Dust refuses to settle on the retirement drama
The mild flutter first created by the premature retirement of Justice Mark Fernando from the Supreme Court bench has matured into a full-blown furore. A lot of people of course would say "mark my words, it was on the cards.'' It is a funny hour to say 'I told you so.''

People might wish to ignore organisations such as the Asian Human Rights Commission or the Civil Rights Movement when they issue statements about this recent turn of events in our Supreme Court. Ignoring those statements is a tall order now. But, it serves the people right, who ignored early warnings about the onslaught on the Sri Lankan judiciary, and waited for Mark Fernando's premature retirement to see that as far as the judiciary is concerned, the barbarians are not just at the gate, but are now well within the precincts.

A Sunday newspaper, in its Editorial not too long ago, referred to the current Chief Justice of Sri Lanka as an "excrescence in the system." Just like that. Today, with Mark Fernando's premature exit, there is apoplexy about a problem whose contours were identified a long time ago.

The facts are less than flattering to those who did not come out strong against the slow strangulation of judicial independence in this country at the proper time. Now, people who are respected at least for their seniority such as H. L. De Silva and lawyer Nehru Goonatilleke (Chairman Kalutara Mahabodhi Trust) are at the forefront of a movement that seeks to make people aware about the fact that there could be much more than meets the eye in the matter of the premature retirement of Justice M. D. H. Fernando.

H. L. de Silva may have only signed a petition that sets out the services rendered by Justice Mark Fernando. But, there are others who signed a petition that calls for the appointment of a Select Committee to look into the circumstances of his retirement, and Nehru Goonetilleke was one of those who not only signed that petition but actively campaigned for its success.

This last petition was signed by very prominent persons in the legal arena, and also by several civic collectives such as Avadhi Lanka, citing the mysterious circumstances in which Justice Fernando (who has the highest number of judgements for any Sri Lankan judge cited in Commonwealth Human Rights Law Digest) was kept away from the Bench in the vast majority of constitutional cases heard in this country for the last five years.

There is also the fact that Justice Fernando was mysteriously deprived of his place in the Judicial Services Commission, even though he is the senior most judge of the Supreme Court. He was also kept out of foreign assignments, and not nominated for judicial parleys abroad.

But as the story unwinds - - and more organisations such as the Asian Human Rights Commission etc., get involved in the issue of the Mark Fernando resignation -- there is also the counter punch. Desperados are pulling out the trump card of the hopelessly exposed. It is the one that's generally pulled out by the fundamentalist goondas and jingoists on the peripheries of society as a last resort. It is called the religious card.

The canard that's being planted carefully and in selected locations in the legal firmament is that somehow, Justice Mark Fernando's premature retirement is good for the "fight against forced religious conversions''! This logic is an insult to a Judge who has written more judgements on Buddhist ecclesiastics than all of the sitting Judges of the current Supreme Court put together.

M. D. H. Fernando is a Catholic and to somehow paint the gathering furore about his retirement as a Catholic conspiracy is indicative of the puerile quality of the arguments that are adduced by people who know the real unpleasant reasons for Mark Fernando being eased out of the Supreme Court. True, he left of his own volition, but the creation of the conditions for his leaving are well mapped out in the petition that requests a Select Committee to go into the reason behind his departure.

Now, in the matter of unethical conversions, the Sri Lankan Supreme Court has made judgements that are protective of the state religion. That's constitutionally mandated to a great extent - - though there can be arguments over the matter of interpretation. Does the freedom to practise ones religion grant the freedom to convert wily-nilly, particularly in a global context of monotheistic cultural imperialism? I think not.

But what has all that got to do with Mark Fernando, or the larger question that hangs about the credibility and the independence of the judicial system? Nothing, because Justice Mark Fernando is not tainted by any judgments that can be seen as being against the interest of the state and the constitution with regard to the matter of religion -- and of course he is free as all others are in terms of Article 14(e) of the constitution to practise any religion that he pleases.

So it is a classic Goebbelesian tack. Repeat the untruth many times (that "Mark Fernando is an instrument of Catholic action'') and somehow he is deemed unfit for the Supreme Court of this country, and hopefully the whole can of worms raised by his premature retirement could also be put to rest along with the rest of the entire controversy.

But putting the worms back inside the can, can be more difficult than getting the toothpaste back in the tube. At the risk of sounding needlessly repetitive, it needs reiteration that the real issue is not Mark Fernando -- but it's his resignation that got the genteel tribes moving. Somehow, it looked like a Catholic conspiracy - - though Holy See and the heaven itself forbid it is not -- when so many people who were in a stultified silence about the wreckage of the Sri Lankan judiciary, suddenly came out of the woodwork and said enough is enough.

It is in regular style. Sri Lanka needs a pivotal event to take place for the apparatus to get moving. As a result the whole façade has to look tottering, and then the people might consider peeking out of their comfort zones. The truth that judicial independence is in ruins was obvious from all that had gone before - - an IBA report, several communications from the Asian Human Rights Commission, and of course unequivocal pronouncements from the UN Rapportuer for the independence of the judiciary. Not forgetting of course an impeachment motion that was only shelved because an election intervened

All this should have at least convinced people that there was a case at least to inspect and probe into this whole festering wound. But not a cat mewed. Now, Mark Fernando has resigned - - and drat it -- the pious who have come out of the woodwork for a good cause of course, are open to the accusation that they are only interested in one individual, who is an instrument of Catholic action at that. While it serves the exalted in the legal profession right that they waited all this time to realise that the judiciary is well and truly under threat, it still does not take away from the fact that the problem in the judiciary is so severe that it doesn't really matter whether the exalted have been sleeping on it.

What matters is that the legal profession and the polity at large should be galvanised - - over the carrion of a Bar Association which is for all intents and purposes long dead and buried. If the Bar Association is only moribund, of course, it can wake up and probably respond to this elegy.

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