| by Gomin Dayasri
( October 14, 2012, Colombo, Sri
Lanka Guardian) The incident reveals that giants often have feet of clay. They
has surely sullied the image of the nation but opened a can of worms that was
never displayed in public to paint a thin silver lining in an otherwise sordid
saga.
The ball is firmly in the government’s
court to do what is necessary. They should use all the king’s men and all the
king’s horses to find the perpetrators of this ghastly crime of assaulting a
judicial officer. Solving this crime may resolve many of the outstanding
perplexing issues relating to the incident.
If they fail, the government may
have a permanent cloud of suspicion over its head. Nevertheless, if all the
surrounding circumstances are observed objectively, the government is not
necessarily the wrongdoer; but the government stands as one of the prime
accused because of its weak track record with so many wrongdoings relating to
the establishment remaining unsolved and unresolved.
It’s no easy task. Information in
finding the miscreants is not easily forthcoming, as interested persons
including third parties would prefer this to be an unresolved crime to place
the burden on the state. The parties - accusing or accused - could have been
responsible for this despicable act to further their own positions. So many
have different interests to protect and as to who lit the bonfire, that’s
anyone’s guess. In Sri Lanka who is colluding with whom is difficult to trace.
Wrongdoers are often not brought
to justice because of political interference and judicial laxity. Justice has
not lived up to its desired image of being a sacred institution. Never was the
maxim: ‘All are equal before the law’ more often observed in default than as at
present – the mighty and the affluent being untouched. "Cover up" is
a defense unknown to law; but is now a secure process to be above the law
because the executive condones such wrongdoing. Justice is made a mockery where
a few consider it as a temple worth a visit.
The decision of the judiciary to
distance itself from the executive is commendable but the practice in the last
decade has been otherwise. It’s better late than never but more important, it
must be followed to the letter uniformly in the future. The judiciary has been
permitted by the executive to accept foreign judicial appointments while being part
of the local judiciary. Who sought such appointments? No doubt lucrative but is
justice in this country being properly served? Is this the distance the
judiciary now proposes to maintain? Why are lawyers keeping silent when such
practices are allowed to flourish? Pandering to the judiciary is not a
favorable stance for a fiercely independent Bar to maintain.
Scales of Justice are not squeaky
clean. Judges have at times accepted many juicy bones thrown in their direction
by the executive. Why does the executive make such offers, but with a view to
obtain access to future benefits? If benefits are offered, they must be
uniformly offered to the whole judiciary. Otherwise it conflicts with the rules
of equality and the discrimination that results bring both the executive and
the judiciary to disrepute. The Executive must be proper in exercising the
rules of equal treatment and if individuals in the judiciary are picked for
favored treatment, it is unacceptable. How many of the favored declined such
tempting offers? In the past they did, and the judiciary was venerated.
Immediately on retirement
political appointments such as ambassadors and presidential advisors are
offered and accepted. Children and spouses of judges have gleefully accepted
bounties and enjoyed them. Matters turn sour if the offered bounties are lost,
then personality clashes can surface harming relationships between the
executive and judiciary. Why should the nation suffer because of possible
problems among those in high places? Curse both the giver and the taker for the
lack of self –discipline. A wrong impression is created as to how equitable are
judicial pronouncements if bounties are there for the taking as justice must
appear not only to be done, but must be seen to be done. What is the impression
created in the public mind? To gain respect it is essential respectability is
sustained.
The Judicial Service Commission
has also to share some of the blame in issuing public statements bringing shame
to the nation when differences in the early stages can be resolved through
amicable discussion. It is important that persons in high office are mindful
that in the international arena there is an onslaught on Sri Lanka so we must
maintain a good reputation rather than openly discredit our country by making
statements that reaches the international community.
The statements issued by the
Judicial Service Commission aggravated the problem, without realizing it would
harm the image of the country. Living in judicial isolation, the JSC made an
unintentional errors being not mindful of the harm it can cause
internationally. The route to take is to avoid confrontation in the initial
stages when it is against the interest of the country. Confrontation is
necessary where all other avenues are finally closed; especially for those that
administer the law. Staying away from work on a joint decision (‘strike
action") was premature.
The Secretary of the Judicial
Service Commission (JSC) should never be a controversial officer. It is
necessary to maintain the decorum associated with his office in quiet dignity.
Otherwise the JSC would be unable to function smoothly as the office holder has
to liaise with the other two branches of the tripod- especially the
administration. National interest must not give way to personal interest when
public institutions function because there must be harmony between the JSC and
other state institutions to obtain benefits on judges’ welfare measures. A
minor change, made with a clear mind in time, can difuse many a problem.
This incident clearly establishes
the value of Ranil Wickremasinghe for in the midst of the turmoil he suggested
the matter be referred to a Select Committee of Parliament to reach a finding
on this conflict. As the Speaker said in his recent address when the Supreme
Court made an order relating to his office - "If there are conflicts and
confusion within or between the tripod of power, it is the People - the
repository of sovereign power as whose representative we have assembled – that
will suffer the consequences." Accordingly the Legislature must intervene
to harness the Executive and the Judiciary.
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