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Monday 24 December 2012

London bridge is falling down and is not made of iron and steel

I am no admirer of western systems from western science to western law and I am not disturbed by the collapse of the western systems in Sri Lanka, but my only concern is that we do not have well developed alternatives to the western systems as at present, though we have come a long way during the last three decades or so. What is happening at present is that we are imitating the western systems that are collapsing without seeing the proverbial light at the end of the tunnel. The western Christian (non RC to be precise) institutions are collapsing all over the world as best illustrated by what is happening in Western Europe. In Sri Lanka we have been imitating without adopting or assimilating the western systems, and during the past fifty years or so our universities meaning western universities in Sri Lanka, the western administration that had the old CCS at the helm those old days good or bad according to the way one looks at the world, the western legislature, the western medicine and now the western judiciary have come down. The legal system was the last bastion of the western systems and the public have come to know the shortcomings and corruptions of the system during the last month. The universities collapsed a long time ago and the administration that was headed by the university graduates collapsed soon after. However this collapse has to be qualified as one could take it for granted, as we have been trained by the English, that the collapse is absolute. There are no absolutes in any field, not even in ethics, and the collapse as mentioned here is relative to what it was before say 1956, that unforgettable year in the history of Sri Lanka, and it does not mean that what existed before 1956 was good by any means. A system that was dissociated from the Sri Lankan culture had been imposed on us producing a Brahmin caste or class (not in Marxian sense) that did not earn respect as the Bhikkus did from the ordinary people but that tyrannized the people. Ordinary folk who had been to a court of law would have felt the tyranny.

I myself was once humiliated by a judge who was acting like a mad feline creature, but I did not have the liberty to tell him that I did not have any faith in the system and walk away. Had I done that the case would have been heard ex parte and not only that I would have been found guilty but I would have been charged for contempt of court, and thrown into the jail. As has been said the common man had been able to evict the Ejantha Hamuduruwo from the Kachcheri but not the Nadukara Hamuduruwo from the courts. It is happening now and needless to say I, whose motto is “neither learn nor depart”, not being a product of the system is not entirely unhappy with it. However to much dismay the departure of the Ejantha Hamuduruwo did not bring relief to the ordinary folk as the substitutes were poor imitators of the Brahmins who wanted to climb the social ladder through free education. The education system has failed to produce people who could evolve our systems based in our culture. The replacement of the CCS by SLAS has only made the system collapse if we judge by the standards of the white rulers (suddas). The same has happened in the Universities and most of the present day academics cannot hold a candle to the so called giants of the yesteryear though the latter themselves had not produced any new concepts or theories. It is a case of grade one imitators being replaced by grade three imitators. It is not different from the school system where the elite schools imitated the English public schools and the central schools imitated the elite imitators. I am not unhappy with imitators being replaced by imitators of the imitators as it would gradually open the eyes of the public to the non applicability of the western systems. I am reminded of Azdak of Caucasian Chalk Circle who said "The judge was always a chancer; now let a chancer be the judge!" As a passing remark it should be emphasized that the Universities in the west are also collapsing in the sense that these Mediaeval Catholic Institutions find it difficult to maintain the traditions in the context of Western Christian Modernity.

As has been said the present impeachment of the CJ is not a tussle between the Judiciary and the Legislature (or the Executive). It would end up by evicting the Nadukara Hamuduruwos from the courts and establishing another set of imitators who are only social climbers. It is an irony of fate that the present CJ who has to preside over the events, herself is not from the elite class of the society. The transition period Mr. SWRD Bandaranaike referred to has been extended and it is possible that it would last for at least another half century. We have no alternative but to put up with the transition period with imitators of imitators until we produce our own “Vinnus” (people who are knowledgeable). Both the elite Brahmins and the social climbers who speak for the elites use the same language and defend the Judiciary against the Legislature, misleading the laymen. Ironically as we do not have our own systems the anti Brahmins have to defend the constitution while trying to present the broader picture in which the functions of the western colonialism against the freedom of the country are illustrated. The Brahmins base their arguments on the superiority of the constitution and the sovereignty of the people in order to defend the judiciary against the Parliament. They claim that the Parliament has no judicial powers but they have to make use of Article (4) (C) of the constitution which says that “the judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognized, by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, wherein the judicial power of the People may be exercised directly by Parliament according to law.” It is clear that the judicial power of the people is exercised by the Parliament and not directly by courts. It is a sort of delegation of Judicial powers by the Parliament to courts and institutions created and established, or recognized, by the Constitution, or created and established by law. The Brahmins emphasize that the courts and institutions have to be created and established by law ignoring conveniently that they can be created and established, or recognized, by the Constitution. The Parliamentary Select Committee (PSC) is recognized by the constitution and the use of the word or is very important in Article (4) (C). PSC is established by Article (107) (3) of the constitution.

What these advocates of the Brahmins do not realize is that people, constitution are abstract concepts that in practice do not mean much. In any event so called separation of powers had to be introduced by western Political Scientists as the bourgeoisie in England could not complete the revolution. It was the Americans and the French who attempted to complete the bourgeoisie revolution and the abstract concept of people had to be introduced in theory. In Sri Lanka JR Jayawardene who imitated both French and American constitutions created this abstract concept people, made it sovereign in theory keeping power for himself in practice. It is the executive that has power in Sri Lanka and hierarchically the Parliament comes after the Executive with Judiciary coming after the Parliament. The advocates of Brahmins cannot mislead the individuals who may or may not belong to this abstract people. Then (107) (3) says: states “Parliament shall by law or by Standing Orders provide for all matters relating to the presentation of such an address, including the procedure for the passing of a such resolution, the investigation and proof of the alleged misbehaviour or incapacity and the right of such Judge to appear and to be heard in person or by representative.” Here again the word or is important and Parliament can by standing orders alone could provide for all matters relating to this all important address to the President. Thus (4) (C) together with 107 (3) justifies the work of the PSC irrespective of whether the MPs who sat on the committee were not trained in law or whether they were crooks. In any event we remember the words of Azdak quoted above. The standing orders 78 (A) were established in order to cater for such situations and they have been there from 1984.

If the standing orders were not in order CJ should have said so in advance and it is to her credit that she has not said anything to that effect even during the time that the PSC deliberated. It is the advocates of the Brahmins that attempt to make a fuss of the standing orders and claim that the CJ was not given a fair trial. It was the very same UNP that now agitates for judges from the commonwealth to form a panel to investigate the charges against CJ that drafted the standing orders in 1984 when they attempted to impeach Mr. Neville Samarakoon. Nobody found fault with the standing orders 78 (A) until now and it is not proper to pass new laws to judge the CJ though UNP is notorious for doing so. The CJ when she walked away from the PSC committed a cardinal sin as standing orders 78 (A) (5) sates: “The Judge whose alleged misbehaviour or incapacity is the subject of the investigation by a Select Committee appointed under paragraph (2) of this Order shall have the right to appear before it and to be heard by, such Committee, in person or by representative and to adduce evidence, oral or documentary, in disproof of the allegations made against him.” In this particular case when judges are being impeached the judge has the right to appear before the PSC and to adduce evidence in disproof of the allegation. In a sense the judge is given the opportunity to disprove the charges unlike in the ordinary cases where the accused has no such obligation. In such cases it is the prosecution that has to prove that the accused is guilty, and the CJ when she walked out from the PSC abdicated her right to disprove the allegations. She cannot complain of the work done by the PSC after she left and I would commend the PSC for submitting the report to the Speaker in very quick time. After all justice delayed is justice denied, and if the courts act with one hundredth of the speed of the PSC it would be for the benefit of the litigants.

This question of inviting judges from the Commonwealth is good for the Brahmin caste who always finds solace in external help when their system is threatened. This appeal for external help derives from Greek Judaic Christian (GJC) Chinthanaya with linear hierarchical structures. Since CJ is at the apex of the judicial system who would judge her? In the GJC Chinthanaya one has to appeal to God or some external authority and the UNP can think of a good for nothing commonwealth which attempts to continue the British Empire unsuccessfully. Forget the commonwealth or any other external agency and judge CJ within the country with the laws and the constitution of the country. If the commonwealth wants to sack us let them do so and we should not be scared of gonibillas (bogeymen), and proceed to work according to the existing laws that include the constitution. We would have done wrong if we change the laws and the procedures after the impeachment process had begun. It is clear that the external forces or non national forces want to oust the President and send him to the guillotine together with Mr. Gotabhaya Rajapakse for the crime of defeating the LTTE that was supported by the western forces. The President is one person who would not be scared of gonibillas.

Copyright Prof. Nalin De Silva