Rajpal
Abeynakaye calls Chief Justice John Marshall a “cunning” and “devious” person
and Justice Vigneshwaran a schizophrenic
| by Basil
Fernando
( December 24, 2012, Hong Kong, Sri Lanka Guardian) In today’s ( December 24) SLBC program, most inappropriately called “People’s
Power” – a better name would have been “A Voice from the Political Gutters” –
Rajpal Abeynayake, the commentator, labeled America’s greatest judge a
“cunning” and “devious” person. The commentator also called one of the most
respected retired judges of the Supreme Court, CV Vigneshwaran, a
schizophrenic. Abeynayake stated that a well-respected lawyer, SL Gunasekara,
is somehow a person who has been misled by those who are political opponents of
the government. Abeynayake also accused one of the best known human rights
lawyers in Sri Lanka, JC Weliamuna, of attempting to cause a street uprising to
overthrow the government.
This SLBC program is a totally politically
program, designed to do Squealer’s function, as described in Animal Farm by
George Orwell. The character of Squealer represented the Russian media, which
spread Stalin's version of the truth - meaning lies - to the masses. What this
SLBC program does is to mention the names of persons who have written articles
or otherwise talked against the impeachment move by the government, and then
the commentator gives the government version. The commentator, while calling
all critics “political”, claims that he has an utterly objective view that is
not coloured by politics at all. In actual fact, there is nothing in the
program except an inept attempt to create an excuse for the government’s move
for impeachment. The appropriate translation for Squealer’s role in Sinhala is
“wandi battaya”. Rajpal fits into the role quite well.
He says that the only thing that the critics say
against the impeachment is regarding the process. This means that the criticism
is that, on the removal of the Chief Justice of the country, there has not been
a fair inquiry done by a competent tribunal. Rajpal fails to even grasp the
importance of a fair and impartial tribunal to arrive at any conclusion
regarding the guilt or innocence of any person. When this elementary truth is
ignored, any person can be hung by the clamour of anyone who makes some
allegations. The judicial function is all about fair trial. A fair trial could
be conducted only by a competent tribunal. If even a criminal were to be
“sentenced” to death by anyone other than a competent court, it would be
ridiculous to say that the only thing that is lacking is a verdict by a
competent tribunal and that it is just a trivial matter. That is exactly what
this program keeps on repeating a thousand times over, day and day after.
The commentator conceded to the argument by SL
Gunasekara that, prior to the 1978 Constitution, the decisions of courts by way
of judicial review was respected. And then the commentator argues that, after
1978, a new order has come into being and that JR Jayawardene certainly did
severely undermine the judiciary. Then he argues that what this government has
to do is to follow the recent practice, that is, the practice after 1978, and
that the government cannot be expected to go back to a period before that.
Thus, he concedes to the argument made by everyone that the impeachment move
severely undermines the independence of the judiciary.
The gist of Justice CV Vigneshwaran’s argument
was that the 1978 Constitution is a product of constitutional tomfoolery, and
that the 18th Amendment completed the process started by the 1978 Constitution,
creating a situation of political destablisation in the country. SLBC’s
commentator does not disagree with that view. In fact, he seems to quite
happily agree with that view, and his whole argument is that we are doing what
JR Jayawardene did. He wants to know what else anyone would expect a government
to do than to follow the more recent example over the examples from a remoter
time (one decade previous to the time he recommends), despite the fact that
during that time things may have been done more appropriately.
The most ludicrous part of his monologue was on
the greatest judge in American history, Chief Justice John Marshall, who Rajpal
repeatedly called a “cunning” and “devious” person. In doing this, Rajpal
showed not only his ignorance of history and law, but also showed why he should
not be taken seriously at all.
John Marshall understood that the separation of
powers made the judiciary a separate branch of government. The most central
function of this separate branch was to protect the dignity and the liberties of
the individual against the all powerful executive. Article 3 (1) of the
constitution of the United States gives that, “The judicial Power of the United
States, shall be vested in one supreme Court, and in such inferior Courts as
the Congress may from time to time ordain and establish.” It is this judicial
power that John Marshall used against the executive power. When the executive
or legislature did any act which interfered with the liberties of the
individual, it was the duty of a judge to use his judicial power to oppose and
to annul such acts of the executive or the legislature.
The constitutional provision granting judicial
power would have no meaning if it could not oppose the legislative power or the
executive power when appropriate and when the law requires it to do so. What
this comes down to is the ultimate power of the judiciary to interpret the law.
This presupposes that the law is supreme and, if the legislature or executive
does any act that contravenes law, the judges have the power to declare what
the law is and to annul any act that is contrary to law.
Rajpal also failed to understand CV
Vigneshwaran’s reference to the appointment of judges in the United States.
Vigneshwaran referred to the practice since 1978 of abusing the presidential power
to appoint judges. He stated that in the United States, even the President of
the United States does not have such power, as Presidential nominations are
reviewed by the Senate. Then Rajpal goes onto say that the Parliamentary Select
Committee is similar to the United States Senate; so we not only have
constitutional tomfoolery but also media tomfoolery, with Rajpal Abeynayake and
his like to play the jester’s role.
All this could have been taken as comic if not
for the fact that it is taxpayers’ money and the citizens’ valuable time that
is wasted by such political lying and absurdities.
Listening to Rajpal shouting justifications for
the indefensible, one is reminded of Aesop’s fable about the ass who tried to
develop an association with a lion.
One day, when the lion was going for a hunt, the
ass asked, “Sir, may I come with you?”
Rather amused by the request, the lion agreed.
When the other animals felt the presence of the lion, they fled and hid
themselves in the hollow of a tree. The lion, who thought of using the ass for
a good purpose, asked the ass to go behind the tree and shout as loud as he
could. Having got an opportunity to impress the lion, the ass shouted with all
the strength in his body. The sound was so abnormal that the other animals
feared that some new animal had come to the jungle and fled from the tree and
started running. The lion, who was
waiting some distance away, did his hunt easily and started his meal.
A little
later, the ass approached the lion and asked, “Sir, how did you like my shout?”
The lion replied, “If I did not know that you
were an ass, even I would have gotten frightened.”
Of course, when Rajpal tries to take on persons
like the late Chief Justice John Marshall, or retired Supreme Court judge CV
Vigneshwaran and senior lawyers like SL Gunasekara and JC Weliamuna, one cannot
help thinking about the ass who wanted to impress the lion.
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