22 May, 2019

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Why Only Judges Should Judge?

By  Basil Fernando

Basil Fernando

The Parliamentary Select Committee‘s inquiry has raised the issue of the politicians being judges. Some have even said that the politicians have a better right to judge because they are elected representatives of the people whereas the judges are not.

The people elect their representatives for particular purposes. By the very nature of judging guilt and innocence that is not a matter that would depend on people’s consent even if a hundred percent of the electors declared a guilty person innocent or an innocent person guilty, their verdict do not represent justice.

This is not a difficult problem to understand. We entrust only qualified medical doctors to deal with the affairs of illness and healthcare. It is only qualified and experienced surgeons that we entrust with the duty of conducting surgery. This list can be long in terms of various other professions.

In each of these the efficacy depends on “a judgment made” on the basis of evaluation of factual circumstances and established principles that belongs to each of the branches of such professions. Where no such knowledge of those principles exists there cannot be a valid judgment within that field.

Among all subjects that humans have to deal with the most difficult are the problems of justice. Justice means fairness as John Rawls so comprehensively explained. Dealing with fairness is perhaps the most complicated and difficult of all categories of thinking and arriving at conclusions.

This may be illustrated by an example. Between 1975 and 1979 Pol Pot ruled in Cambodia, during which time, one-seventh of the population of that country was destroyed. Among them was almost the entirety of the educated sections of the society. Among all other professionals lawyers and judges were also completely wiped out.

Between 1980 and 1989 there was the period of trying to rebuild Cambodia out of the tremendous and indescribable destruction that was caused in the past. Much of the rebuilding took place under the guidance of the Vietnamese advisors. It is they who built the new administrative structure, though at a most rudimentary level. The biggest obstacle they had for rebuilding of the structure was the absence of trained human resources.

Where this was most manifest was when an attempt was made to create some form of a court system. It was an elementary dispute settlement system and not a formal justice system. However, even to do that there were no educated group of persons. People were randomly selected mostly by the skills they have shown in party work to works as “judges” in the new setup.

When the UN Transitional Authority started in 1992, to prepare the elections for 1993 May, one of the major problems that were identified was the absence of the justice sector. The UN and the international agencies tried to conduct training programmes for “the judges.” In one such programme where many “judges” attended was to last for two weeks and was attended by two internationally renowned judges, one from India and the other from Australia.

After the second day of the sessions, “the judges” requested that they needed special sessions where they want to raise some questions and it was accordingly arranged. During this meeting Cambodian “judges” asked the international experts what they are proposing to achieve by this training programme to which the international experts replied that they were trying to help them to be trained as judges. The Cambodian “judges” in return asked how long does it take in other countries to make a judge. The international experts replied with the details of legal education, followed by periods of actual practice of law and thereafter the selection process to become judges and the gradual process of learning from being a lower court judges to ascend to various steps in the judicial ladder, which in each case took many years. The Cambodian “judges” then asked the experts, whether they thought it is possible to give that training to them in two weeks. Thus exposing the ridiculousness of the situation.

Judging in a judicial sense involves dealing with the problems of truth without consideration for anything else. Acting without consideration for anything else, one of the most difficult endeavours for humans. In normal circumstances, people think of so many things when dealing with any particular thing. People bring into their judgments the problems about their personal ambitions, expectations and hopes, problems of their families, of those relating to their properties and other issues concerning with prestige, reputation and the like. A judge alone is expected to completely disregard all such matters in dealing with the questions of guilt or innocence of persons they are judging.

A politician is by the very nature a person who cannot divorce his political interest from his judgments. In fact a politician is a person who has internalised abilities to turn everything into a political advantage. What votes he would gain or lose, the implications of that he does has on the political party he belongs to and the problems of power are the maters that the politicians mind deal with all the time. A politician simply cannot make judgements, which could have disastrous impacts on the interest of his political party and his own political interest.

Thus when the politicians sit in judgment on issues on which they have a deep interest such for example as the outcome of this inquiry into the Chief Justice‘s affair there is no possibility at all of such politicians being able to deal with the intricate problems of fairness which is the essence of justice.

A nation that is incapable of ensuring of ensuring a process of justice is a society in great peril for no single case is case only about the persons involved. The standards of justice affecting each case, affects the entire society. And this is even more so when obvious matters of national interest such as the case of the Chief Justice is involved. If such an activity is done with careless disregard for basic issues of fairness, the society as a whole will have to pay a huge price for the absence of justice.

Read more about the Impeachment against Chief Justice here

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Latest comments

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    mr basil
    please show, any representative elected by the people?.
    all those so called people’s representatives are vote thieves, who applied to every party forcing and showing their money and thuggery.

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    It is ironic that the Chief Justice is being judged by people who are politically aligned. While and a few are nominal non practicing lawyers, others lack even a proper education.

    The PSC has been loaded 7:4 against the CJ. Still parliment is persisting with this sham trial assuming judicial powers. What can be discerned by even an ordinary person is not evident to these fools.

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    If according to the Constitution, it requires a PSC to function a panel of 11 members, 7 from Govt. and 4 from the Opposition itself is a Travesty of Justice. I believe the Panel should have equal number from Govt. and the Opposition. Otherwise there will be definitely a miscarriage of Justice as we are about to witness. A case for the Law makers to bring in an Amendment to rectify this annomaly.

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    We are going ‘down the pallama’ in ethics and morals since we got independence. JR’s Constitution was a great step in this direction and Mahinda’s 18th Amendment was the coup de grâce. This is neither Nationalistic nor ‘Dharmista’. As a country that values Buddha’s teachings, we should speak up for the treasured value of justice that forms the backbone of any nation, starting from the top institution.

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    Mr. Basil Fernando if you are so much concern about justice why don’t you explain all what is “house of lords”? and why commonwelth courts are still bound by the decisions made by House of lords?

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    The people need be educated, knowledge is power. We need to know the real politics at home and abroad. If we only educate ourselves about the local crooks, we may fooled by the foreigners.

    The Western Countries are committing crimes against the developing countries, but the developing countries’ leaders are committing crimes against their own people. The crimes committed by the Westerners are huge, but it seems lesser crimes, because when we commit crimes against our own people it will look more uglier and evil than Westerners’ crimes. The Westerners are well aware of this fact, and playing their cards accordingly. We can’t compare the Westerners’ crimes in Iraq and Afghanistan with the Sri Lankans’ crimes. Sri lankans have been committing crimes against their own people since 1948. We must steer the country into the right path, educate the Sri lankans to respect and value their own people, this is the only way to counterattack the Westerners’ smart game.

    Sri Lankans have been suffering since 1948. Now is the time to get the country from the corrupt and foolish politicians. Sri Lankan’s deserve better, the Sri Lankans have removed the unelected terrorists, now is the time to remove the elected (or self elected) terrorists. The country is halfway through to its freedom. I believe the Sri Lankans intellectuals have the ability to remove the Rajapaksa regime. Now is the time to remove the leaders who rip off their motherland, enough is enough. The corrupted, self-centered, and ignored politicians had the country since 1948. Now is the time to get it back. The Sinhalese people are starting to wake-up. I really do not believe the Rajapaksa regime can fool the Sinhalese for decades as the LTTE fooled the Tamils. The Rajapaksa regime is fooling the Sinhalese that Sri Lanks is going to be the wonder of Asia and knowledge hub, as the LTTE fooled the Tamils that they will get Eelam. We all know that Sri Lanka has the highest percentage of brain drain in Asia, currently the education and justice system are going down. This proves Sri Lanka will never become the wonder of Asia or knowledge hub of Asia. The Rajapaksa regime is demonising the Westerners and Sri lankan diaspora to cover-up its failures. The Westerners are only 8% of the world population, therefore the Westerners will do their best to divide others to rule the world. Having said that, the West has improved a lot in civilisation (at least the westerners have evolved enough to respect and value their own people). There are many things we can learn from the Westerners. We need leaders who can think and act perspectivally, not like robots with inability to think.

    The UNP member said to the Sunday Observer that “the United National Party had governed Sri Lanka for over 30 years since Independence in different terms and led by a number of leaders. It was a formidable political force founded by D.S. Senanayake in 1946 with the support of all community leaders of yesteryear.”
    I disagree with the UNP. The UNP has ruled Sri Lanka for more than 30 years, but did not govern. If it has govern the country the Tamils would not had fallen into India’s trick and took up arms against the government. I really believe that now is the time to create a new political party and remove the old mindset and ideology. The SLFP and UNP have proved for decades that they do not have the ability to govern. If the UNP got elected again, they will bring the old mindset and ideology, which has been unproductive and useless for decades. Time for the Sri Lankan intellectuals to start a new political party and remove the foolish, useless and unproductive leaders from the power.

    Conclusion: If you are well ahead in civilisation means that you commit crimes against other races, especially against the developing countries to have your way, in order to rule others. If you are behind in civilisation means that you commit crimes against your own people to have your way, in order to rip off your motherland to accumulate wealth for your future generations. When you commit crimes against your own people your crimes looks more evil than Westerners’ crimes. Therefore, if you want to be perceived committing lesser crimes follow the Westerners.

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    It is also ironic that CJ is judging her own case!

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