The western medical profession and the legal profession in Sri Lanka are arguably the oldest elite western professions in Sri Lanka. At least some of the practitioners of the professions are supposed to have expert knowledge in their respective fields and ordinary folk have been instilled with fear of the professions. The western medical practitioners are no Vedamahaththayas who are respected by the villagers. However, the social status, not to mention the income enjoyed by the western medical personnel is so great compared to that of the Vedamahaththayas, many a sons of Vedamahaththayas have ended up as consultants or specialists. There are no Azdacs of Caucasian Chalk Circle around to become Judges, though we are not very far from the struggle described by Brecht over who should manage the farms in a certain village of the Soviet Union after the Nazis had retreated. In other words whom should the child belong to? Before the readers come to wrong conclusions I must inform that I have seen this drama only in Sinhala in Hunuwataye Kathawa. In Sri Lanka after the English had “retreated” at least in theory, there has been a long struggle over who should rule this country. Is it the western educated elite introduced to the western culture or the ordinary people who are still immersed in some form of the Sinhala Buddhist culture? I am afraid the ordinary Tamils were kept out of this struggle by the English educated Vellalas until Prabhakaran came on the scene. Unfortunately he was used by the very same westerners and of course the Indians, though the latter did not succeed much, against the Sinhala Buddhist culture. This prolonged struggle is nothing but a continuation of the independence struggle by the Sinhalas against the English, and it is destined to be carried on for few more decades. It is a struggle between two cultures though not in the sense of C. P. Snow, albeit reminding us of Huntington’s Clash of Civilizations. It is in a way clash between “Kultas” and “Haras” of University of Ceylon at Colombo and Peradeniya, before the “Haras” began to climb the social ladder after leaving the university.
When the lawyers, apparently some of them belonging to the judicial service shouted Jayawewa and Bhangawewa and dashed coconuts the fall of the western legal bastion began. When Dr. Shirani Bandaranayke who I understand hails from Anuradhapura and not educated in a posh Colombo school walked through the pubic entrance on her way to the Parliament all were written on the wall. Not fifty years ago, but ten years ago Hultsdorf would not have experienced such events. The elite lawyers of yesteryear would have gone to Kataragama on pilgrimage with their families but would not have shouted Jayawewa and Bhangawewa in Hultsdorf let alone dashing coconuts. It is not that they did not believe in Gods but they pretended to be sophisticated and cultured who did not believe in so called myths, and in public confined their views to matters concerning western knowledge, whether in law or science or arts, occasionally quoting from Dhammapada or Bhagavath Gita in Philosophical and not in religious matters, and belonged to the “Kultur” set. Their fathers or grandfathers would have come from villages but they would have had an education in elite schools and become “Kultur”. The “Haras” though had roots in the villages and were the educated rural youth did know only to imitate the “Kultur” sect not only in manners but also primarily in knowledge. Gunadasa Amarasekera has depicted the lives of these people who came from villages to the Universities and became university lecturers or civil servants imitating the “Kultur” set. However he forgot that all these people educated in the western tradition in the central schools or elite schools did not differ from each other in uttering western myths on so called myths of the east. As a result the elite lawyers and doctors have been able to use their colleagues who are still climbing the social ladder in order to defend the western systems. However, those who have still not become elite cannot give up their jayawewas and banghawewas and also dashing of coconuts in public. They are yet to become sophisticated and hide their feelings in public, while defending their system.
The lawyers who did not make a vociferous protest against the previous attempted impeachments of Chief Justices are up in arms against the impeachment of the incumbent CJ. It is not the position of CJ that matters but the government that brings the motion of impeachment. The professionals as a body are against the SLFP led governments though individually some may support the SLFP. The same applies to the University lecturers as we witnessed in the unsuccessful FUTA strike. The UNP governments and the system with the professionals are together in defending the judiciary, good governance, democracy etc., in theory though in practice UNP does not have a clean track record. Chandrika Kumaratunga as we have said on many occasions is more a Kumaratunga than a Bandranaike and she is virtually in the UNP when it comes to national politics. However Mahinda Rajapakse is a different kettle of fish who could stand up to the pressure exerted by the western countries. There is nothing that the west can do by passing resolutions against Sri Lanka in Geneva or Timbuktu as long as the masses are with the government. The President knows this now by experience and it is no secret that the west is trying to oust the Rajapakse government. The lawyers whether they are elite or social climbers are with the west in the final analysis as long as they do not have a national intuitive political consciousness or knowledge based in our Chinthanaya.
The impeachment is based on two articles in the constitution, and the lawyers who did not protest against J R Jayawardene when he attempted to impeach Mr. Neville Samarakoon are now quoting these two articles as if they had been introduced by Mahinda Chinthana. These two articles had been there from 1978 in the constitution but the lawyers bypassed them during the eighties. They now argue that the Parliament has no power to impeach the CJ, and go back to the people who are supposed to have the sovereignty according to the constitution of the republic. It is clear that article 4(a) and 4(c) quoted below state that both legislative power and the judiciary power of the People shall be exercised by the Parliament, the difference being that in the case of Judicial power the Parliament exercises it through courts, tribunals and institutions. It does not say that the judicial power has to be exercised only through courts and tribunals but it includes institutions created and established, or recognized, by the Constitution, or created and established by law.
“(4) (a) the legislative power of the People shall be exercised by Parliament, consisting of elected representatives of the People and by the People at a Referendum;
(b) the executive power of the People including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People;
(c) 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”;
Parliamentary Select Committee is an institution that satisfies the criteria stated in (4) (c) when it is read with Article 107 (3) on impeachment of judges of the two higher courts, which 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.”. Standing orders per se may not be law but for the impeachment of the judges the relevant standing orders are law under Article (107)(3). Of course, what I have stated is my opinion who is not a trained lawyer, but the question arises as to who has the power to interpret the law in this particular case. If it is the Supreme Court then there is a problem as the judges who interpret the law are appointed by the CJ who is being impeached. These are shortcomings in western systems that are linear, and usually the west overcomes these problems by creating traditions where the concerned person resigns. However, in Sri Lanka there are no such traditions in the judiciary and the writing is on the wall for the western judiciary as practiced in Sri Lanka. If the present Speaker decides following Mr. Anura Bandarnaike that in this matter Parliament is supreme exercising the judicial power of the people then that would further establish that the role of the judiciary is limited.
The west having failed with various springs including the academic spring and the Katunayaka spring are now supporting this Pakistani spring, trying to create a clash between the legislature (and the executive) and the judiciary. This clash will finally strengthen the parliament, and the ordinary people who have been intimidated by the judiciary more than by the legislature would not allow a Pakistani spring to blossom. The ordinary people who had been awed by the black coats of the legal profession have realized that within the cloaks of the lawyers there are no Gods but only those who dash coconuts asking for help from Gods. As far as the ordinary people and the government are concerned Geneva is far far away unlike for the globetrotting human rights people who in effect attempt to defend the “rights” of the west to exploit us using western knowledge including Roman Dutch Law, more than anything else.
Copyright Prof. Nalin De Silva