MONDAY, 14 JANUARY 2013
We meet today to honour the memory of Sir Ponnambalam Arunachalam. To this audience, I need hardly dwell on his outstanding contribution to the development of our nation. Sir PA was born over 150 years ago and to this day remains, unquestionably, one of the leading figures of our country. Along with his brother Sir PR, he is rightly watchfully, over the entrance to what was once our Parliament building.
Speaking here last year the Dean of the Faculty of Law, Professor Selvakumaran, reminded us that Arunachalam would have wished for a “United Sri Lanka”. This year I wish to speak some words to you grouped round /linked to / inspired by/ another of Sir PA ‘s attributes relevant also to concerns of the day. I will come to that in a moment but before that let me first make a few collateral observations.
Sir PA does not stand alone. He himself inherited a great and distinguished family tradition. Mudaliyar Coomaraswamy, his maternal grandfather was the Tamil Member of the First Legislative Council of this country, established, as far back as 1834. His uncle Sir Mutu Coomaraswamy was a renowned figure of his time; only, to be surpassed- by his more famous son, Ananda Coomarswamy to whom we owe the debt for having put Medieval Sinhalese Art on the world stage. In more recent times Prof T. Nadaraja, was a legendary figure in the law faculty. His work in the intricate field of the law of Fideicommissa and S. Navasivayam’s History of the Legislative Assemblies of Ceylon are indispensable and authoritative works in their respective subjects. Bakku Mahadeva was one of the most respected Civil Servants of his day. Jayanta Padmanaba whose prose has been described as “the envy of his colleagues” came from Oxford to work on the editorial staff of Daily News. I am not referring here to just well known group of people. It is one that has earned an unshakeable place in the affairs of our country by its distinguished intellectual contribution both here and abroad.
The cordial and highly productive relationship between Sir P.A and Mr. D.R Wijewardene in advancing our national interests at a critical stage of the country’s history has been well recorded. Indeed, it was to Ponnambalam Arunachalam and to no other that Mr Wijewardene turned for a Special Message on the front page in the first issue of the Ceylon Daily News, published on January 03 1918 - 95 years ago.
I want to put before you today some thoughts and ideas around Arunachalam’s commitment to the “law” both as a judicial officer and as a legislator. Adopting the thoughts of our distinguished speaker of last year, I would like to say to you that A would have wished, not only, for a United Sri Lanka but also for one, in which, the Rule of Law and its “associated values”, would have a firm, unquestionable, and abiding hold on this country.
I want to show you, why certain “values” or “standards of conduct “are associated with the Rule of Law; how inseparable they are from it and, and why they are vitally important to this concept as the more technical connotations and implications of the expression used by lawyers. We will briefly touch upon one or two of these today.
Over sixty years have passed since we became an independent nation state; but we seem to be still trying, to find our feet as a sane and mature society in the world community. We need to stand up and be counted without fear or favour. But we feel submerged by a sense of unease and today even of crisis. It is necessary to get over this “sense of struggle” on basics and this we can only do by understanding and legitimising the associated values and standards of conduct which are a part, I believe, both of the Constitution and our law. We have different technical names for these things, but there is no magic: sometimes we call it due “Due Process”, sometimes “Rules of Natural Justice” sometimes “minimal procedures”. The names do not matter. We know what we are talking about.
It is true that issues with legal connotations keep pressing on us. This is more so when the rule of law appears under threat. The need and the capacity to use expressions like the Rule of Law as a bench mark is not confined to the legal profession. It is as much a demand of every citizen in his daily life, as a lofty principle of law.
The idea revolves not only around high functions of State and, how the different branches of government interact with each other - which could lead to quite a technical discussion. But, it is also about how we relate to each other and treat each other with dignity, respect and essential politeness. If we do so in our individual actions, vital institutions, we hope, may also respect each other.
Even powers we exercise within a family, over domestic workers, within association of friends, within a temple or church or club, committee, or company to which any one of us may belong must have the benefit of acknowledged standards which are expected from all of us if these relationships are to be conducted in an orderly and fair fashion.
This is because this idea of the rule of law is intimately linked with our sense of “Justice”. So it is, firstly, an inarticulate, may I say an unarticulated, perception within each one of us from our youngest days. It is said that “In the little world in which children have their existence there is nothing so finely perceived and so finely felt, as injustice.” We know this from childhood and that is why, as parents we take so much trouble to treat children in a family, fairly and equally.
Why is it difficult then to allow “justice” to prevail? The difficulty comes from having to articulate this perception in the form of “reasoning” especially as the situations become more complicated. But our reasoning whatever it is, must be backed up and protected with a keen perception of “fairness” inside each of us. If not, whether you were to become a lawyer or legislator, a judge or a member of an important Committee playing with laws rules and processes becomes a “meaningless game.” A pointless exercise.
Let us take a simple hypothetical example which could prove problematic: Suppose at the entrance of a park there is a sign saying “cycling is prohibited in the park. “Someone important comes in a motorcar (I have seen that happen). Another is a cripple and he comes in a wheel chair. It may not be enough to say “this is alright” and “this is not.”
Admittedly, sometimes there is a need to subject issues to a “process” and for “somebody” whether Court, a Tribunal or Committee, to reason it out. When lawyers do this, it is called “legal or judicial reasoning” i.e when the issues are linked to the process of judging between two opposing positions which affect the rights of people; We need to ensure that this process of reasoning is focused, concentrated, free from extraneous considerations and backed by a sense of justice. We need to trust the process. This is why the judicial process is required to be independent. We don’t like it to be interfered with by anyone-high or low.
And, we need the rule of law because we cannot accept the rule of the jungle or, of the fish pond: where the bigger fish swallow the smaller fish and the water is tranquil only for that reason.
Let me now turn to a couple of the more technical implications and consequences of the rule of law which are of vital concern to us today.
If I were to I throw my mind back over the years of my working life I see that impinging on the independence of the judicial process, in small and bigger ways, started pretty early in our life as a nation state after 1948.
The first instance I seem to recall - I was a school boy at the time - was when the Magistrate or Chief Magistrate of Colombo who did not act on the evidence of a prominent politician of the day was, as it was perceived the time, deviously, transferred out of Colombo. It appeared to us school boys then, a barely disguised and ugly response on the part of government to show its opposition to the outcome of a judge’s reasoning.
I recall the law library protest against the attempt made to introduce, “retroactively”, the death penalty in connection with the assassination of a Prime Minister. The names of those who voted for the motion were collected so that the Government could reward them with appointments. It was in bad taste. There were signs of danger in the air: of gathering storms.
Then in 1962 - just fourteen years after independence - came the so called First Coup Case when the Minister of Justice as a part of the Executive arm was by a Special Act of Parliament, dealing also, “retroactively,” with events that had already occurred and were being investigated and prosecuted, authorised to select judges who would do the actual hearing .Amongst the Judges selected was the former Chief Magistrate of Colombo who as it were had been penalised by an earlier government but who had, by then, become a Judge of the Supreme Court.
The decision in this case is a high water mark of judicial independence in the early stages of the battle. The judges dissolved themselves claiming that the constitution of the bench to hear a particular case was a matter for the CJ as an exercise of judicial not executive power. The Judges declared in bold letters that it was not enough that justice was done. It must be seen to be done As a Nation we proclaimed this obvious but important principle for ourselves; as an important a guide for the future. We did that half a century ago. But we could not hold on to the high ground.
A decade later, in the travesty which was the Lake House Take over Case objection was taken, to a judge who as an individual had expressed himself as being in favour of the very issue which was being adjudicated in that case. Naturally, he could not be a judge in the case. There was a clear conflict of interest. He could not be seen to be impartial; let alone to be impartial. The court, heavily influenced by the politics of the day and indeed by very presence of high Public Officials who came and sat in front of them -by now the Court had shifted both metaphorically and physically into Parliament- They sat in Parliament- The Court saw nothing wrong with it. With a nod and wink it was allowed to pass and, an institution collapsed. A high water mark of just a decade earlier became a new low.
Now, Forty years on, the ghost seems to have returned and impartiality is at stake again. Never mind the fora for the moment —whether it is a Court or some other body which is handling such a process. It is, the “standard” of conduct that matters. No amount of legal controversy and theory can obfuscate that. And, remember this standard of conduct IS also OUR LAW.
But let me go on with the story. In between there was another dip of a different sort where the law took its course only to be rudely interrupted and where Constitutions were made play things instead of a mechanisms of respect towards each other for conducting our national business in a dignified and stable way.
I am referring now to the Kodeswaran Case. You will recall that Kodesweran was a humble public servant whose annual increment of a hundred rupees was denied to him because he had failed to gain proficiency in the Sinhala language which was not a required condition when he joined the service and when other public servants were not required to show proficiency in another language. The case was that this demand offended a very simple provision of the then Constitution which disallowed legislation discriminatory [of a community.] He lost in the Supreme Court on a preliminary objection- that Public Servants had no right to sue for their emoluments. But he won this point in the Privy Council. The Privy Council expressly stated that it would offer no view on this till it had the benefit of the views of the Supreme Court of this country on such an important issue.
All the judges of the Supreme Court were expected to assemble and hear the case. But what happened?
Between the time the Privy Council gave its opinion and sent the case back for hearing the Government of that day decided to change the Constitution. The Government was supported, surprisingly enough by the left of centre politicians and intellectuals in this country and assisted by one of our respected lawyers of the day, reputed, in fact, for his sense of fairness, abolished the relevant section, leaving Kodesweran high and dry, cutting the ground under his feet, changing the rules of the game “when play was on”, ignoring the principle of justice that in changing Constitutions existing rights should be preserved. Any child’s sense of fairness would have been offended by that. Every school boy knows a “foul” for what it is. The Senate was abolished and the Privy Council done away with, so that political and legal challenges could be kept at a minimum and opposition stifled, opponents put in fear. These were the birth pangs of the 1972 Constitution. It was all packaged and sold as home grown, nationalism. We paid the price. Additionally, we paved the way for others; shall I say -the class 1978!
We have not the time and this is not the place to examine our failures and successes in any detail, but please recall, that when the 1978 Constitution was brought into being, the right to “tenure” of judges — a vital principle - was ignored and the Government of that day, whose rhetoric for the Rule of Law was purple enough, took the opportunity to get rid of judges they did not like. An interference with the independence of the judiciary; and one that remains so, even though some of the judges (not all) who were got rid of had been openly partisan and political in their day.
If we ignore the principle of respect for impartiality of the judicial process, as we had done a decade before 1978, and now, again, in 1978, we do so at our peril and the ghost comes to haunt us again and again. If I may shift the imagery to that of a virus then we have to say the infection is likely to spread. Do we need or deserve that over and over again?
These few instances which I have given you implicate all major political parties in the country. [I don’t mean by that to say that everyone has done it and so it is alright. No it shows that we are fairly regularly missing our target]
The spoilers of yesterday are the protestors of today. The collaborators of today could be the victims of tomorrow. But the hard fact is, all of us must share the blame as a Nation. What these instances demonstrate is our failure to grasp what a modern Judge put very, very simply: that
“There is a big difference, between what we have a RIGHT to do, and what is right to do.”
A sense of justice and fairplay could have saved us a great deal of anguish and loss in the past. It will do so right now. These are only but a few instances in a national struggle for the independence of the judiciary for which some in this country have battled hard in the last sixty odd years. It is important that each one of us is on the right side of this line EACH TIME we have to choose, if we are to preserve our society for the future. We must try to do what is right. We need the confidence and the security that our leaders are trying to do the same.
Now look at the situation today, very generally and briefly:
Over two hundred years ago Edmund Burke rising to speak in Parliament, in London on the Impeachment of Warren Hastings said this: “An event has happened upon which it is difficult to speak, and impossible to be silent” It is not easy to speak on an “ongoing” process. In principle it is important to refrain from discussing the substance.
Let us leave aside serious Constitutional questions as to who has to decide what; that is to say, the boundaries between the Parliament, the Executive and the Courts as defined or not so well defined by the Constitution. To what extent we have a separation of Powers in this country, or we should have? What should the Constitutional arrangements be? We can’t go into these issues here; but let me say this : whatever the Constitutional arrangements, and, there are many different arrangements that are possible; in France, for example, every Past President is entitled to sit and vote in their highest Constitutional Court whether he was by training, a dentist or a lawyer. In the Tribunal I served myself, though we were elected by the General Assembly and appointed by the Secretary General, we could not be got rid by either. The judges could be got rid of only if all the judges met and resolved that one of us was unsuited for further service. Many, many, different arrangements are possible. But WHATEVER the Constitutional arrangements, there/can/be no discussion about the standards of conduct and the values which are applicable to the process —it is a part of the law- whatever the forum, wherever it is and whoever composes it. This obligation to use the right standards, and to conduct the process strictly according to those standards, is quite independent of the question of enforcement. But, it remains a proper legal obligation.
It has to be so if a Nation, any Nation State is to retain its dignity. If these standards are not satisfied you take away the dignity of a whole Nation. No one has a right to take this away from us or to humiliate us, by exposing us to substandard values that makes us look pretty naked in the world outside. And, the world outside does also matter a little from time to time.
If I were to couch what I am saying in slightly more technical terms we can call it, as I said as “Due Process”, It is due because it is both the fair and correct thing to do and, fairness is “due” to everyone big fish or small fish. True, “Due Process” is a convenient but relatively new expression coming from the West. But the obligation to listen with respect, to give a proper hearing, to consider carefully in the full richness of that valuable expression, is without doubt, a part of our culture as well. In a famous lecture albeit in a different context -the Buddha outlined this some 2500 years ago. And our judges have reiterated this as a part of our law and common heritage.
It is inaccurate, wrong and bizarre to package it for sales purposes in the country, as unpatriotic if we were to insist that these standards must be applied. There should be no doubt in any of us that they have been applied in reaching an outcome.
If the current crisis arises from an effort to enforce standards in public life-which in a sense it purports to be — if these efforts are to be persuasive and not to be treated with cynicism and disdain, - then that very process cannot he based on a denial of those standards.
There is a lot I can say about Due Process. I spent six years of my life writing judgments on its application in and to the United Nations. The Secretary General himself, and the United Nations itself, are legally bound, [must] comply with these internationally accepted Standards of conduct and be able to demonstrate that it has been done. It is not a question of power or “supremacy“of one group over another. Innumerable judgments have been delivered on this in all sorts of situations. All of us and Institutions as well do stumble; but the required and necessary reaction should be, one of “correction and compliance not, of arrogant and supercilious disregard.
Today no one, but, no one, however important, or by whomsoever elected, by the citizens of one country or by all the countries of this world, can feel free of the constraints imposed by these standards. Those who have the power and the authority must focus on those “Standards” and to get them right because they are a part and parcel both of our Public Law and of International Law.
Let me explain very briefly and in very simple language what “due process” must mean in any seriously conducted process to ascertain whether anyone is “guilty” or not of a charge: it is simply about being fair. It is not difficult to apply. Facts have to be ascertained, if necessary in stages. Charge sheets must be signed responsibly, not in blank, not on the run. The charges must be shown to be linked to the facts and the link must be even more closely scrutinised as the process proceeds. The process must be conducted in a deliberative and decorous way. Otherwise motives are suspect and the process becomes arbitrary, capricious, influenced by extraneous considerations, prejudiced, biased and an abuse of power. It goes without saying that it has to be impartial and that the person charged must be given all reasonable opportunity to show that the charge is not correct. What he has to say in defense must be listened to with care and respect. Accurate records must be kept. It does not require to be done in a highly legalistic way but it cannot be done without good faith and commitment these values of fairness I have spoke of. It is really not difficult at all. Generally it is clear to ordinary thinking people whether this has been done or not. There is no great magic.
Probably none of us here have the authority to ensure these things actually happen but at each point each of us can and must ensure that our views are voiced on the right side of the line and in the correct direction. Then only, and only then, could we even have a hope to leave behind a society for our children that is richer, more varied, distinguished fairer, and more stable less fearful, more dignified and progressive, Surely, that is what we want to do.
Let me end by recalling the words of a man I have admired from my youngest days —His name was Ludwig Wittgestein: he worked as gardener in the village I live just outside Vienna. Later on he was a teacher of little children and a medical orderly scrubbing the floors in hospitals. He had no degrees and needed none. He was born to wealth but owned only basic cutlery and furniture he used. He was a most distinguished philosopher in our time and fellow of Trinity College Cambridge. When he was asked how we could improve the world. He replied in two words: “ improve yourself ”. That is an answer which must resonate with this largely Hindu audience here today, even more than in the West. Our common culture requires us to look inside and make sure we have done the right thing, in the right way. And this requires us and our respected leaders to address issues with humility, not with an exaggerated sense of self importance.
Thank You for allowing me to address you and for your patience in listening for so long.
Sena Wijewardane-
Sena Wijewardene, former president of UN Appeals Tribunal
Tuesday, 22 January 2013
Sources from the Criminal Investigations Department (CID) say that SLFP Borella organizer and UPFA Colombo District parliamentarian Thilanga Sumathipala had played a key role in the campaign supporting the impeachment process in order to prevent his arrest by the police. Sumathipala it is learnt has allegedly committed financial fraud amounting to Rs. 263 million to the Bank of Ceylon.
