The Impeachment of a CJ; or Making a Nail Official

The most daring contension of the day is as to whether the Legislative or the Executive should hold the ultimate word of authority. Many would agree that this, as a definition, is no novelty at all; for, from time to time the same impeachment patterns were seen in Sri Lanka over the past twenty years or so, and the current Chief Justice is no lonely sufferer in facing the governmental wrath. Recent history informs us of at least two Chief Justices who were faced with similar gauntlets – one of them actually stepping down from office, prior to the inevitable.

The occasion of an impeachment or an expression of no confidence over a CJ is a juncture to undo several myths and euphemisms with which we mist our acceptance of the world. One such all encompassing statement is to do with the Law and the Constitution. These aspects, widely regarded as the bar of civil society and national exchange are specifications in whose guide every person (except the President) is equal and the same. With such grand objectifications we are taught to naturalize a “sterilized” legal establishment, which is the ultimate arbiter of all things. This is most certainly worthy of praise and commendable as an ideal, but, the court processes are seldom free of corruption and of infiltration by vested agents.

Cartoon from the Guardian

The Law enforcement mechanism is of a wider reach and the bench per se, in that respect, is more a cog that oversees the implement of justice. But, the outposts of this machine are under heavy political patronage, as are the codes and specifications that guide the wheel. For instance, the Constitution is a political document and once enforced all citizens are bound to stand by it, without exceptions. But, the constitution need not necessarily be an egalitarian code either (and it most certainly is not in many cases, including ours). The very system the law is set out to ensure, therefore, is a structure invested with heavyduty political need (or greed). While ensuring an advantage at the formulation point, political patrons gain further mileage by being in a position to influence or subdue the officers in institutes such as the Police: members connected with the law enforcement process.

It is with such a reading that the current tussle between the Chief Justice and the oligarchical tendencies of the government in seat has to be taken into account. The Chief Justice, then, would translate as the highest priest of the highest authority (in documentation) of the country. The government, headed by His Excellency the Executive President, would be the one power unit that could, technically, take the CJ to task. But, it is constitutionally set out that the Caesarian Executive can not be probed into – while in office, or otherwise. These pronouncements underline the fragility and delicateness of our legal framework; and as to how out of proportion the distribution of power in the face of the Executive Presidency is. The impeachment at hand is a clear case of a “political challenge” to one whose recent run has not been savoury to the governmental agenda. The heel and kneel policy advocated by the State, it is implied, should apply to the judiciary as well.

A Handagama film

In the logic of the political class, there is no utilitarian value in an agent who cannot safeguard their own ulterior party interests. Such a rigid evaluation can be justified, for the politician enters the fray but to assume the cookie of civil authority and a blank cheque of privileges. Therefore, the expectation in the compliance of all quarters is not a twisted dream for the megalomaniac. This is especially so when your hold of power is backed by a clear majority representation and the votes of a purchasable populace (both literally and metaphorically). In the same way the journalists, the students, the teachers, the workers and the trade unions are expected to be in agreement with the government, that wish list naturally extends to absorb the judiciary as well. This is not unnatural though unbecoming, for the purpose of having power is to maximize it and to use it to one’s ends.

Several years ago, Ashoka Handagama’s film “Aksharaya” was banned for its “contemptuous content” which disfigured the solemnity of the judiciary. The film, as I recollect, relates to the domestic life of a judge; also highlighting an exchange suggestive of sexual intimacy between his wife and child (the child is a minor). Our safeguarding of the judiciary is best expressed as such; whereas, on a less aesthetic note, ambitious politicians have always attempted to toy with its integrity, as they continue to do so. The intimidation of judges, beat ups of bureaucrats connected to the judicial department, as well as ready offers of governmental patronage have been no strange news before and since Handagama.

Following the impeachment motion, the Chief Justice was reported to have ordered the accelerated settlement of a number of child abuse cases. Every time a child is abused the future suffers.

[Written for the Nation]


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