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.