By

Gomin Dayasri

The contents in the charge sheet are indeed damning and affect the office of the Chief Justice. Charges are such that it is strategically required to respond rapidly with a defense, before faulty perceptions gets ingrained in the mind of the public.

Ordinarily, defendants do not flash around their defenses by revealing their stance to the media before the trial, as it discloses their position to the prosecution.

Lawyers for the Chief Justice took an unusual unorthodox route by directly accessing the public with her defense on a prime charge, no doubt to enlighten the people and gain empathy that helps the cause. Probably the cheer groups needed a fillip to boost their dwindling morale and a road map to plot a path to success playing to their strength.

The order paper of Parliament is the signpost on which public notices are draped. Constitutional provisions make it mandatory that charges in an impeachment proceeding against a judge are published in the order paper which is in the public domain.

A response to the charge sheet by an accused judge has to be dispatched to the Select Committee. There is no provision, but it is permissible for the response to be dispatched to the media for public consumption. The defense team opted to take this route. Obviously the public must know the flip side, since the charges are public.

When a high profile personality is officially charged and action is filed in court, charges are displayed in the media and photographs of the accused appearing in court are published. Paparazzi with cassettes and cameras follow the accused.

Previously judges maintained a stoic silence when confronted with an impeachment charges. The strategy of going public can have a backlash as the unfolding events can run out of control; there can be a hard strike back as a counter response to the explanations relating to matters on a charge sheet. It’s a gamble and bookmakers will be loath to open a counter for taking bets on the outcome. Yet, if handled cleverly, this route can strike gold though misfire would mean egg on the face.

The CJ, by posting her defense on the public notice board under the hand of her lawyers, provided a right of reply to the other party to present rejoinders publicly through hired tom-tom beaters. It makes the media the courthouse and public the grand jury with the right to hear but not to decide; except in private parlors. Commonsense tells us that the public platform is the home ground of the Executive and their favored pitch is the media.

Defense lawyers picking the public route places the Executive, with megaphones and amplifiers readily at hand, at an advantage. Once the battle lines are drawn in an open-air public performance, rules of any cultured sport will fade away. Maybe this is the reason why judges previously under impeachment kept the state of play within the parliamentary precincts and faced the ordeal keeping to the rulebook for reasons of respectability. Now it could be a free for all with the gloves off.

Going public means having to manage public opinion. That’s easier for politicians than judges who lead a cloistered life distant from society. Taking the play into public arena is a miscalculated calibration for a judge. Sad if it turns into to an event of bungee jumping by greenhorns. Where will the country land in the ultimate free fall?

By placing a defense with particulars in the media, an opening has been created for material to be tendered by the complainants via air bytes, newsprint and visuals – encouraging discussion and debate on public platforms – an exercise that parliamentarians excel in but often overdo and possibly ruin their case. The language will be neither parliamentary nor courtly with an ugly mob invited to the party by going public.

Bashing the Executive and the Legislature is tolerable and probably enjoyable; but the damage done to the innocent and unrelated members of the judicial service watching from a distance is irreparable. Are they to pay the price for the sins of the JSC initiating a collision course? The main culprit in this fiasco is the JSC for declining to meet the president on matters relating to judges welfare and issuing statements to the press bringing discredit to Sri Lanka internationally. Lack of wisdom, experience and a touch of arrogance may have caused it – and what a price the country has to pay for it!

The lady in distress is no tramp and sure will attract sympathy. But you cannot live on sympathy alone. It finally comes down to brass tacks. In parliamentary proceedings, at an impeachment trial, there is a method to be adhered to with opposition members to ensure compliance. Opening doors for politicians to perform revues is to introduce a procedure not subject to any rule or regulation and without a referee to blow a whistle and call foul.

True, a solid defense directed to the public can attract friends and gain sympathy. With it begins the paper chase, opening a passage for responses, replications, statements and counter statements that will emerge in the public domain. The court and town criers dressed in armour will gather on either side. Worse, diverse interpretations will abound from just to jest, hilarious to delirious.

An individual in judicial robes can choose to walk a plank blindfolded, but will require earplugs to drown the sounds of fury that will emanate from all quarters – for or against the resolution –which also have to be borne by the judiciary at large in silence. In the final count, respect for the judiciary is paramount; mixed feelings on the Executive and Legislature are a necessary part of a vibrant democracy.

If parliamentary etiquette is followed in impeachment proceedings – trials of previous judges impeached – Rule 78A (6) of the Standing Order of Parliament would come into operation: “All proceedings conducted with the investigations by the Select Committee…shall not be made in public unless and until a finding of guilt of any of the charges against such Judge is reported to Parliament by such Select Committee”. If a judge is deemed innocent of the charges preferred, he could continue to function in the judiciary without any of the aspects that were ventilated at the proceedings before the Select Committee coming into the public domain. Applaud privacy.

In the case of Judges Colin-Thome and Wimalaratne, they were discharged after a warning by the Select Committee and resumed their places on the bench and continued to dispense justice with aplomb and grace. After a bout of free style wrestling, which is on the cards, all protagonists will look battered in the public eye.

In Sri Lanka, most people believe what they want to believe; truth is interpreted to fit their opinions and the truth often recedes into the background and remains lost forever.