Reconciliation: Looking Forward ix – Rules To Prevent Judicial And Other Abuses
By Rajiva Wijesinha -
January 8, 2013
Prof Rajiva Wijesinha
Given the plethora of worries about the financial integrity of the Chief Justice, it may seem redundant to demand higher standards also from the Select Committee looking into her case. But the Select Committee itself provided the principal reason for circumspection when it declared that ‘The office of the Chief Justice is a position which demands maximum confidence of the public. A moral conduct of an exceptional degree is expected from a Chief Justice unlike from an average citizen. Your Committee observes that any discredit to such conduct leads to a decrease in the confidence of the public towards a holder of such office’.
That being the case, it must be obvious that Parliament, which is, or should be, an even more exalted entity, must also have the confidence of the public. It must therefore be even more careful not to seem to be biased in its conduct or hasty in its decisions.
Given that the misdemanours the Chief Justice is alleged to have committed would, if proved, constitute criminal conduct, they must be investigated in accordance with criminal procedures. This includes presenting evidence systematically and allowing adequate opportunities for it to be challenged. If that is not done, and clearly seen to be done, public confidence in Parliament would be eroded.
Unfortunately the Standing Orders governing impeachment do not come up to the expected standard. This is obvious from the many cases cited to justify the procedure since, in other countries where Parliament acts judicially, there are several safeguards which do not exist in our system. In particular that function is entrusted to a second chamber, where members are more clearly independent individuals than lower house members who – even without our preposterous election system – are more inclined to divide on party lines.
It is also important to ensure formal procedures comparable with what happens in the Courts. Mutual respect should characterize proceedings, and this is facilitated by allowing them to be public. The request of the defence that this be permitted should not have been summarily dismissed, on the grounds that the Standing Orders forbade this, since Standing Orders are not sacrosanct, unlike the Constitution, and may be waived when those involved agree.
Comparison with what happened in the Philippines, the most recent instance of a Chief Justice being impeached, makes it clear that what amounts to a judicial process was followed there. The first statement of the Liberal Party on this subject drew attention to that case, and our second statement suggested that our Standing Orders should be amended. Alternatively, we suggested the Select Committee could have a Sub-Committee consisting of former judges of the Supreme Court to assist it.
Unfortunately the Select Committee not only decided to proceed on its own, but dismissed all objections raised and requests made. Some of these may have seemed unreasonable, and the dissent of opposition members should not be taken as proving prejudice on the part of government members, given the oppositional nature of Sri Lankan politics. However a fair minded observer would wonder about allowing only a week for the statement of defence when six weeks had been requested. Even more startling is the fact that the defence was asked to commence ‘to disprove’ two charges one day after the documents relevant to those charges had been handed to them.
While the Chief Justice should not have walked out of the Committee, the claims made with regard to the language used suggest some doubt as to whether the assertion that she would not get a fair trial was unreasonable. Certainly the Committee should not have dismissed summarily the contention of opposition members that a written submission they made should be considered and the Chief Justice requested to appear before the Committee again.
However the opposition members should not have walked out, and I cannot stress enough the irresponsibility of opposition politics in Sri Lanka, in expressing through sulking what should be clearly stated and recorded. In 1981 the SLFP opposition was not present to vote when the UNP government passed a vote of No Confidence in the Leader of the Opposition, Mr Amirthalingam, and it was only Mr Thondaman and Shelton Ranaraja who stood against the overwhelming tide of their government colleagues and abstained. So too the manner in which the current opposition has made a nonsense of the 18thAmendment by not expressing their views on appointments such as that of the Chief Justice indicates a childishness that makes one despair. Had the opposition for instance expressed and put on paper its opposition to the appointment of Shirani Bandaranayaka as Chief Justice, the President would have found it embarrassing to have appointed her, and even more embarrassing to have encouraged impeachment when he had ignored advice offered on a constitutional basis.
But, as noted, our incapacity on all sides to use the procedures we have is what encourages contempt for procedural norms. Thus, where they do not exist, we do not even understand what problems we create for ourselves.
Ron Paul’s Departing Advice To The US Congress: Relevant To Sri Lanka Today?
Dr W.A. Wijewardena
The self-taught economist
Ron Paul, libertarian to the end and US Congressman for 23 years out of a 35 year long political career, retired from active politics end-last year at the age of 78. He tried nomination for the US Presidency thrice unsuccessfully, the last being the just concluded Presidential election in 2012.
Though he was a physician by profession, he taught himself economics in the hard way, laboriously reading practically every book on economics. In that sense, he is a good example for Sri Lanka’s Parliamentarians and budding politicians to emulate. But it was the liberal free market economy system that was propounded by the Austrian school of economics, chiefly Ludwig von Mises, Friedrich Hayek and Murray Rothbard, and the Russian Émigré and novelist Ayn Rand that kindled his curiosity in the subject and was responsible for making him a solid convert to the doctrine. He is the author of six bestselling books on popular subjects in economics. Starting with The Case for Gold in 1982, he published a series of books announcing his philosophy of socio-political-economics to the readers: A Foreign Policy of Freedom (2007), Pillars of Prosperity (2008), The Revolution: A Manifesto (2008), End the Fed (2009) and finally Liberty Defined (2011). With a sound knowledge of how an economy works in a practical sense, he did not hesitate to argue in live TV debates with giants in economics, one being the Nobel Laureate Paul Krugman. Another Nobel Laureate Joseph Stiglitz, though in the camp opposite to Ron Paul’s, had agreed with him when he said that a central bank was not needed for the prosperity of a country.
A master debater
Ron Paul’s ability to engage in debates has been remarkable. In one of the TV debates Paul Krugman tried to ridicule him saying that he was trying to take USA back to 150 years ago. To this, Ron Paul’s quick response was that Krugman, with his government expansionist policy, was trying to take USA 1000 years backward. His reference was to the Roman Empire which had a lot of government intervention in the economy leading eventually to its demise (available here).
