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More Obiter

Jul 11, 2011 12:24:36 AM - thesundayleader.lk

By Ravi Perera

The President and his legal advisor

The appointment of Asoka De Silva the retired Chief Justice as a legal adviser to the President has been commented on sporadically in the newspapers.
One would have expected   much more wide-ranging discussions,   particularly among the legal fraternity on this somewhat   unusual appointment. But as it happens often in this country, general indifference, mundane commitments and cynical self-interest seem to have muted the otherwise loquacious lawyers. Making money is taken to be the sole purpose of the professions today, the rest being mere “obiter dictum”,   a legal term for  matters not germane to the main issue.
To the average man on the street in this country, an appointee to a high office and a Presidential   appointment, is that he is only reaping the fruits of his good deeds in the past. There is nothing more to it than that. It is not for the humble man making a precarious living on   our dusty   streets   to question the order of the universe.
The system of government  we now see all around us was unsought, in fact intrusions, which began with the venturesome Portuguese, were introduced in dribs and drabs during the ensuing five centuries. These include a written constitution, the right to vote, the parliament, the judiciary, the police force, etc. Prior to that, whatever   could be considered State power in the kingdom was concentrated in the person of the King. The ancients   had no time for arguments which called for a division of power. The King made the law and then adjudicated accordingly. Of course if any amendments were needed to his  law the King did not have to   waste precious time looking for two thirds, because he was three in one!  The Europeans on the other hand, never satisfied with the existing order thought up   all kinds of new things including the idea that State – power should be divided between the executive, legislature and the judiciary, arguing that it is in the interest of all concerned.
It is as a result of this, that we had Mahinda Rajapaksa as the head of the Executive and Asoka De Silva as the head of the judiciary at the relevant time. The architect of our present constitution was J. R. Jayawardena, a dabbler in constitutional theories, who   claimed that his constitution brought together the best of both the American and the French constitutions. Both these constitutions   have the institution   of an   elected    presidency, with executive responsibilities, as a cornerstone. We of course cannot say how well J. R. Jayewardena understood, in letter as well as in spirit, the constitutions of those far-a-way countries. Among those who care about   such matters in this country, the J. R. Jayawardena constitution, particularly its concept of the executive presidency is reason for consternation.
Obviously there is no law adjuring a retired judge from serving the President as an adviser. Being a good citizen, we are sure that   even without a formal appointment, his services would have been   available to the country, if such a need ever arose. There are many retired judges who are serving in various capacities today. It can be said that they are now retired from judicial office and yet being in good fettle there is no harm in keeping themselves economically productive. The appropriateness of such post-retirement employment is a matter mainly concerning issues of propriety and form and can only be assessed case by case.
In our present scheme of things the adviser to the government on legal matters is the Attorney General. Through the years a lot of foreign aid in the form of scholarships and infrastructure has been directed at this department in an effort to build up the capacities of the institution.
It is a reality in our country that   the Presidency  is a very political office. The President  is a leader of a political party and is very much a partisan politician. In very many cases the superior courts are called on to adjudicate  upon   the actions of his government, his political supporters and even policy in relation to the laws of the land.
A fundamental  tenet of the judicial system, again based mainly on British judicial traditions, is the independence (and the impartiality) demanded of those who judge.   A person sitting in judgment will not only have no ‘interest’ in the matter before him but   will also not  receive, in any manner, before or after, any consideration or benefit from a party.
It is rarely that a judge comes to be considered an “expert” in the law by his mere experience in that position, in the same way that an umpire does not become   an expert in the game of cricket by the number of hours he has spent in the middle. ‘Expert’,   is a title not to be lightly bestowed, and must be distinguished from a senior practitioner of the law, in whichever capacity. If exceptionally talented, a judge   may through the years acquire a considerable amount of knowledge on various aspects of the law. But that is not to say that his opinions are irreproachable.  All advanced legal systems have recognised these limitations and sought to minimise unfettered  judicial power as well as  the discretion of a judge by putting in place appeal processes, juries, and panels (rather than a single judge), the concept of precedence and of course  the all important  right to a  public hearing/media coverage.
Taking  a broader view of what is happening around us today, one is struck by the naïve optimism of those who thought that systems and ideas developed in countries and climes far removed from us could thrive in this very different environment.
Historically, there was no concept of pleaders here, much less an empirical approach to medical science. But now having adopted these imported systems, we would not like to lose the whole thing again. The alternative is too absurd to even contemplate.
At the core of any  society are the values it chooses to live by.  Sure, in any society there will be many who fail to live up to them.   But there could  be no confusion as to the values a given society   strives to achieve or looks up to. There are corrupt politicians and brutal policemen in the UK. But once found out their careers come to an abrupt end if not worse. On the other hand here   in Sri Lanka, and increasingly so, it is becoming difficult to determine what the norm  should be.  Those who should know better have repeatedly let the rest down. When  the centre cannot hold, things fall apart.
In such an environment whatever we say on such issues may be mere obiter dictum.