| Plus |
|
|||
| Mark
of honour and justice To those who have eyes to see and ears to hear, it is obvious that our nation is plunged into a social crisis marked by a collapse of public and private morality. Writing to the Island (April 16, 2003) an elderly citizen M.N. Mathmaluwe lamented: "In our old age it has been our misfortune to witness our country's decline all round: its economy is in ruins, the fabric of social morality has collapsed, professional ethics are in the throes of a massive erosion, common decencies in human relations have virtually disappeared, the whole land is engulfed by a tidal wave of unprecedented crime - the list seems endless…" What is doubly tragic is that the very successors of those to whom Jesus and the Buddha entrusted the dissemination of their Noble Teachings seem inured to the immorality rampant around them. Every now and then a few lights shimmer in the encircling dark, offering solace that the moral sensibilities of our society are not entirely deadened. This is evidenced by the sense of dismay, even distress, which filled many leading citizens when news broke of Justice Mark D.H. Fernando's decision to retire prematurely from the Bench of the highest court of law in the land. I say 'many' with some reservation, for the legal and judicial fraternity have long ceased to feel outrage when the repute of their high profession has been brought to discredit by miscreants in their midst and by incursions into their independence by politicians in power. Public
concern These could be perceived as public humiliations of a judge of outstanding erudition and irreproachable probity of character. These qualities may have been the reason why Justice Fernando aroused the envy and rancour of lesser men in the profession and the disfavour of politicians in power. For example, Justice Fernando was a member of the Council of Legal Education the legal professional body that manages the Law College. After the expiry of his first term of office, he was not re-appointed by G.L. Pieris, who was then the Minister of Justice. He was not appointed Chief Justice (CJ) in 1999 though he was next in seniority and his appointment had been recommended by the outgoing CJ, the Honourable G.P.S. de Silva. When the three senior counsels solicited support for their petition the response was overwhelming. At the time of writing more than a thousand concerned citizens had affixed their signatures to the petition. The list is impressive. Among those who signed the petition are fifty senior bhikkhus, as well as some Christian prelates and clergymen. In the dismaying situation of an effete Bar Association riven by personal and political rivalry, more than three hundred outstanding lawyers have taken a stand and signed the petition. Other supporters include human and civic rights organizations as well as professionals and academics across the whole spectrum of avocations and disciplines. The question now is: What will the Prime Minister do? Will this petition too be flushed into the waters of the Diyawanna, like the motion to impeach the Chief Justice? Healthy
democracy The Legislative Branch has fallen into disrepute because of the behaviour of politicians who blatantly flout the laws of the land in order to be elected and to make laws for the rest of the citizens. They come begging to serve the people. Once elected, they lord it over the people, battening on wealth and luxury at the people's expense. School children are taken to parliament to see how their democracy works. More often than that they are compelled to witness crazy demos which undermine whatever discipline teachers hope to instill into their pupils. Some parliamentarians have displayed a dangerous proclivity to pyromania. Others have and continue to act like hooligans. Outside parliament, they act as if being elected to the legislature place them and their breed above the law. In such a state of anarchy, the last recourse of the ordinary citizen is the Judiciary to seek the vindication of elementary principles of democracy and justice safeguarded by law. But what if this illustrious branch of government too has become tainted and its credibility compromised? All the more so because the UNP when in opposition tabled a motion to impeach the Chief Justice during the last parliament. The UNP precipitated a dissolution of parliament and after it was returned to power has conveniently relegated the motion to limbo. Playing politics with the Judiciary is to subvert this august branch of government. Either the CJ is guilty of the serious charges brought against him in the motion or he is not. In either case, letting the affair hang unresolved tarnishes the image of the entire Bench. In such a murky context the Honourable Justice Fernando has done much to sustain respect for the Judiciary. The Law by its very nature is a conservative social institution. It is a reflection and a legal codification of a given society's dominant if not commonly shared ethical values at a given moment in time. Anachronistic
impositions Justice Sir Owen Dixon of the Supreme Court of New South Wales observed: "The technique of the common law cannot meet the demands which changing conceptions of justice and convenience make." It is heartening that public spirited lawyers concerned with the common weal have sought to enhance the scope of the law even at the risk of jeopardizing their careers, especially when they appear pro deo on behalf of the socially weak and down trodden. This is where the judgements of Justice Mark Fernando have enriched humane jurisprudence in this nation. They have thereby also contributed to strengthen the moral fabric of our society. An honest review of his landmark judgements show that they have been delivered without fear or favour or with an eye on striking deals out of court. In the imparting of justice he has been no respecter of persons, their wealth, social status and influence or whether the party seeking legal remedy is in power or not. In Sri Lanka's meretricious meritocracy, being corrupt without shame and fear seem to be a qualification for high office. Among the demoralized 'little people' a pervasive fear of suffering injustice has shaken the belief that justice will prevail. The shabby treatment of a man of Justice Fernando's calibre, lays bare the decadence of a society where cherishing elementary virtues of equity, honour, decency and integrity have become social handicaps. (Dr. Nalin Swaris, the writer, is an associate member of the Asian Legal Resources Centre and member AHRC.) |
||||
Copyright © 2001 Wijeya Newspapers
Ltd. All rights reserved. |
