This is just not cricket! Upgrade democracy, not supremacy!

A game of cricket without independent umpires is just not cricket. The umpires are appointed independently. They follow laws of cricket; rules and conventions determined by specialists and make their decisions transparently and openly in the field.

They are subject to critique and are now pursued by Decision Review Systems and have options for referral to an independent third umpire supported by technology and hawk eyes. In addition, a match referee sits quietly, watching proceedings; hearing the words of players; and observing player behaviour, all in pursuit of judgments, assuring fair play and play by the rules.

In that context, may the ‘good men and women of business and professions’ analyse what played out in our supreme Legislature last week. Was it like a scene from a play, where a set of blind, deaf and mute mice (led by three egoistic leader blind mice), all of whom could not and would not see themselves in a mirror; trying to play the role of umpires and in the end declaring the ‘V’ sign for victory for supremacy? In the process did they damn democracy yet again? This time at a crucial juncture, a turning point in our nation’s history?

The men in white coats in the Parliament overlooked that many of our value adding trading partner nations, international investors, financiers, technology and best practice transferors and suppliers and importers of goods and services, will judge a nation on the state of play of prevalent democracy and not on the purported supremacy of Parliament!

The comparative ranking of ‘Democracy, Transparency, Good Governance, Rule of Law, Justice, Operating Freedom, Rights (especially property rights), Fair Play, Ease of Doing Business, and Consistency of Policy fairly administered free of capture by corrupt elements will only upgrade nations and business.

For certainty, tom-tom beaters in the Legislature declaring their assessment of supremacy will not move our critical value-adding external partners to rush and endow our nation’s economic growth, create new jobs for our youth and bring prosperity to the people through investments, technology transfers, trade, services and global marketing networks.

‘Good men and women of business and professions’ please intellectually examine the following issues and articulated legal positions and weigh in your own scales of judgment whether the determinations made in the legislature are in the longer term sustainable interest of Sri Lanka and its citizens and businesses/professions;

If one’s rights and privileges and even supremacy are challenged by another branch of the governance tripod entrusted with the task of justice and maintenance of rule of law, the obvious step to take is to go before the judicial body and defend the supremacy in terms of the Constitution and the laws of the land. Ignoring the laws binding on itself if one were to declare that all notices, orders or determinations of an empowered judicial body to be a nullity and entail no legal consequences, it certainly is an action reflective of an ostrich hiding its head in the sand!

Is it only the President, who may not be summoned by the Court, noticed or ordered by the courts due to the immunity granted to him/her under Article 35 of the Constitution? Should all others be subject to judicial review and accountability to the rule of law and justice?

Should not the ultimate judgment on all laws, including Parliamentary power and privileges, be interpreted by the Judiciary, subject to the Constitution and not by the Parliament itself?

Should not any “proven misbehaviour or incapacity” be established before the constitutionally empowered judicial body instead of a quasi judicial committee of Parliamentarians, who have in fact by collective majority raised the issues of misbehaviour and will ultimately vote in judgment and impose the punishment as pleasing by them?

Should not all Parliamentarians who signed the motion calling for impeachment, the Speaker and members of the select committee and all those who will eventually exercise voting on the impeachment motion later in the proceedings ,swear an affidavit that:

they have all individually complied with the provisions of the laws governing their declaration of assets and liabilities, which declarations are a pre requisite for them to exercise their rights and privileges as a Member of Parliament?

they will hold themselves ready to defend themselves before the Parliamentary Public Petitions Committee, without the need for a Member of Parliament to sponsor same, where such petition relates to any citizen’s complaints of actions of moral turpitude or alleged misbehaviour or incapacity of any such member concerned?

In Kesavananda Bharati V. State of Kerala, the majority of a 13 member Indian Supreme Court held that there are certain principles within the framework of the Indian Constitution which are inviolable and hence cannot be amended by Parliament. ‘The court held that the while the Parliament has “wide” powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution’ and that the constitution is built on the basic foundation consisting of the dignity and freedom of the individual, and hence no amendment can destroy the fundamental right of individuals. Subsequent cases dealing with the imposition of emergency rule by Indira Gandhi in 1975, it was held that ‘elected representatives could not be trusted to act responsibly’ and the 39th Amendment to the Constitution was struck down using this doctrine in Indira Neru Gandhi v Raj Narain and thus paved the way for restoration of Indian Democracy (http://en.wikipedia.org/wiki/Kesavananda_Bharati_v._State_of_Kerala). Even recognising that there will be major differences between our Constitution and the Indian Constitution the “good men and women of business and professions” can appreciate the founding principles that must be upheld in every nation, if democracy is to be ensured.

President’s Counsel K. Kanag-Isvaran in the submissions before the Supreme Court pleaded that the procedure set out in Standing Order 78A is intrinsically legally flawed, unashamedly obnoxious, unconstitutional, and ultra vires the powers of the Select Committee. It undermines due process and denies to the Judges of the Superior Courts, with single minded purpose, the fundamental guarantee of equality before the law, the equal protection of the law and the presumption of innocence which is available to all other persons under the Constitution.

President’s Counsel K. Kanag-Isvaran further pleaded that in the background of the clear intentions of the Constitution and its manifest objective of preserving and protecting the independence of the judiciary from illegitimate incursions by the Legislature and the Executive, that the mechanisms for the removal of a Judge of the Superior Court s under article 107(2), included in Chapter XV of the Constitution dealing with the independence of the judiciary, does not and could not have intended the Judges of the Superior Courts to be at the mercy of the Parliament acting as the accuser, judge and executioner; when the Constitution by its provisions relating to the independence of the judiciary, has sought to protect and preserve the Judiciary from the very influence and interference of the Parliament.

Presidents Counsel K. Kanag-Isvaran then goes on to plead that it is time enough now, as a matter of grave urgency and pressing necessity, that the Supreme Court do declare and confirm, as a consequential order in terms of Article 125(2) that neither the Parliament nor a Select Committee of the Parliament have the powers, authority or jurisdiction to exercise the judicial power of the people, under Article 107 of the Constitution, and that such an exercise or any attempt to exercise such power is violative of the Constitution and therefore null and void and of no force or effect in law, in order to guarantee that the judges of the superior courts would be able to act and continue to act independently and without fear or favour in dispensing justice, and without any threat from the other organs of the government and within the bounds of the supreme law of the country.

‘Good men and women’ of business and professions please spare your intellect to analyse the scene from the Shakespeare’s play of Julius Caesar in relation to the play that was put on in the Legislature.

“Marcus Brutus (blind mice of the legislature!) makes his speech very formally to reason the mob for killing Caesar ( killing democracy!).

He tells them that Caesar (the judiciary) was too ambitious and would eventually become a much powerful ruler and would make the Romans (citizens!) his slave.

Brutus appeals to the people’s minds and leaves an impression that Caesar would have become a tyrant. What Brutus terms as his reason is a hypothetical situation and is not reason enough for killing Caesar (democracy!). He does not provide any evidence to his statement that Caesar was ambitious.

Whereas Mark Antony (‘good men and women’ of business and professions) uses flawless logic and genuine emotional appeal in his masterful oratory. First of all, Antony enters dramatically to the pulpit with Caesar’s body to win the sympathy of the mob. He began his speech by addressing the mob as “friends”. Antony really wants to avenge Caesar and tries to convince the crowd into believing the truth that they killed Caesar out of envy. Antony appeals to people’s heart.

Hence, he is successful making the mob rise against the conspirators in ‘mutiny’ and ‘rage’. Also, Antony provides evidences of Caesar’s humanity and attachment to people by showing them that Caesar had made the people his inheritors of his wealth, gardens. Also Antony tells the crowd that Caesar had always sympathised with them.

This has a greater effect on the people and Antony’s periodical emotional outburst only contributes to Antony’s impulsive and improvisatory nature serves him perfectly. Antony is gifted with the power of oratory that helped him to stir the common man. Antony proves himself everywhere Brutus was weak. With caution and gradual persuasion, he proves that he is a consummate politician using gestures and skilled rhetoric to his advantage.

Unlike Brutus, who prides himself on acting solely with respect to virtue and blinding himself to his personal concerns, Antony never separates his private affairs from his public actions. Antony directly appeals to the hearts of the roman people. His speech is deeply emotional as he believes that people will not listen to reason. Antony humbles himself as “no orator as Brutus is” hinting that Brutus used trickery in his speech to deceive the crowd.

Thus Antony succeeds to inflame the Roman mob to rise in rebellion and seek revenge on the conspirators. The mob finds it easier to accept Antony, an emotional and sincere speaker than Brutus who appears arrogant and forceful” (http://wiki.answers.com/Q/Difference_between_brutus_and_Anthony_funeral_speech).

Will we soon see the Mark Anthony Oratory from our ‘good men and women of business and professions’ holding out for the future of democracy and pave the way for sustainable growth and prosperity of our nation and its citizens?

A quote from Robert Kennedy for ‘good men and women of business and professions’ to ponder over and resolve to act now: “Every time we turn our heads the other way when we see the law flouted, when we tolerate what we know to be wrong, when we close our eyes and ears to the corrupt because we are too busy or too frightened, when we fail to speak up and speak out, we strike a blow against freedom and decency and justice.”

(The writer is a good governance activist and a former Chairman of the Ceylon Chamber of Commerce.)