By Ravi Perera –

Ravi Perera

“I have an entry Visa to the United States valid for 5 years!”

“That is good; I used to value such things until I got my British Passport. Now in any country I get my Visa on arrival”

In a life reduced to a grim struggle for social recognition and your general expectation is to be denied such, any affirmation of a hierarchical standing is to be grasped at fervently. Even if it is only a Visa to enter a foreign country, there is an implied conferring of a status on the recipient of the Visa. He has been elevated a few notches higher from the unctuous pit.

A person coming from a culture with a more egalitarian attitude cannot but be appalled by the determined stratification which is so apparent here. We seemingly cannot perceive of a world without such a hierarchy.  Your standing in the pecking order will determine everything. Even if you are paying for it, say at a restaurant, the service received will depend very much on the social standing of each customer. Apparently the Waiters in Sri Lankan restaurants, whatever their mental deficiencies, have eyes well trained at assessing the social standing of the customer walking in. The size of the entourage/bodyguard, the jewellery on his person, the charms wrapped around  his  wrist, the confident demeanour  of the customer etc are all, not so subtle, hints as  to his  status. Of course, unless the Bill is settled by a third party,   it is most unlikely that the VIP’s tip would be lavish, if any. That will not be keeping with the practices here. But the Waiter is not unduly concerned. His reward is the opportunity to serve a man of status, be in his proximity, making of the connection.

Where you need not pay for the service, for instance at a Police Station, hierarchy is everything. The average citizen who goes to a Police station, say to make a complaint, will be just brushed aside if a person considered higher in the pecking order comes by.    For these uniformed officers of the law what matter is the political/social hierarchy, never mind the assumption that law enforcement is an objective impartial exercise. The poor Policeman simply cannot conceive of a different world. In his mind political power is all that matters. The law and regulations come only a distant second, a kind of alien embarrassment.

In a society such as ours it is not surprising that two very different institutions, the legislature and the judiciary   are  locked in a battle today  to decide as to who is “superior” . This is not a line of thinking that one is likely to come across in more developed societies. Is the President of the United States “superior” to the Congress or its Supreme Court? In Britain, is the Queen superior to the Parliament or vice versa? One never comes across such inanities in those countries. Can institutions that have such different functions to perform, be compared in order to determine a hierarchal superiority?

Essentially, the Parliament’s job is to legislate while we expect the judiciary to determine and interpret those laws.  If courts are to function independently, they must have the freedom to act without fear of favour. Surely, we cannot expect that from a body which is subordinate to another institution? In advanced cultures, these institutions function very well without having to decide as to which institution is “superior”. In the well known Monika Lewinsky case the then President Bill Clinton’s denial of involvement   was given the lie as a result of the  investigations by the Federal Bureau of Investigations(FBI) which confirmed the seminal  stains on a dress worn by Ms. Lewinsky. How did they do that when the FBI is, in the Sri Lankan way of looking at things, “inferior” to the Chief Executive, the President of the United States?

It is unlikely that our courts would be free of this longing for a higher social status. In the countries where these legal institutions originated, it is understood that three lawyers play the leading roles in a dispute before court, two in the form of representing the views of the opposing parties while the third takes the role of an umpire or the judge. It is a collective effort where the three lawyers play an appointed role in order to find a just solution. In cultures where dialectical thinking is deeply embedded, this role playing is easily grasped. But in the Sri Lankan way of thinking it could well be that the judge not only sits on a dais but may be even playing a higher, a kind of a “divine” role. The parties have to approach him as supplicants. An outsider will not fail to notice the unmistakable air of imperfectly understood concepts and the awkward mimicking of alien cultures in the whole exercise.

If we were to look at our institutions, not to determine which is superior,   but their actual manifestations the picture that emerges is not pretty. After the last presidential elections   we saw the main challenger for the Presidency, former army Commander Sarath Fonseka, imprisoned on certain charges which were instituted after his defeat at the elections. According to the charges he was not a fit and proper person to have held the position of army commander.  But he was not removed from the position   of army commander   for any misconduct but only retired to contest the elections. The charges and the prosecutions followed his  defeat at the elections.  In the case of the Chief Justice too what she or her husband did was not important until she fell afoul of the   President.

On and off, but particularly in the last 10 years or so, we have observed several high ranking judges obtaining personal benefits from politicians. The case of the Chief justice’s husband is now very much in the public domain. It is also the general view that our higher courts are inclined to go with the political power in ascendency at the time. That is the judiciary. If we look at the legislature, only the other day we read in local newspapers  the  cost of meals at the parliament canteen ( Breakfast Rs 3000 and lunch Rs 5000), but the members pay only an absurdly subsidized price of  Rs 200 a meal ! Apparently some of our Parliamentarians have expensive tastes, ordering delicacies such as Australian Honey, Golden Syrup and Green Tea. If we were to determine superiority on the basis of foods eaten, our parliamentarians are far superior to the average person in this country. No wonder that every MP who is a father wants his son to follow in his footsteps!

It goes without saying that the concepts underlying   an elected presidency, a parliament and a permanent   judiciary, all of which we have adopted now, evolved in very different cultures. These concepts as they now function were not created by the genius of Sri Lankans.  They came to us only because of nearly five hundred years of colonial experiences. We operate under the assumption  that these essentially alien concepts/ institutions can be  easily replanted in  a very different  soil, and  notwithstanding the obvious incongruities in the character make up in the receiving culture, the same results obtained.

When the imperial powers withdrew in 1948 the subjugated, rather the elite among them, took over. Inevitably, the new elites came to be the     “excellencies”,” lordships”,” honourables” or at the least the “sirs” in the new order.  But in   the reality we confront now the institutions we have traditionally associated with those titles operate very differently. The name of the institutions seems a mere    façade to hide a very different, and a sorry reality. In the hands of men with very different outlooks, upbringings and education such institutions have become a farce, a tragedy or perhaps even a tragicomedy.

It goes without saying that in a true democracy, everybody, the president, the parliamentarians and the judges would be subject to impartial investigations if warranted, and if so required, removed from office after a due process. But such processes to have any legitimacy must be supported by independent investigative and prosecutorial organs and finally a judicial process which is independent, impartial and fair. These are all   essential parts of the due process of the administration of justice.

Whatever the allegations against the Chief Justice, it is in our interest to see that justice is done to her in an acceptable manner. Any citizen is entitled to justice under the rule of law. No person should be subject to a persecution merely because it is politically expedient.

But in the last analysis, the three institutions concerned, the presidency, the legislature and executive cannot help but reflect the sum of our culture, values and outlook. Ultimately, this whole process may not determine which institution is “superior” but rather show the actual quality of a people who are in fact represented in them.