| by Laksiri Fernando
(
December 25, 2012, Sydney, Sri Lanka Guardian) I never contemplated that I may
have to contradict or dispute Prof Carlo Fonseka one day whom I admired in my
young days, and even thereafter, as an impressive ‘fire walker’ and an exponent
of rational views on many matters, social and natural. But on many previous
instances, I doubted his political views or judgements, but not on the reason
of bias or prejudice. Now the things have changed. While pretending to be
preaching a ‘Sermon on the Mountain’ on this Christmas eve on ‘personal bias,’
‘prejudice’ and ‘conflict of interest,’ he has himself shown his bias and
prejudice from his very first sentence in his article titled “Why I urged myfriend Chief Justice to apply for leave”.
He
says, “I believe that it was in the practice of scientific
medicine that humanity perfected the technique of avoiding personal bias and
prejudice in the conduct of human affairs.” Of course he is free to have his
own ‘beliefs’ that are by definition closely associated with biases and he is
obviously bias towards his own discipline, ‘practice of scientific medicine,’
in this instance. It is my understanding (not belief) that the ‘techniques’ of
avoiding personal bias and prejudice are highly developed in jurisprudence, law
and justice, although jurists might not claim that they have perfected these
techniques. There are so much of debates still going on and some of the matters
are to do with impeachment processes; political biases in impeachment
procedures. Let me add that jurisprudence is not my academic discipline and
therefore I don’t have any ‘professional biases’ in making this statement in claiming
its advancements.
I cannot pretend to have any knowledge on the practice of scientific
medicine either. However, what he has written is supposed to be for the ordinary
laymen like me and therefore I am inclined to make the following further observations
on his article.
First is that I consider it completely erroneous for him to come to the
conclusion that the “practice of medicine has perfected the techniques of avoiding personal bias and prejudice”
and he has tried to demonstrated this through his training as a medical
practitioner or student. The experience he has related is extremely vague,
sketchy and subjective to the core. He has not done any comparison with jurisprudence,
psychology or sociology and jurisprudence is the most advance in my opinion on
this matter.
Secondly, I don’t see any connection between the conclusion of his
article finding fault with the Chief Justice not taking leave irrespective of
his advice and the four sections that he has outlined as ‘pre-medical,’
‘pre-clinical,’ ‘pharmacology,’ and ‘randomization and blinding.’ As far I can
understand, avoiding bias or prejudice is more central to the application of
justice whether in criminal, civil, human rights, labour, disciplinary or
impeachment cases or tribunals than in the case of practicing of medicine. Then
how can he assume that it is unknown? All law students are aware of or taught
about these matters (whether they practice or not) not to speak of the Chief
Justice and other judges.
In the Sri Lankan context, the recent presentation by CV Wigneswaran to
the Judicial Services Association is most instructive to read also dealing with
many other aspects of the independence of the judiciary. More theoretical as an
introduction might be by David Luban, “Laws Blindfold” in Michael Davis and
Andrew Stark (eds.), Conflict of Interest
in the Professions. It is available on line.
Thirdly, in passing I also like to raise some doubts about what he
mentions as the 10 factors affecting the application of medicine quoting a
Bennett and a Brown. Although he has mentioned about 10, he has only given 6
factors. As a patient of some acute medical problems, my experience has always
been that the medicine that applied to me worked perfectly well irrespective of
the doctors or my attitudes under the circumstances. Here he has not talked
about blindness but positive attitudes. I am not at all saying these factors
are not relevant in the practice of medicine, centrally or marginally. My point
is that Prof Fonseka is trying to concoct a medicine or a very rigmarole story perhaps
not that relevant in medicine but in politics - politics that he is indulged in
at present. If I may use a strong criticism, he is trying to prostitute his
professional knowledge for the benefit of a political power scheme to destroy
the independence of the judiciary. This is plain and clear.
It is in this context that his concluding paragraph is quite farcical. (My
Dear Sir, sorry to say that). There is no question that some of the things that
he says are ‘truths’ and ‘home truths.’ He talks about ‘blinding.’ This is
rudimentary knowledge. The classical iconography of justice is a goddess, Justitia, equipped with the Sword, the Scales and the Blindfold.
To ensure the blindfold, in certain jurisdictions there are direct ban rules.
Then there are indirect rules. Then there is discretion that all judges should apply
before being part of a bench or hearing a case. Any conflict of interest should
be avoided. All these are accepted.
I also cannot completely blame Prof Fonseka for his apparent advice to
his friend Chief Justice to apply for leave when her husband was charged for
bribery (if this was written then) because I myself initially thought perhaps
she could even resign to avoid any possible conflict of interest. The complete
background was not clear at that time. But why this article and advice now? Many
people also suspect that some of these friendly suggestions to the CJ then were
part of a scheme to pressure her to step down or succumb. I am not saying this
to Prof Fonseka without knowing the facts. Then the things changed very
rapidly. The impeachment was brought in and there were 14 charges and not one. If
she had resigned, it could have construed as admission of guilt. The pressure
was for her to resign.
Let me ask Prof Fonseka the first question: what he thinks about the
whole impeachment motion against the Chief Justice and the impeachment process?
It would be useful for the readers if Prof Fonseka expresses his opinion on the
whole matter without confining himself to one issue in a devious manner.
As SL Gunasekera and many others who were supporting the government
before (even perhaps now) have very clearly expressed there are serious issues
of independence of the judiciary and impeachment is only a part of it. I wonder
whether these matters of independence of the judiciary also come under Prof
Fonseka’s medical training. Whether for example there is any theory to say that
the judiciary should organically be a part of the executive like pancreas and
something else in biology?
Whatever that be, he should be obliged to comment on those matters of
the independence of the judiciary since he has put his finger into the ongoing
debate. When there are serious issues of the independence of the judiciary, in
my view, the Chief Justice simply cannot step down and wash her hands. That is
dereliction of duty as the Chief Justice. Justitia should wear not only the
blindfold, but also should hold the sword and the scales. The blindfold also
means her resistance to pressure. As she said in her key note address to the
Judicial Services Association on 22 December 2012 “the worst judge is not
merely one who is deaf; but one also succumbs to pressure.”
Also when there are impeachment charges, any judge should face them. The
resignation is not the right way. It may be pleasing to the government, but not
good for the judiciary or to the principles of accountability. We need to stop
the political culture of ‘cover ups’ in Sri Lanka. Otherwise there is no
democratic future. Any conflict of interest in respect of the CJ’s husband’s
case should be avoided and it is still possible. The case has not yet commenced
and all indications are that it is a framed up trail. In the case of the
impeachment, all blindness that Prof Fonseka talks about also should have
applied to the inquiry process. But it has not been done for the whole world to
see.
This is my last question. The CJ has raised a conflict of interest in
the case of two particular members of the PSC, Rajitha Senaratne and Wimal
Weerawansa, and both are I believe friends of Prof Fonseka. Applying the same
medical principles, I wonder whether Prof Fonseka ever asked them to take leave
from the impeachment process?
It would be too strong for me to ask whether Prof Fonseka himself has a
conflict of interest, prejudice or bias in commenting on the Chief Justice’s
conflict of interest by being a government paid Chairman of the National
Authority on Tobacco and Alcohol. This is not however a question.
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