4 December, 2020

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Impeachment: Ethos, Ethics And The Common Good

By Kumudu Kusum Kumara

Kumudu Kusum Kumara

Pradeep Jeganathan’s intervention in the ongoing discussions on the Impeachment (“Impeachment, CJ Sir Alan Rose and Dudley Senanayake: An Ethos of Ethics?” December 20, 2012 Colombo Telegraph,) has brought to focus the ethical dimension involved in the issue.

Jeganathan narrates the story of Dudley Senanayake being appointed to succeed D. S. Senanayake (D.S.) as the Prime Minister of Sri Lanka on the occasion of the latter’s untimely demise. The decision made by D.S., first Prime Minister of independent Sri Lanka to appoint Dudley over Sir John Kotalawala is reported to have been made in connivance with the Governor General Lord Soulbury in a deal made for mutual benefits. Apparently it was Sir John  who was the most qualified for succession to the post in terms of the positions he held in the ruling party in and out of parliament.  Jeganathan suggests that the above appointment as well as the impeachment against current Chief Justice Dr. Shirani Bandaranayake are both born out of our collective lack of an “ethos of ethics”.

Let us pause here for a moment to reflect on the above story. Is it possible that D.S. following his conservative ethos decided that Dudley despite being his son was a better man to hold the post of prime minister? If it was the reason, would D.S. have been vindicated in his decision when the performance of Dudley and Sir John, who became the prime minister at a later point, was to be compared? In other words, did D.S. (and Lord Soulbury) have their own moral justifications for their actions that fit in with their own respective understandings of politics? Since I am not familiar with the historical material Jeganathan refers to, and I don’t have access to any other relevant sources at this point, I can only raise these questions for discussion.

The colonial masters and the leading family of the local ruling elite may have conspired to spurn fairness in this instance, choosing loyalty instead, as Jeganathan himself suggests. Similarly, the decision to appoint Dr. Shirani Bandaranayake to the Supreme Court and later as the Chief Justice is marred by issues of loyalty. Considering loyalty in appointing persons to public office seems to be a tradition in Sri Lankan politics and elsewhere as well, a leaf taken out of Machiavelli’s The Prince rather than Aristotle’s Ethics.

Even though loyalty is usually seen as a virtue, it sometimes runs into problems when put into practice. Consider for example, the course of events that led Caesar to utter “Et tu, Brute?” What we understand here is that the loyalty Caesar expected Brutus to have for him as close friend came into conflict with the latter’s loyalty to his country. Conversely, in the case of Antigone, she chose to uphold filial loyalty over her allegiance to the state. If loyalty is to be a virtue, one must be able to exercise loyalty within the bounds of moral judgement. Blind loyalty as well as blind patriotism can turn out to be vices rather than virtues. Indeed, both patriotism and loyalty can blind us to issues of justice.

What Jeganathan reminds us in his narrative is that our vices are inherited from colonialism and the elite that benefited from it, and thus from modernity itself. But then as the reference to Kings Rajasingha II and Kakkille tells us, it is not entirely an issue of modernity either. If we look at pre modern history, I believe that we had the opportunity to be influenced by Dharmishta kings as well, and of course the Buddha’s doctrine. When Jeganathan says that “we have clearly lost” the ethos of ethics he is not merely referring to the loss of fairness, but more to the general loss of a habituation that is based upon moral virtues.

Jeganathan’s comment that “it is sobering to wonder if we ever had” an ethos of ethics, appears to reflect a frustration many of us have with regard to the manner in which we have been conducting affairs in our society. It is not that we have lacked in a sense of morality, a sense of right and wrong. The question Jeganathan raises is whether we as a collective have been practising the moral virtues we have inherited from our various traditions.

On a positive note, I would think that the fact that at present there is a public debate in society over the attempt to impeach the Chief Justice alone is evident of the fact that we have not completely lost our sense of the common good. There have been other instances in recent times where people have come together to fight for this common good, such as the campaign waged by university teachers and students to protect state sector education. However, it is possible at this juncture that we are on the verge of losing the battle. We seem to have chosen to ignore the need to inculcate in our children and in ourselves the notion of the collective good, or rather have accepted competing as individuals for self good in the market place as the foremost virtue.

There is an added factor which makes people think that the loss of a sense of ethicality is a recent phenomenon.  That is, political leaders are increasingly using the public support they get in elections to change the basic rules on which society is constituted, and they do so without duly consulting the public. They resort to this when they find that the existing rules inhibit their grand plans for major social reform. For example, J.R. Jayewardene found the constitution of the country a political impediment to his plans to modernise Sri Lankan economy and society. Hence he changed it to suit his developmentalist plans that were branded with the slogan, Dharmishta Samajaya. Going a step forward, President Mahinda Rajapaksa’s regime has openly declared war against laws that ‘inhibit the advancement of people’s aspirations for development’ which the Mahinda Chinthanaya is supposed to manifest.

Laws are codifications of collective understandings of fairness and justice. Jeganathan suggests that habit, custom and manner matter more than laws in the preservation of ethicality in a society. They are the preserve of a society that is settled in its ways of life. A regime representing newly emerged social groups on a rampage to consolidate its grip on polity and economy seems to find itself not only fighting existing laws but also trying its best to disregard habit, custom and manner. In short, it seems to think that these are all hindrances that need to be disposed of.

A constitution can erect a protective wall for citizens of the republic. However, a nation needs a vibrant public sphere to keep its sense of ethicality alive. Thus, if anything the public interest generated around the attempt to impeach the Chief Justice is an occasion to revive the public realm once more by elevating the discussion to the ethical plane. In doing so, we need to go beyond the issues of due processes, legality and constitutionality which the Chief Justice should be entitled to anyway.

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Latest comments

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    Thank you for the thoughtful engagement Kumudu.

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      You’re welcome Pradeep,

      it was a pleasure to engage with your thoughts.

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    Constitution, Laws and Ethics should be grounded on the more basic moral laws of good and bad. The first and foremost basic law is the right to live and the equality of all human beings. Constitution and laws may be changed but cannot contradict this basic principle of human existance.

    Constitution has to guarantee this fundamental right. Hence the safeguards, checks and balances, seperation of powers etc. The attempts by the Govt and the Executive to assume unlimited powers and govern the country according to his conscience runs counter to the rights of the people of this country. Parliment has no right to pass laws and compromise the basic rights of the people of the country.

    In sum all that has being done is to subvert the rights of the people and compromise their freedom and independence.

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    I will frame the subject under discussion in terms of ‘ Dharma’ (righteousness) , a concept that underlines Hinduism and Buddhism. To illustrate the point I recall a sub-story from within the Mahabharatha.

    Duryodana (Kaurawa prince ) and Dharman ( Pandu prince) visited Lord Krishna to seek his help on the eve of the Kurukshetra war. They found Lord Krishna asleep. Dharman stood at Krishna’ s feet respectfully, whereas Duryodana sat at the head of bed, rather arrogantly. Krishna on waking noticed Duryodana first and after inquiries regarding the intent of their visit, gave Duryodana, whom he had seen first, the first choice between his army and ‘Himself’. Duryodana chose Krishna’s army and was granted his wish. Duryodana was overjoyed. Dharman, said that he needed only Lord Krishna- the embodiment of Dharma- on his side. In the Great War that signalled the beginning of the ‘Kali Yuga’, the Pandawas won, because they had ‘Dharma ‘-righteousness- on their side!

    Ethics is a strand that is within the much larger concept of ‘ Dharma’ and is interwoven with our religious and cultural heritage. Further, ‘ Dharma’ has its long term dynamics and asserts itself eventually with unforeseen consequences to those who breech it. There is no escape from the judgement of ‘ Dharma’. This is the lesson of history.

    Dr.Rajasingham Narendran

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    A correction:

    It was Dharman, who Lord Krishna saw first and was offered the choice. He chose Lord Krishna over his army. Duryodana was overjoyed that he had Krishna’s army.

    Regret the error.

    Dr.R.N

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    Just did a reply to you Dr Jeganathan. Sorry for inserting this link.
    http://quantumchecks.blogspot.co.uk/
    Can’t copy all. This is relevant to original article. Not to Kumudu Kumara’s.

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    Ajit, I replied on your blog. Ty for engaging.

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    I agree with Kumudu Kusum that Sri Lankans are still lucky that ethical thinking is not completely lost in today’s context in SL. There’s still a debate to come – a great opportunity for dialogue at the highest level…That’s the beauty of it!

    But talking about the ugly side of things, inspite of Kumudu Kusum’s great expectations which we all share, there’s a sense of desperation creeping in… because of the intransigent, obstinate attitude we have observed in successive SL governments in the past and certainly in the present regime. That is, refusing to become amenable, to good counsel either from its own advisors or from outsiders, I mean, the the people of Sri Lanka including their religious leaders. This lack of accommodation has been the bane of Sri Lankan politics since independence…

    There seems to be a misplaced fear among the rulers that any accommodation or even a fair debate would entail giving up of their positions of power and influence; hence, suicidal to the ruling party.

    They have no faith in any dialogue or open communication with dissidents, the very thing that can open new windows for common and united action towards lasting peace and prosperity for the greater good of the Republic.

    Instead, the present regime is obviously engaged in how to rule by the letter of the law and not by its spirit and utilize every possible loop-hole in the Laws or in the Constitution to justify its blatantly wrongful actions… Wrongful actions and crimes committed by previous regimes are often quoted as ‘sacrosanct precedents’ that when repeated, give a binding force akin to a legal sanction to do crimes and engage in all kinds of corrupt behaviour… as if two wrongs would make a thing right….

    We have seen too much of it in the recent past to place any firm trust in the present regime or in the Opposition to do what’s right and proper in these crucial times when the Nation is buffeted by an unprecedented loss of image and unwarrented humiliations globally that threaten its stability and its reconstuction effort after a devastating internal war.

    It’s at crucial moments like this, that we need, not politicians but Statesmen… putting all party affiliations, pettiness and greed for power aside, it’s time for the Ruling Party to take a holiday and reflect on the formation of a National Government drawn from all sources with a small Cabinet to make the Sovereign Parliament and the Government work along with an Independent Judiciary and an Independent Public Service; each political party holding at bay, all representative demands for rights and privileges and grievances etc.. until such time when at least a modicum of visible good governance can be achieved…through a common resolve.

    Why? Because, this present damned system of Government simply doesn’t work any more!

    There’s only one person who can initiate this miracle of epic proportions to come. And that is, the Executive President of Sri Lanka and none else! Can he hold the entire nation to ransom and blame others any longer????

    But there’s an insurmountable problem: that is, a typical Sinhala weakness! Identified as Foolish Arrogance! Sheer inability to say, I have erred and I am sorry! Admitting one’s fault…, In other words, A spirit of humility..!

    Yes, this Sinhala Buddhist Weakness is an appalling tell-tale tragedy for a Nation of Buddhists along with their venerable monks, that worships Buddha daily or many times a day, reciting the lovely prayer that should trigger instant change in the outlook of anyone who recites its words in faith….

    “Kayena vaca cittena – pamadena maya katam
    Accayam khama me bhante – bhuripanna Tathagata!”

    “If by deeds, words, or thought or by being heedless,
    I have done anything wrong,
    Forgive me O My Lord, Buddha the Enlightened One of great wisdom!”

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      Dear Aloy Perera

      Thank you for your comments.

      You say “I agree with Kumudu Kusum that Sri Lankans are still lucky that ethical thinking is not completely lost in today’s context in SL. There’s still a debate to come – a great opportunity for dialogue at the highest level…That’s the beauty of it!”
      “ But talking about the ugly side of things, inspite of Kumudu Kusum’s great expectations which…”

      I am not sure whether we have any other option other than trying to influence, what is happening, in however small measure.

      Remember, I said “However, it is possible at this juncture that we are on the verge of losing the battle.”

      I also hope against hope that the sense of the common good embedded in our society will finally prevail upon. Whether that can be called a great expectation, I am not sure. I however, don’t have easy solutions to offer to overcome the situation.

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    Thanks Jeganathan. I saw it and replied. Thanks for writing for both you and Kumudu Kusum. Good articles and good comments as well.

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    Sri lanka since independance 1948 ruling class of bourgeresios has dual nature of in power politics.The road of Sri lanka democratic revolution in the form of constitutional -Parlimentry mode of struggle.The history of colonial rule of British administration and managemant since 1833 initiate by enlargeing political power thorugh by expanding Institutional authorities. Such as the State power discharge by Executive, legislative and Judiciary of three component.In 1948 evoluntry prosess of Parliminrty system of government basically served for vested interest of Imperialist headed colonial of depeand political-economy-social order of Sri Lanka.The comparador-bourgeoisie of UNP as political party who had been rule 33 years since 1948 out of 64 years since independance.
    This is kind of coward of bourgeoisie of UNP surrendered our Independence Judiciary and RULE OF LAW and soverginity suited to Imperalist master Globe principle interest.All sovereignity of Judiciary come under the subject rule of “independance Judiciary of Compardor-Bourgeoisie” class of RULE OF LAW.So-called continuation of such Parlimentry power of constitutional had been change by JRJ-UNP and replace new Constuition in 1978.
    While 33 years in State power UNP in they made COMPOSUR alliance with colonial master on RULE OF LAW and Independence of Judiciary according local -bourgeoisie political-econmy-social vested interest.They wan’t be any problem of arise of Independence of Judiciary or Rule of law when UNP in Power, OR from every nook and corner of Judges or Lawyers or Internationl Law Assosiation or Human Rights of internantional communities as well.Both vested interest of power of Hegemony and Comprador-bourgeoisie are Rule Of Law is identical.
    Problem of war aganist terrorist of LTTE- War and Massacare of JVP terrorism 1971 and 1988/89 and Ethenic clamp down by UNP in 1977,1979 1981 and 1983, Judiciary Indepanedce had been undermine by UNP NOT been address or rise issue by local Legal community or Globale power bolcks at all. The reason is UNP running dogs of hegemony interest and against public interst of RULE OF LAW and Independance of Judiciary of our land.
    UNP agenda is similar to hegemony power to Undermine Rule of Sovereginity nation and REMAIN Sri lankan PEOPLE as underdevloped and weak and backward capitalism order in our nation.

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