Colombo Telegraph

Cast The First stone?

By Ravi Perera

Ravi Perera

“He that is without sin among you, let him first cast a stone at her “

Most Sri Lankans first made aware of the news of the impending impeachment motion against the Chief Justice, appointed by this very government only a few years back, would be struck by disbelief. Judges are not removed from office for their integrity or independence. If the Chief Justice is to go, the lack thereof needs to be shown. It cannot be based on a judgment; as such pronouncements are usually made by a bench of judges who are free to act independently in their judicial functions. The Chief Justice is just one among them. Up to now the issues that led to this historical action remain outside of the public domain. As far as the people are concerned, there has been no inquiry into the allegations against her, by the police or any other legitimate investigator.

When impeachment motions were contemplated against Presidents Nixon and later Bill Clinton, the issues were very public, the facts, the various legalities and the ethics involved were widely discussed. In the case of a judge there is no reason why this should not be so. After all, a judge is said to exercise judicial powers on behalf of the public.

On the other hand, there is a sense of satisfaction among the public that however elevated a person, he or she is ultimately responsible to them and when in public office could be called to a code of conduct, based on both legal and moral considerations. After all this  is  a country where the average person has an income of about Rs 15,000 per month, his diet barely sufficient to function effectively, his transport agonizingly uncomfortable, his health services rudimentary and erratic and  the  standard of the education available to his children is  falling rapidly. Meanwhile,   the average politician and some public servants appear   to be living a life of enviable luxury. These so called servants of the people travel in chauffer driven limousines, sometimes in convoys. Their children invariably study in foreign schools and universities. For medical attention it is always Singapore or some other Developed country like the US or Australia for them.

One strange thing about our country is that no one, including the judiciary, has asked these persons how they could afford all this luxury. While drawing fairly basic government salaries these so called servants of the people are maintaining life styles which can only be enjoyed by the very wealthy. It is now considered an impolite thing to raise questions about wealth accumulation by such people and could even amount to anti-national conduct.

Coming back to the impeachment motion,   it is obvious that in any country, even   the contemplation of impeaching the head of the judiciary is a serious matter.  Apart from the constitutional and legal   issues which are inevitable, such a move is replete with political and social implications with the potential for   far reaching repercussions. It is not a course of action to be taken on a whim or impelled by partisan considerations. To have any credibility, the alleged wrongdoing by the judge must be clear and unambiguous and on a reasonable basis such a motion   ought to be able to command even bi-partisan support in the legislature, although constitutionally    it is not so required.

Mere dissention with government policy does not amount to judicial misconduct. The role that the judiciary is called upon to play often impels it to take a stand or express views which may not win the favour of the government of the day. If the rule of law is to mean something, the courts   cannot bend to every wish of the government. A government is elected by a legal process and has legitimacy only as long as it operates within the confines of the law. If governments were to ignore the law and act as they wish, that country could soon descend into anarchy. By and large it is the function of the judges to interpret the law.

In practice, the power of the State is divided by definition into three discernible arms, the Executive, Legislature and the Judiciary. Very often the distinction between the Executive and the Legislature is blurred because control of both these institutions may well end up in the same hands. For example today in Sri Lanka the same party, in the form of the PA, controls both the Executive and the Legislature. Given the prevalent culture of the country it maybe more accurate to say that the Rajapakses dominate both these institutions.  Sometime back when the UNP formed the majority in the Parliament, Chandrika Bandaranaike who was then President had to cope with a situation of a recalcitrant legislature.  In the United States we often see the President having to work with a Congress dominated by the opposite political party. Handling such situations call for much political maturity.

The Judiciary on the other hand, is an institution whose legitimacy depends very much on its perceived independence. Whether the case is between the State and a citizen or between two citizens, the courts must judge evenly and independently. The heat of changing passions of day to day politics has no bearing on the process of judging. The judiciary is an arm of the State functioning   independently, on behalf of the people.

It is also a sad fact that we cannot ignore that from about two decades ago our judiciary and other legal offices began to change their fundamental character. Not that there were no political and compliant judges before. But around about that time a few leading individuals began to even legitimize such conduct. They argued that it was the function of these offices to toe the line. It was their function to exonerate friends of the government while punishing their opponents.

Such thinking invariably led to more grotesque manifestations of patronage of the judges by the political establishment. It became acceptable to plead for jobs and perks for spouses and children. Even in oath takings privileges were accorded to the kith and kin of politicians.   Judges who were said to be holding the scales of justice evenly between the State and a citizen, on retirement walked into Ambassadorships and sinecures.

The people looking for inspiration for good governance and even personal conduct were left confused and directionless. Institutions lost their value and now are merely functional without the spirit and glamour that actuated them. Institutions led by such persons remind us of the famous quotation from Jonathan Swift, particularly if we swap the word “riches” for “office”.

“If Heaven had looked upon riches to be a valuable thing, it would not have given them to such a scoundrel “Jonathan Swift (1667-1734)

*The writer is an Attorney-at Law and a freelance contributor to several newspapers/magazines

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