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Judges and commissions

The Island reported on Saturday that the UNP Working Committee will reconsider its suspension of party veteran Wijayapala Mendis this week following the Supreme Court judgement quashing all findings and recommendations against him. This is as it should rightly be. Many senior UNPers felt that the party had been too hasty in acting against a stalwart, specially in the light of the way some of the Special Presidential Commissions the government had appointed were functioning.

In fact, one of the commissioners who comprised the 3-member tribunal had refrained from signing the report that damned Mendis and had actually withdrawn from the hearings before their conclusion. Those who followed its proceedings would have been left with the distinct impression that the inquiry against the former minister was being settled on the basis that the land transaction that was the subject of the probe was being reversed with Mendis taking back his own land and surrendering that which had been granted to him by way of an exchange that had been regarded as questionable.

While Mendis, no doubt, will feel vindicated, there will be some red faces among those in the UNP who advocated harsh action against him. This is not a time to try to save face and quibble with technicalities. The collective leadership of the UNP must be big enough to demonstrate to their supporters that they accept the verdict of the highest judicial tribunal in the land and revoke Mendis’ suspension. Whether he should be reappointed to the position of chief party whip that he held at the time of his suspension is another matter. There is a Sinhalese saying that advocates caution to the righteous with the sage advice, ``because the stick is strong, don’t beat your adversary till it breaks.’’ (Polla haiya nisa kedenakang gahnna epa.) Mendis would do well to heed the wisdom of these words.

The issues arising from this matter that concern the nation are much bigger than Mendis and the UNP. The fact is that serving members of the higher judiciary have not done themselves any credit by serving in commissions whose findings have been determined to be questionable by their peers. First we had the case of Mr. Sirisena Cooray. Now we have Mr. Wijeyapala Mendis’ matter. Both President Ranasinghe Premadasa and Mr. Ranjan Wijeratne were dead by the time the Vijaya Kumaratunga Commission made its pronouncements. Premadasa’s daughter, Dulanjalee Jayakody, was not permitted to make representations before that commission in defence of her father. Whatever that commission may have said, we are now confronted with the fact that no less than President Chandrika Kumaratunga herself, Vijaya’s widow, very recently accused the JVP of being the killer. That, of course, was the common perception which was challenged before the Vijaya Kumaratunga Commission.

It is not necessary to remind anybody that politicians will always have a vested interest in damning their opponents. This is not to say that the UNP was the model of propriety during its 17 years of office. Nor can its predecessor claim lily white hands. When we hear ad nauseam the eternal refrain on the terror that was unleashed on the JVP during 1988/89, let us remember that there was also a 1971. Equally, let it not be forgotten that the United Front government elected in 1970 extended the term of the then sitting parliament by two years by utilizing its two thirds majority. True enough, the UNP using its five sixths majority of 1977 extended that parliament for six more years. But unlike the United Front, the voters were consulted at a referendum, however flawed some may perceive it to have been. Nevertheless, the inescapable reality is that a simple majority in the country was used to preserve the UNP’s five sixths parliamentary majority.

The public is only too well aware that the standards of conduct of politicians holding public office have deteriorated sharply with successive governments and has now hit an all time low. In such a situation, judges must be cautious that they are not used by politicians of whatever hue to do hatchet jobs on their opponents. There was a time when many superior court judges were strongly of the view that sitting judges should refrain from sitting on commissions of inquiry if only for the reason that many of these tend to be controversial. But there is also the need that misdeeds of governments and their functionaries must be properly probed and, where necessary, the guilty punished. Many believe that retired rather than serving judges are best suited for this work.

However threadbare the cliché, it is nevertheless true that justice must not only be done but seem to be done. This holds not only for the courts but also for commissions of inquiry performing quasi-judicial functions. Thus ``rewarding’’ commissioners with diplomatic and other such appointments, especially after they have pronounced on highly political matters, must be avoided. It is for good reason that members of the higher judiciary do not appear in court after retirement. Those reasons hold good in a broader field as well.

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