Stunning silence: A postscript

At last, the silence has been broken. I am glad that some people, but yet not the concerned professionals, have spoken up. I am thankful to all of them; Hugh Karunanayake and Amila K Perera.and others who had heard my voice. I am happy that somebody did care to respond, though they may not probably be legal professionals or the OPA. Still the general apathy is disconcerting. I am responding to the letters, not to score a point, but to clarify my thinking. Perhaps, I might not respond again. My effort was to bring this to the public domain.

First, Ms. Anne Abesekera mentioned that her friend at the wedding said that if she spoke up, her "neck would go". She could inform her that my neck is still intact! Also that of our editor who lambraces regardless, any thing that appears wrong; unless of course, her neck was of some special value to the powers that be. Rather than cowardice, I think it is more hypocrisy and self interest. Such types do not speak up unless it affected them personally. They wouldn’t speak up for others. At the most, they will leave the country if it becomes intolerable. They say such things at elite social gatherings, to digest their wine and good food. There is also dishonesty in that they engage in such loose talk to throw mud at the government, which they don’t like. It was Burke who said that "all that is necessary for evil to thrive, is for good people to do nothing." So I salute every body who responded.

In regard to the two points raised by Mr. Karunanayake, yes I was aware of the position both in the US and Australia. But I believe, in the US and even in Australia, as far as I know, the legal and constitutional system itself is different. So it may not be a correct approach to pick up this single thing and say that because it was adopted in the US and in Australia, it is all right to do the same thing here. I do not know whether such piecemeal adoption is the right thing to do. For, all what is done in these two countries, is in two different systems. In fact I believe, subject to correction, even the Judges to the highest courts are politically appointed in the US. So, it is a whole different tradition. Merely because, the US and Australia have adopted this form, I do not believe it is the right thing for us. It is a whole different ball game here. They have not been the colonies of the British in the way we have been. Democracy is yet an unfamiliar tool in our hands. We tend to take short cuts and sometimes even cheat. I do not know whether all other modern states too have thrown overboard, Montesqui’s theory of separation of powers and brought the AG’s Department under the direct purview of the executive President. Here, I would like to adopt the norm spelt out by our famous Sinhala saying:" Pena yana muwan deka, nodamaw neluu palaa" ( do not throw away the green leaves you plucked, on mere seeing the runaway deer). I personally think it is a matter that should have received careful consideration. After all, we have had it in our legal tradition for over two hundred years and it was functioning fairly well despite abuses.

An important aspect is the power of the Attorney General to take over a private plaint or withdraw any prosecution before courts or intervene in court proceedings, at any stage.. Some action under this provision has been dubious. This is one area where political authority could abuse. I believe this provision was included by the British dishonestly to be able to have the final say in case things get out of hand. If perhaps the new Constitution could do away with this power, even the political authority wouldn’t be able to abuse wherever the AG’s Dept may be. Such changes will be in order, rather than throwing away the baby with the bath.

Mr. Karunanayake hits the nail on the head when he says in the Australia’s case that "In these two countries, (US and Australia) the position by and large proved to have functioned with integrity and there has been no question of interference with the judicial system." The absence of this is exactly the problem in this country, both with the governments and with some of the Attorneys General in our country. Hence, the need to keep him away at least structurally, from the reach of the Government at least nominally, so that any obvious interference could be objected to by an alert citizenry, which again is a rarity these days where people are more concerned with their necks than with their country. If the 6000 soldiers and policemen who sacrificed their lives in the terrorist battle too thought of their self-preservation more important, we would not have been able to save ourselves from scourge of terrorism. As pointed out by Amila K. Perera, there are presidents both present and past who have abused authority. But he was able at least to talk about this because the AG was under a different ministry. Interference became obvious and a matter to talk about. But if the AG was reduced to a minion under the President, he could treat him as one of his domestics!

The general response was that the president could interfere with the AG where ever he was and therefore it really did not matter whether he was under the president or under the defence ministry. My contention is this. Men commit rape. It is a fairly common occurrence in many societies. For that reason, do we remove the offense of rape from the Penal Code and place it under Children and Young Persons’ Ordinance, because where ever the law is placed, women are still raped, however heavy the punishment for rape is? True, the president with his overarching powers could abuse anything, but because of that, do we place anything and everything under the president for that reason? It is a constitutional concept that ‘King can do no wrong" But the English history is full of instances where the king had been at fault especially in conflict with the people and the Parliament. For that reason, did the British abandon that concept?

Would we just keep mum when the trivializing of such a respected office as the Attorney General is being desecrated, as decent dignified citizens of this country? After all, no one is perfect. Nowhere could we ask for perfection in these matters especially in the context of the generally dishonest country like ours. But could we afford to look on with resignation at losing even the semblance of independence of the judiciary? What are we living for? What kind of country are we leaving to our future generations? What kind of people are we? Do we deserve a decent country if we do not even lodge a protest when we are about to lose something precious to our freedoms?

Gamini Gunawardane

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