are proposing to achieve by this training programme to which the international experts replied that they were trying to help them to be trained as judges. The Cambodian “judges” in return asked how long does it take in other countries to make a judge. The international experts replied with the details of legal education, followed by periods of actual practice of law and thereafter the selection process to become judges and the gradual process of learning from being a lower court judges to ascend to various steps in the judicial ladder, which in each case took many years. The Cambodian “judges” then asked the experts, whether they thought it is possible to give that training to them in two weeks. Thus exposing the ridiculousness of the situation.

Judging in a judicial sense involves dealing with the problems of truth without consideration for anything else. Acting without consideration for anything else, one of the most difficult endeavours for humans. In normal circumstances, people think of so many things when dealing with any particular thing. People bring into their judgments the problems about their personal ambitions, expectations and hopes, problems of their families, of those relating to their properties and other issues concerning with prestige, reputation and the like. A judge alone is expected to completely disregard all such matters in dealing with the questions of guilt or innocence of persons they are judging.

A politician is by the very nature a person who cannot divorce his political interest from his judgments. In fact a politician is a person who has internalised abilities to turn everything into a political advantage. What votes he would gain or lose, the implications of that he does has on the political party he belongs to and the problems of power are the maters that the politicians mind deal with all the time. A politician simply cannot make judgements, which could have disastrous impacts on the interest of his political party and his own political interest.

Thus when the politicians sit in judgment on issues on which they have a deep interest such for example as the outcome of this inquiry into the Chief Justice‘s affair there is no possibility at all of such politicians being able to deal with the intricate problems of fairness which is the essence of justice.

A nation that is incapable of ensuring of ensuring a process of justice is a society in great peril for no single case is case only about the persons involved. The standards of justice affecting each case, affects the entire society. And this is even more so when obvious matters of national interest such as the case of the Chief Justice is involved. If such an activity is done with careless disregard for basic issues of fairness, the society as a whole will have to pay a huge price for the absence of justice.

Read more about the Impeachment against Chief Justice here