By Laksiri Fernando –

Dr Laksiri Fernando

I never contemplated that I may have to contradict or dispute Prof Carlo Fonseka one day whom I admired in my young days, and even thereafter, as an impressive ‘fire walker’ and an exponent of rational views on many matters, social and natural. But on many previous instances, I doubted his political views or judgements, but not on the reason of bias or prejudice. Now the things have changed. While pretending to be preaching a ‘Sermon on the Mountain’ on this Christmas eve on ‘personal bias,’ ‘prejudice’ and ‘conflict of interest,’ he has himself shown his bias and prejudice from his very first sentence in his article titled “Why I urged my friend Chief Justice to apply for leave” (Colombo Telegraph, 24 December 2012).

He says, “I believe that it was in the practice of scientific medicine that humanity perfected the technique of avoiding personal bias and prejudice in the conduct of human affairs.” Of course he is free to have his own ‘beliefs’ that are by definition closely associated with biases and he is obviously bias towards his own discipline, ‘practice of scientific medicine,’ in this instance. It is my understanding (not belief) that the ‘techniques’ of avoiding personal bias and prejudice are highly developed in jurisprudence, law and justice, although jurists might not claim that they have perfected these techniques. There are so much of debates still going on and some of the matters are to do with impeachment processes; political biases in impeachment procedures. Let me add that jurisprudence is not my academic discipline and therefore I don’t have any ‘professional biases’ in making this statement in claiming its advancements.

I cannot pretend to have any knowledge on the practice of scientific medicine either. However, what he has written is supposed to be for the ordinary laymen like me and therefore I am inclined to make the following further observations on his article.

First is that I consider it completely erroneous for him to come to the conclusion that the “practice of medicine has perfected the techniques of avoiding personal bias and prejudice” and he has tried to demonstrated this through his training as a medical practitioner or student. The experience he has related is extremely vague, sketchy and subjective to the core. He has not done any comparison with jurisprudence, psychology or sociology and jurisprudence is the most advance in my opinion on this matter.

Secondly, I don’t see any connection between the conclusion of his article finding fault with the Chief Justice not taking leave irrespective of his advice and the four sections that he has outlined as ‘pre-medical,’ ‘pre-clinical,’ ‘pharmacology,’ and ‘randomization and blinding.’ As far I can understand, avoiding bias or prejudice is more central to the application of justice whether in criminal, civil, human rights, labour, disciplinary or impeachment cases or tribunals than in the case of practicing of medicine. Then how can he assume that it is unknown? All law students are aware of or taught about these matters (whether they practice or not) not to speak of the Chief Justice and other judges.

In the Sri Lankan context, the recent presentation by CV Wigneswaran to the Judicial Services Association is most instructive to read also dealing with many other aspects of the independence of the judiciary. More theoretical as an introduction might be by David Luban, “Laws Blindfold” in Michael Davis and Andrew Stark (eds.), Conflict of Interest in the Professions. It is available on line.

Thirdly, in passing I also like to raise some doubts about what he mentions as the 10 factors affecting the application of medicine quoting a Bennett and a Brown. Although he has mentioned about 10, he has only given 6 factors. As a patient of some acute medical problems, my experience has always been that the medicine that applied to me worked perfectly well irrespective of the doctors or my attitudes under the circumstances. Here he has not talked about blindness but positive attitudes. I am not at all saying these factors are not relevant in the practice of medicine, centrally or marginally. My point is that Prof Fonseka is trying to concoct a medicine or a very rigmarole story perhaps not that relevant in medicine but in politics – politics that he is indulged in at present. If I may use a strong criticism, he is trying to prostitute his professional knowledge for the benefit of a political power scheme to destroy the independence of the judiciary. This is plain and clear.

It is in this context that his concluding paragraph is quite farcical. (My Dear Sir, sorry to say that). There is no question that some of the things that he says are ‘truths’ and ‘home truths.’ He talks about ‘blinding.’ This is rudimentary knowledge. The classical iconography of justice is a goddess, Justitia, equipped with the Sword, the Scales and the Blindfold. To ensure the blindfold, in certain jurisdictions there are direct ban rules. Then there are indirect rules. Then there is discretion that all judges should apply before being part of a bench or hearing a case. Any conflict of interest should be avoided. All these are accepted.

I also cannot completely blame Prof Fonseka for his apparent advice to his friend Chief Justice to apply for leave when her husband was charged for bribery (if this was written then) because I myself initially thought perhaps she could even resign to avoid any possible conflict of interest. The complete background was not clear at that time. But why this article and advice now? Many people also suspect that some of these friendly suggestions to the CJ then were part of a scheme to pressure her to step down or succumb. I am not saying this to Prof Fonseka without knowing the facts. Then the things changed very rapidly. The impeachment was brought in and there were 14 charges and not one. If she had resigned, it could have construed as admission of guilt. The pressure was for her to resign.

Let me ask Prof Fonseka the first question: what he thinks about the whole impeachment motion against the Chief Justice and the impeachment process? It would be useful for the readers if Prof Fonseka expresses his opinion on the whole matter without confining himself to one issue in a devious manner.

As SL Gunasekera and many others who were supporting the government before (even perhaps now) have very clearly expressed there are serious issues of independence of the judiciary and impeachment is only a part of it. I wonder whether these matters of independence of the judiciary also come under Prof Fonseka’s medical training. Whether for example there is any theory to say that the judiciary should organically be a part of the executive like pancreas and something else in biology?

Whatever that be, he should be obliged to comment on those matters of the independence of the judiciary since he has put his finger into the ongoing debate. When there are serious issues of the independence of the judiciary, in my view, the Chief Justice simply cannot step down and wash her hands. That is dereliction of duty as the Chief Justice. Justitia should wear not only the blindfold, but also should hold the sword and the scales. The blindfold also means her resistance to pressure. As she said in her key note address to the Judicial Services Association on 22 December 2012 “the worst judge is not merely one who is deaf; but one also succumbs to pressure.”

Also when there are impeachment charges, any judge should face them. The resignation is not the right way. It may be pleasing to the government, but not good for the judiciary or to the principles of accountability. We need to stop the political culture of ‘cover ups’ in Sri Lanka. Otherwise there is no democratic future. Any conflict of interest in respect of the CJ’s husband’s case should be avoided and it is still possible. The case has not yet commenced and all indications are that it is a framed up trail. In the case of the impeachment, all blindness that Prof Fonseka talks about also should have applied to the inquiry process. But it has not been done for the whole world to see.

This is my last question. The CJ has raised a conflict of interest in the case of two particular members of the PSC, Rajitha Senaratne and Wimal Weerawansa, and both are I believe friends of Prof Fonseka. Applying the same medical principles, I wonder whether Prof Fonseka ever asked them to take leave from the impeachment process?

It would be too strong for me to ask whether Prof Fonseka himself has a conflict of interest, prejudice or bias in commenting on the Chief Justice’s conflict of interest by being a government paid Chairman of the National Authority on Tobacco and Alcohol. This is not however a question.