Hulftsdorp Hill

5th September 1999

Slouching towards Gomorrah?

By Mudliyar

Justice Minister G.L. Peiris addressing the gathering at the rededication of the American Library in Colombo onAugust 31 said the procedures adopted in the United States for the appointment of some public figures were, in his view, too intrusive.

He said that what was inherent in these procedures was the lack of a sense of balance. He cited the example of the appointment of Robert Bork to the US Supreme Court and said that Bork was one of the finest legal minds produced and nurtured in the United States. Some of the views which he had publicly expressed were held to be controversial and his appointment was assailed on that ground.

Prof. Peiris said: “People of the intellectual calibre of Robert Bork were entitled to comment on public affairs, and if the intensity of involvement in public issues being debated is to be held against these persons, the danger was that nondescript personalities become more acceptable, mainly because of their silence or their inability to comment perceptively on critical issues of public importance. What is essential therefore was the intrusion in future of a sense of balance, of equilibrium into these procedures.”

Who is Robert Bork? What is his relevance to to-day’s simmering complex situation in Sri Lanka? Why should Prof. Peiris remind the distinguished gathering of him? We must not forget Prof. Peiris is the Minister of Justice. He will be one of the key players in the appointment of the Chief Justice to the Supreme Court.

Every weekend paper last week allocated a lot of space to discuss the speech made by H. L. de Silva, P.C. at a seminar organized by the Human Rights Committee of the Bar Association. The “Sunday Island” wrote an editorial about it. It seems that more than the Bar, the media are concerned about the dignity of the judiciary.

September 15, 1999 is an important day for all those who value and cherish independent judiciary. Prof. Peiris has maintained a stony silence about this important event. But suddenly he remembered Robert Bork, who, like Sarath N. Silva, was the Attorney-General (acting), a judge of the Court of Appeal.

His nomination was rejected by the Senate. The campaign against him was launched by the media and liberals. Like in the case of Bork, there has been severe criticism directed at Mr. Silva. But the allegations against Mr. Bork were different from those against Mr. Silva. There was not a sniffle of allegation about the manner in which Bork conducted his affairs as the Acting Attorney-General. But his views which were highly conservative in nature, portrayed him as a person who was unsuitable to be appointed as a judge of the Supreme Court.

Prof. Peiris has not got drawn into this ongoing controversy. He has earned the reputation of being one of the honest ministers. In Parliament, the government’s most virulent critics such as Rajitha Senaratne and Sarath Kongahage have praised the minister for his integrity and honesty.

The Chief Justice is to be appointed by the President. It is the duty of the Minister of Justice, irrespective of his private views and friendships, to advise the President on the appointment of a person most acceptable to the majority of the members of the profession. He has to seek counsel from the most respected members of the profession who are independent and have been retained by the PA to lead its battles in court.

Prof. Peiris has another important segment to satisfy. That is the constituents of Moratuwa and that of the Colombo district where a fair percentage of people are Catholics. For them adultery is an unpardonable sin.

Was the reference by the Minister to Robert Bork made, as he was the Acting Attorney-General and the Senate did not confirm his appointment to the Supreme Court? Or is the Minister trying to say that as in the case of Robert Bork, the present Attorney-General is attacked without any basis? Or is he trying to say that as Attorney-General Robert Bork expressed his views about sensitive political issues, earning the displeasure of those who opposed such political leanings?

Bork’s new book ‘Slouching Towards Gomorrah: Modern Liberalism and American Decline’ is a crusade against declining American values and morality.

Bork expressed conservative views on liberalism later when sexual permissiveness became the driving force of the young and the derelict, the hippies and yuppies who revolted against the puritanical, conservative, Victorian attitudes of their parents.

Judge Bork as a Judge of the U.S. Court of Appeal posed the question “Is America doomed?” and he said one of the reasons for the doom was “Well, I think the thrust of liberalism has always been the same, but for a long time it was contained by forces such as religion and common morality and so forth, and when that was true, liberalism was a wonderful philosophy and a wonderful system to live under. But once the constraints such as religion and morality begin to decline, as they have, then liberalism becomes radical. It becomes radical individualism on the one hand and radical egalitarianism on the other hand”.

Bork was the Solicitor General and the Acting Attorney General of the United States. From 1982 to 1988 he was Judge of the US court of Appeal. In 1987, Judge Bork was nominated by President Ronald Reagan to the Supreme Court. The Senate did not confirm the appointment.

Prof. Peiris may have found many similarities between Bork and the Attorney-General Sarath Silva, but one of the major differences is Bork’s views on religion and morality.

Though there were forces that kept on pushing the American people towards a more permissive society based on liberalism, he openly expressed his opposition to them. His speeches were in defence of an extremely conservative thinking, based on traditional family values. But the more liberal, more socialist democrats found that he was too politically motivated and was unsuitable to be appointed to the Supreme Court.

To my mind, Bork seems to be the last person who would be accused of dishonorable conduct, as explicitly expressed by Ranjith Abeysuriya at a seminar conducted by the Bar Association on the appointment of Judges. “Please do not think I have been irrelevant to the subject ‘Independence of the Judiciary’ because Judges are lawyers.

“So, if a particular Judge to be appointed is unworthy of the standard of a lawyer, obviously he has to be discarded from being considered as a Judge. An attorney-at-law must not conduct himself in any manner which would be reasonably regarded as disgraceful or dishonorable as an attorneys-at-law of good repute and competency, or which would render him unfit to remain an attorney-at-law, or which is inexcusable such as to be regarded as deplorable by his fellows in the profession.

“Please, those of you who have not read this, read it for yourself; I ask particularly the, legal fraternity. What is considered disgraceful conduct? Now that is not capable of definition what right-thinking members of the profession would look down on a particular conduct as being disgraceful or dishonorable, such a person doesn’t deserve to be a lawyer, and therefore obviously doesn’t deserve to be a Judge. Or if he is guilty of conduct which is inexcusable or should be regarded as deplorable by his fellows in the profession, that is conduct which is outlawed.

“Section 61 of the Rules of Etiquette for Attorneys-at-Law says an attorney-at-law shall not conduct himself in a manner unworthy of an attorney-at-law. Now those are concepts we must be aware of when we are focusing on this problem that there are certain standards which have been recognized as sine-qua-non to be a member of the profession.”

Most members of the Bar who did not raise a whimper about the exposures made by the media with regard to the conduct of two judges, were soon to take offence when some references were made about the inaction of the Judicial Service Commission with regard to the punishment they should have imposed on the errant judges when the committee appointed by the JSC came to the conclusion that the complainants had proved their allegations.

Unfortunately the entire burden of exposing this scandal and placing the evidence before the committee was carried by the Editor of a tabloid newspaper.

Instead of organizing a campaign to eradicate this mess from the judiciary, some members of the Bar were trying to pick holes in the manner in which the tabloids exposed this scandal and the language used by them.

When these matters were brought before the members of the panel this is what H.L. de Silva said:

“Well, if he makes the communication in respectful language stating the facts, I don’t see any objection to that. He must not scandalise the Court. But even in America for instance, the whole concept of contempt of court has undergone revolutionary changes. And you are permitted to criticise the court in language which we may consider quite undignified in the interests of truth. That is the essential thing. What are the true facts? And if a complainant has no other remedy, I think he is quite entitled to bring before the public the predicament in which he is.”

Justice Bhagawati said: “In my view, public exposure is extremely important and the sunlight of publicity is the greatest disinfectant. And now, you see as was pointed out by Mr. de Silva, in America; the law of contempt of court has undergone a revolutionary change, it’s nothing like scandalizing the court. And even in U.K., in the Spycatcher case, one of the judges of the House of Lords who gave the dissenting judgment, was pictured in ‘ The Times’ with his head upside down. And no action was taken at all.

“The whole idea is that there should be complete exposure of any thing which is wrong. Of course, it must be done in temperate language, it must be done respectfully. But criticism is absolutely essential if the judges are to walk on the right path; if they err, let the public point out that they err. So, I personally don’t think, and I’ll give you only one instance.

“When I was the Chief Justice, one judge at midnight gave bail to two industrialists. Now, next day the paper carried the news ‘Mid –night Bail ’ and criticized it. So, the judge was very angry. He said ‘Chief Justice, we must take action.’ I said ‘no’, if it’s wrong, let’s ignore it. And if it’s right, let’s correct ourselves. So, what is wrong with it. And ultimately, the glare of publicity is absolutely essential. And that is the only way in which our errors, judges’ errors, can be pointed out. But, as I said, it must be done respectfully. And therefore, I personally welcome public disclosure.”

Let us re examine our moral code and learn from the foremost conservative scholar in US, Justice Robert Bork who our Minister was pleased to refer to: “And the ‘rough beast’ that the visionary poet Yeats foresaw in 1919 is now a monster of decadence, a plague several generations in gestation, and we, as a nation, are now slouching, not towards Bethlehem, but towards Gomorrah, the biblical city burned to the ground for the sinfulness of its people.”

Of Mr. Clinton, who was his one time student, Bork said: “Thirty years ago, Clinton’s behaviour would have been absolutely disqualifying. Since the 1992 election, the public has learned far more about what is known, euphemistically, as the ‘character issue.’ Yet none of this appears to affect Clinton’s popularity. It is difficult not to conclude that something about our moral perceptions and reactions has changed profoundly. If that change is permanent, the implication for our future is bleak.”

Even though our moral perception has undergone revolutionary changes let us jealously protect our Court from slouching towards Gomorrah and redirect it towards Bethlehem.

The Jungle Telegraph

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