By Ravi Perera –
“To every subject in this land, no matter how powerful, I would use Thomas Fuller’s words over 300 years ago: “Be you never so high, the law is above you.” Lord Denning MR in Gouriet v Union of Post office Workers (1977) 1 QB 729,761-762
The seven odd Billion humans inhabiting this planet (and surely all other living beings) would have given a collective sigh of relief as the sun set on the 21 of December. Luckily for us, the Mayans who had predicted the end of it all on that day seem to have got their calculations wrong. Not too surprising, when we consider the fact that they could not even predict the coming of the Spanish (and other European races) that had such a fatal impact on their out-dated show in what is today referred to as Central America. It now seems that in the excitement of Christmas celebrations the much talked about ending of the world will soon recede into insignificances , another doomsday prophesy consigned to the bin of forgotten things in the endless cycle of life. Strangely, while most rejoice at the new lease of life, some are apparently disappointed that the apocalypse did not happen. Apparently they even witnessed the harbingers of the coming doom, strange appearances in the sky, rains of fish and the sea turning yellow. When it comes to the human psychology, nothing is impossible it seems.
Although the Mayan apocalypse failed to show its face, in our little Sri Lanka, particularly its constitutional/legal landscape resembles a disaster field. Once stable and seemingly immaculate legislative and judicial institutions lie low their reputations dented grievously. In the face of the relentless assertion of power by the Executive, the only role for the legislature/judiciary it appears is one that of abject compliance. As presently constituted, from the legislature the President can expect only an admiring chorus of support, whatever his action. But since of late, our judiciary, confounded in recent times by the ethos of the Chief Justices Sarath and Asoka Silva leadership, had begun to show signs of straining at the leash.
Theirs was an era when judges in the superior courts took pride in alluding to personal friendships with the Executive/Legislature, creature comforts including limousines were negotiated, various benefits were obtained for spouses and children, and on retirement even rewarded with sinecures. All this was going on while they heard cases deeply political. It was evident that the third arm of the government, the judiciary, chose to adopt the same values and methods as of the other two. Even under the present Chief Justice as recent as six months back there were no signs of a transformation of this culture. On the contrary, we watched in deep despair when her husband was appointed by the Executive to a plum government job. Any hopes of a judicial challenge to untrammeled greed for power were dashed when the Supreme Court led by Shirani Bandaranayke let the 18 Amendment to the Constitution pass without a murmur. Last year when the President’s son was sworn-in as a lawyer, not only was the President, quite understandably accommodated ceremoniously, but privileges were extended to the young lawyer as well. Thereby, the judiciary acknowledged the current (unwritten) political dictum that the family is special and above the rest. Like in George Orwell’s famous fable the “Animal Farm”, having supped together for long, it was hard to distinguish between man and pig. The choice of pigs as the main characters in the Orwell story could not be more poignant.
The depth of our discontent was reflected even at the meeting of the Bar Association which was convened to pass two resolutions protesting the impeachment motion against the Chief Justice. While it was obvious that the resolutions had the overwhelming support of the legal fraternity, the conveners decided ,at the spur of the moment, not to take a vote ,instead opting for a show of hands, at the best of times a doubtful method. They argued that taking a vote was cumbersome, there was a possibility of an attempt to sabotage and also that the policy of the Bar Association was to arrive at an unanimous view. It is obvious that in the circumstances prevailing that day the latter (unanimity) was out of the question. We can only observe that if a government were to take the same attitude of avoiding an actual vote or were to demand unanimity of opinion, it would surely be called a dictatorship. In a situation where the government simply could not win the argument on the morality of the impeachment procedure, the Bar Association was running the risk of losing its moral ascendency by resorting to a kind of sophism.
The President’s statement that he would consult an independent committee before he acts on a recommendation (a vote) from the Parliament to impeach the Chief Justice has further confounded an already confused situation. If the Parliament is the proper forum for an impeachment motion, and if the that inquiry was held in an acceptable manner, there is no reason to have further consultations with any other body. The mere idea of an independent committee suggests that even in the mind of the President there are doubts about the correctness of the impeachment hearings. In any event, every right thinking citizen in this country, aware of our political culture, will surely have doubts about the independence and the impartiality of those hearings. Whether a committee appointed by the President could correct that perception is a moot point.
Can the President rectify the defects in the impeachment procedure by appointing a so called independent committee? To start with, the President who will appoint the Committee is a major player in the whole impeachment process and therefore is an interested party. Thus, the committee will be appointed by one party in this dispute. It is not clear the basis on which the members are to be appointed to this committee. We do not know of the arrangements which would ensure the independence of the committee members. Is that person known to the President in a personal way? Has he got a spouse or a child who wants a favour from the government sometime in the future? Going by recent happenings, the potential to compromise the integrity of such a committee is endless.
The truth is that all the Kings horses, men or committees cannot put Humpty Dumpty together again now. Before the whole world our legislature has shown its true nature. By arrogating to itself the right to be both accuser and the judge it displayed scant regard for the concept of justice. The hurried impeachment motion launched out of the blues, against a judge who had begun to show signs of independence, offends our sense of fair play. On the other hand, the public airing of the happenings in the highest courts of this country cannot but diminish their standing. Many of the judges have been shown to be deeply flawed personalities with an eye to the main chance. It is clear that their appreciation of the judicial role was very faulty.
Given the culture and the character of the leading personalities of this saga we can safely predict the opposite of the things they promise. Therefore the chances are; that there would be no independent committee, the Chief Justice would be impeached at the will of the President and then replaced by a more “reliable” judge. It is also unlikely that the legal fraternity would take the battle to a finish.
A government so inured to total subjugation is unlikely to respond to faint protests. Short of a total and indefinite boycott of all courts, nothing else will register.
We must not forget what is at stake here; “be you never so high, the law is above you”. That is the meaning of the rule of law.
But in the end, it is unlikely that anything we do could correct a system so fundamentally rotten. There is hope for the better only if the system carries within it the seeds for a resurgence and renewal. Presently, neither our institutions nor their leaders give us that hope.
That being the case perhaps to predict the final act we will have to turn to TS Eliot who wrote “This is the way the world ends, not with a bang but a whimper”