NO SIR -- LAWYERS AND JUDGES CANNOT TAKE THE LAW INTO THEIR OWN
HANDS
Neither lawyers nor the judiciary can take the law into their own
hands. But, in Sri Lanka, what should be apparent as to be axiomatic,
seems to go by the board.
Some lawyers say that they should have the right to determine that
the Judiciary should be the last word in impeachment hearings against a
Judge of the higher courts. They make newspaper pronouncements to this
effect, and launch a massive media campaign, and also get onto the
streets -- not mentioning that they also convert Hulftsdorp into a
Lipton’s circus.
Deputy Speaker
Chandima Weerakkody |
Attorney-at-Law S L Gunasekara |
But anybody entertaining a differing point of view on the matter is
immediately cast as a ‘hate’ campaigner, and worse!
It is not the first time that this sense of entitlement of the lawyer
community has become so apparent. It is as if ‘we are lawyers, we should
be entitled to all the privileges of making and breaking laws, at our
own convenience!’.
This is obscene. Now, this cabal of lawyers say that those who offer
any other viewpoint on the impeachment, are in Contempt of court. This
is despite the fact that Parliament has pronounced that Members of
Parliament who respond to Appeal Court notices over the PSC proceedings
are in contempt of the Legislature.
Has there ever been a more puerile effort then, to show off the black
coat, to say that we not only argue on the basis of the law, but we
‘possess’ the law as well?
These are the same types of lawyers who flagrantly flout the law, and
then dare people to take them to court because they think that they are
in possession of the law, and would therefore be able to get away with
murder. The Voetlight incident is one such example. This writer shall
not elaborate, as those who are aware of the issue would immediately
draw the necessary connections.
Opposing view
The law however, is larger than the aggregation of all the lawyers
and all the judges in Hulftsdorp. Nobody possesses the law by virtue of
wearing a black coat. Therefore, those Lawyers Collective (more NGO men
than lawyers; neither is it a ‘collective’ that is in any sense
representative ..) black-coats who say that theirs is the only stand
there is on the impeachment and that anyone else who takes an opposing
view is a ‘hate campaigner’, have to learn that they need to co-exist
with greater powers than them.
One of these goes by the name of The Executive, in case these people
haven’t heard. The other goes under rubric of the ‘Legislature’. There
is still another which goes by the description of Fourth Estate.
All of these separate forces combine to make up a democratic polity.
The lawyers are but players in the judicial establishment --- and it is
not as if Judges belong to them, or the constitution is their own
document, because they think that being in Hulftsdorp somehow gives them
the primacy over everything that happens in the legal arena.
The Judiciary has in the meantime been told in no uncertain terms
that their writ does not hold on everything, and MPs who flout that
constitutional dicta are condemned to do so under pain of being hauled
up for contempt of the Legislature! None other than the Deputy Speaker
of the elected Parliament of Sri Lankan asserted this in statements
issued to this and other newspapers.
Impeachment charges
Now, what gives some lawyers and some judges the notion that they
could fly in the face of the constitution, and constitutionally mandated
roles played by other arms of State (… Edmund Burke famously coined the
term Fourth Estate) in what seems to be a unique Sri Lankan proclivity?
Clearly, judges who are being investigated on impeachment charges
have no recourse to judicial review in the United States for instance,
and this has been settled law in the State of Michigan for example. It
is obvious that no polity can function if the Judiciary constantly keeps
overriding the Legislature, in areas that are clearly turfed out
constitutionally for lawmakers.
Ballage wede, cannot be done by the booruwa. The Adhikaram’s and the
Nadukara Hamuduruwos of the days of the Sinhala kings would have made
this clear to the lawyers of today!
Parliamentary proceedings |
What is at the root of this lawyers’ sense of entitlement, is the
fact that lawyers in most countries represent privilege. This has been
the case in the United States as well; and courts too through judicial
review, have kept privilege -- and repression by the privileged classes
-- intact through instruments of court. Enlightened legislation on
racism for instance would have been a reality in the USA centuries back
if the Judges did not work on behalf of the privileged classes through
court.
But, the tendency of the lawyers to think that they can use the black
coat as a badge to evade the law is long gone in the United States. Not
so in Sri Lanka, it appears.
Manipulate law and constitution
Supreme court complex |
This is probably because the legal system replete with laws delays
etc., works heavily against the interests of the litigants, and in
favour of the lawyers, who therefore feel as if they somehow possess the
power over life and death or the futures of their litigants.
The other aspect is that Hulftsdorp has still not been wrested away
from those who think that they are entitled to be in power, and that
anybody else in power is there by accident. It is this sense of
entitlement that is in the main, the propellant that gives lawyers the
feeling that they could somehow manipulate the law, and the constitution
to their own benefit.
The issue of the CJ’s impeachment can be cut in many ways, but
despite what S. L. Gunasekera in his naivety thinks, this too is an
issue of privilege, in which a privileged branch of the State, the
Judiciary and its apparatchik lawyers - - want to maintain their
position of privilege through which, as in the early Unites States, they
could rule the country almost by default. Fortunately, the country does
not stand for it.
The lawyers cannot show their black coats and take the law into their
own hands, thanks to a Legislature, and a section of the media with a
spine! |