I do not know whether there’s as much drama in our courts as is portrayed in the 1979 US film ‘…And Justice for All’ directed by Norman Jewison for which Al Pacino, playing Baltimore defense attorney Arthur Kirkland received an Academy Award nomination for Best Actor.
I do not know, but I am certain that the following individuals would: Upul Jayasuriya, Dr. Jayampathy Wickramaratne, Geoffrey Alagaratnam, M.A. Sumanthiran, Dinal Phillips, S.T. Jayanaga, M.M. Zuhair, Attorneys-at-law Prof. Savitri Goonesekere, Prof. Deepika Udagama and Upul Kumarapperuma. They, among others, belong to a group of President’s Counsels (PCs) called ‘Lawyers’ Collective (LC).’ Among those named above are two professors, two former Presidents of the Bar Association of Sri Lanka, one Member of Parliament and one former Member of Parliament. The LC is made up of PCs. All of them, without exception, would know.
At the end of the film, following Kirkland charging his own client, Judge Henry T Fleming (played by John Forsythe) of rape and battery in an impassioned opening statement, the presiding judge, Francis Rayford (played by Jack Warden) thunders, ‘Mr Kirkland you are out of order!’
Kirkland’s response is part of what is widely acclaimed as one of the most dramatic court scenes scripted (Valerie Curtin and Barry Levinson were also nominated for the Academy Award for the Best Original Screenplay):
‘You’re out of order! You’re out of order! The whole trial is out of order! They’re out of order! That man, that sick, crazy, depraved man, raped and beat that woman there, and he’d like to do it again! He *^$%ing told me so! It’s just a show! It’s a show! It’ “Let’s Make a Deal”! “Let’s Make a Deal!” Hey Frank [Bowers, the prosecuting attorney played by Craig Nelson], you wanna “Make a deal”? I got an insane judge who likes to beat the shi*t out of woman! Whaddya wanna gimme Frank, three weeks probation?’
Kirkland clearly violates the principle of confidentiality. Unethical. Deserving of license-revocation. Ironically, though, Kirkland is essentially raising questions about ethics of a larger order, that which is supposed to signature the foundations, edifice and all trappings of the justice system. And that’s the intersection where Kirkland meets the LC.
The LC has issued a statement in response to allegations made by the Sports Minister regarding abuse of judicial office by the President of the Court of Appeal. The LC notes correctly that any allegation of abuse of office by a superior court judge is a serious matter, but observes that it is equally problematic to undermine orders by a court under the cover of parliamentary privileges. Again, correct.
The LC is concerned about protecting the integrity and independence of the judiciary. To this end, the LC, pleading that on this side of impeachment there is no transparent and accountable process in place for disciplinary investigations and actions against judicial officers of the superior courts, proposes that the said courts establish ‘an internal regulatory system that addresses ethics and discipline.’
Self-regulation is good. A binding code of conduct and ethics for superior court judges, which too the LC proposes, is good. The call for credible investigation of allegations related to conflict of interest or dereliction of duty or misconduct is also good.
What these concerns imply is that there is probably dereliction of duty, misconduct, unethical behaviour and disregard for the principle of conflict of interest. Moreover, it is reported that the LC, in this statement, has insisted that appointments to the superior courts should be on merit and integrity rather than seniority. Implied here is a concern that among those who have ascended in the judicial service are some at least who lack merit and integrity.
The question that comes to mind is, ‘how are you going to assess ‘merit’ and ‘integrity’? Sure, if allegations of misconduct are investigated, through an internal mechanism as well as an external one (because we know that the pithy Sinhala dictum naduth haamuduruwange, baduth hamuduruwange — essentially ‘conflict of interest,’ which the LC abhors we are to understand — applies to one and all) and the accused are publicly exonerated or their guilt is confirmed, as the LC puts it, we could sort out the issue of integrity. Simply, those who are found guilty are deemed unsuited for promotion.
What about merit? Is the LC proposing that all judgments are scrutinised by some competent authority (who, though?) to assess competence in judicial conduct? How else can ‘skill’ be assessed?
The ‘who, though?’ above is a bummer (those in the courts who were junketed off to the USA courtesy that country’s State Department would be familiar with the term). Is the LC thinking of an ‘internal mechanism’ and/or an external mechanism to assess the integrity of all judges of superior courts as a matter of routine, i.e. instead of waiting on allegations and the assessment of their validity? In the absence of such a mechanism, does it not devolve to ‘whim and fancy’ of the determining authority? And if there are no allegations, then should seniority be considered the default?
In other institutions, incompetence and wrongdoing are punishable and punishment can detract from seniority. In the case of judges, who will assess competence and how? If a higher court overturns a determination issued by a lower court will the judges of the latter get demerits stamped on their record which could adversely impact chances of being promoted? Regular and rigorous auditing of judges: is that one way of weeding out those who lack integrity? The LC, one hopes, would come up with options.
Integrity. Now that's pretty mercurial isn't it? Who makes the calls and based on what? It is astounding that the LC doesn't seem that have understood that the measurement of integrity is subjective. There are several people among those named who, if they said they had integrity, I would laugh out loud. I'm sure most of them if not all are members of the Bar Association of Sri Lanka (BASL), which has in no uncertain terms made it impossible to associate the word integrity with this club. The professors in this collective could supervise a doctoral dissertation titled 'Lawyers and Integrity: the BASL's Dimensions of Compromise.'
But that's me. But that's exactly my point. Subjective. Except of course I can offer a cogent argument to substantiate my claims.
The LC’s statement is clearly prompted by
justifiable concerns about political interference; put another way, a
fissure in the lines that separate the judiciary, legislature and
executive spheres of the state. It is a legitimate concern. I have some
questions for the LC, since ‘appointment’ trouble them:
Do you
agree that the Attorney General’s Department is like a half-way house
for those who aspire to serve on the Supreme Court? Could you
investigate the career paths of those who made it to the Supreme Court
over the past 50 years and tell us about the flaws which the patterns
indicate? Could they also examine the performance of judges in the
superior courts in cases concerning high-ranking politicians or when
they opined about constitutional matters? Why isn’t the system adjusted
so that those who opt to represent clients cannot aspire to hear
representations and vice versa, as is the case in Britain for example?
Why is there no discussion on the merits and demerits of adversarial and
inquisitorial systems of justice? What are the reasons for inordinate
delays in court, especially when it comes to land cases? Why have we
retained long court vacations, originally instituted so British judges
could go home for Christmas and/or Easter?
There’s a trial going
on here. The justice system is on trial. The LC is not yelling like
Arthur Kirkland in the movie but is nevertheless saying ‘the trial is
out of order! It’s a show! It’s a show! Its “Let’s make a deal!”’
These
people are senior lawyers. They could demonstrate the merits of the
title they hold. Let them now show integrity by addressing the questions
raised.
['The Morning Inspection' is the title of a column I wrote for the Daily News from 2009 to 2011, one article a day, Monday through Saturday. This is the 273rd article in the new series that began in December 2022. Links to previous articles are given below]
malindadocs@gmail.com
Other articles in this series:
Hunters and 'victims' of immemorial light
The unbearable lightness of pause
Seasons bookeneded by leaves on park benches
The world shall not be emptied of poetry
Reclaiming the everyday with solidarities of tender fury
An Aussie broke a SLan heart in Ind for Afg
Writing magical pieces about something beautiful when time permits
The scattered archives of art and protest
Friendship that keep friends permanently at 16
Amherst: silent, rural, poetic and serendipitous
The virtues of unemployability
A breathless hush at the close
Ahmed Issa, fearless and audacious in Gaza
Let us take a deep breath now...
How Grolier Poetry writes 'Harvard Square'
Following children and their smiles
Let's plant words in cracks and craters
When the earth closes upon us...
Let us now march to the battleground of words
The most pernicious human shield
Who bombed Frankfurter Buchmesse
Love's austere and lonely offices
The mysteriously enjoined in the middle of nowhere
Reflections on the unimaginable
Jackson Anthony is a book and will be read
A village called Narberth Bookshop
'Irvin' and other one-word poems
Earth pieces Kerala and Sri Lanka
In the land of insomnial poets
When you don't need an invitation, it's home
When the Canadian House of Commons applauded a Nazi...
The importance of not skipping steps
No free passes to the Land of Integrity
Hector Kobbekaduwa is not a building, statue, street or stamp
Rajagala and the Parable of the Panner
Let's show love to Starbucks employees!
Octavio Paz and Arthur C Clarke in the stratosphere
9/11 and the calm metal instrument of Salvador Allende's voice
Whitman, Neruda and things that wait in all things
Thilina Kaluthotage's eyes keep watch
Profit: the peragamankaru of major wars
In loving memory of Carrie Lee (1956-2020)
Mobsters on and off the screen
We're here because we're here because we're here
Sha'Carri Richardson versus and with Sha'Carri Richardson
A stroll with Pragg and Arjun along a boulevard in Baku
Daya Sahabandu ran out of partners but must have smiled to the end
Sapan and voices that erase borders
Problem elephants and problem humans
The 'inhuman' elephant in a human zoo
Ivan Art: Ivanthi Fernando's efforts to align meaning
Let's help Jagana Krishnakumar rebuild our ancestral home
Do you have a friend in Pennsylvania (or anywhere?)
A gateway to illumination in West Virginia
Through strange fissures into magical orchards
There's sea glass love few will see
Re-residencing Lakdasa Wikkramasinha
Poisoning poets and shredding books of verse
The responsible will not be broken
Ownership and tenuriality of the Wissahickon
Did you notice the 'tiny, tiny wayside flowers'?
Gifts, gifting and their rubbishing
Journalism inadvertently learned
Reflections on the young poetic heart
Wordaholic, trynasty and other portmanteaus
The 'Loku Aiya' of all 'Paththara Mallis'
Subverting the indecency of the mind
Character theft and the perennial question 'who am I?'
Saji Coomaraswamy and rewards that matter
Seeing, unseeing and seeing again
Alex Carey and the (small) matter of legacy
The insomnial dreams of Kapila Kumara Kalinga
The clothes we wear and the clothes that wear us (down)
Every mountain, every rock, is sacred
Manufacturing passivity and obedience
Sanjeew Lonliyes: rawness unplugged, unlimited
In praise of courage, determination and insanity
The relative values of life and death
Poetry and poets will not be buried
Reunion Peradeniya (1980-1990)
Sorrowing and delighting the world
Encounters with Liyanage Amarakeerthi
Letters that cut and heal the heart
A forgotten dawn song from Embilipitiya
The soft rain of neighbourliness
Reflections on waves and markings
Respond to insults in line with the Akkosa Sutra
The right time, the right person
The silent equivalent of a thousand words
Crazy cousins are besties for life
The lost lyrics of Premakeerthi de Alwis
Consolation prizes in competitions no one ever wins
Blackness, whiteness and black-whiteness
Inscriptions: stubborn and erasable
Deveni: a priceless one-word koan
Recovering run-on lines and lost punctuation
'Wetness' is not the preserve of the Dry Zone
On sweeping close to one's feet
Kumkum Fernando installs Sri Lanka in Coachella, California
To be an island like the Roberts...
Debts that can never be repaid in full
An island which no flood can overwhelm
A melody faint and yet not beyond hearing
Heart dances that cannot be choreographed
Remembering to forget and forgetting to remember
Authors are assassinated, readers are immortal
It is good to be conscious of nudities
Saturday slides in after Monday and Sunday somersaults into Friday
There's a one in a million and a one in ten
Kumkum Fernando installs Sri Lanka in Coachella, California
Hemantha Gunawardena's signature
Architectures of the demolished
The exotic lunacy of parting gifts
Who the heck do you think I am?
Those fascinating 'Chitra Katha'
So how are things in Sri Lanka?
The sweetest three-letter poem
Teams, team-thinking, team-spirit and leadership
The songs we could sing in lifeboats when we are shipwrecked
Jekhan Aruliah set a ball rolling in Jaffna
Awaiting arrivals unlike any other
Teachers and students sometimes reverse roles
Colombo, Colombo, Colombo and so forth
The slowest road to Kumarigama, Ampara
Some play music, others listen
Mind and hearts, loquacious and taciturn
I am at Jaga Food, where are you?
On separating the missing from the disappeared
And intangible republics will save the day (as they always have)
The circuitous logic of Tony Muller
Rohana Kalyanaratne, an unforgettable 'Loku Aiya'
Mowgli, the Greatest Archaeologist
Figures and disfigurement, rocks and roses
Sujith Rathnayake and incarcerations imposed and embraced
Some stories are written on the covers themselves
A poetic enclave in the Republic of Literature
Landcapes of gone-time and going-time
The best insurance against the loud and repeated lie
So what if the best flutes will not go to the best flautists?
There's dust and words awaiting us at crossroads and crosswords
A song of terraced paddy fields
Of ants, bridges and possibilities
From A through Aardvark to Zyzzyva
Words, their potency, appropriation and abuse
Who did not listen, who's not listening still?
If you remember Kobe, visit GOAT Mountain
The world is made for re-colouring
No 27, Dickman's Road, Colombo 5
Visual cartographers and cartography
Ithaca from a long ago and right now
Lessons written in invisible ink
The amazing quality of 'equal-kindness'
The interchangeability of light and darkness
Sisterhood: moments, just moments
Chess is my life and perhaps your too
Reflections on ownership and belonging
The integrity of Nadeesha Rajapaksha
Signatures in the seasons of love
To Maceo Martinet as he flies over rainbows
Fragrances that will not be bottled
Colours and textures of living heritage
Countries of the past, present and future
Books launched and not-yet-launched
The sunrise as viewed from sacred mountains
Isaiah 58: 12-16 and the true meaning of grace
The age of Frederick Algernon Trotteville
Live and tell the tale as you will
Between struggle and cooperation
Neruda, Sekara and literary dimensions
Paul Christopher's heart of many chambers
Calmness gracefully cascades in the Dumbara Hills
Serendipitous amber rules the world
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