The resignation of two judges from the three-member Judicial Service Commission (JSC) continues to be a matter of topmost public interest. Comments made by numerous persons reflecting different points of view with regard to the resignations are reflected in both the print and electronic media. The majority of the views expressed tend to support the position of the judges and stress the obligation of the government to bring the matter before a parliamentary sub committee, where the two judges may be able to give details of the matters that ran contrary to their conscience.
A suggested alternative is that the president should call for the two judges to provide him with a report detailing the matters of conscience that they referred to in a letter addressed to him. If he is satisfied that these constitute serious grievances, the president should then to delay the acceptance of the resignations until the matter is thoroughly investigated. In this way, an impasse need not be created concerning the functioning of the JSC which will otherwise result, due to the fact that the Constitutional Council (CC) is not currently functioning for the making of new appointments. Even if the CC were functioning, the making of new appointments without the resolution of the problems that the two judges seem to suggest are obstructing the proper functioning of the JSC, will likely give rise to great doubt and perplexities in the minds of the people of Sri Lanka.
Meanwhile, the objectors to the resignations seem to take the view that although the judges may have made a contribution by pointing out the problems that require certain changes, they need not have resigned for that purpose. In one regular column, the writer took up the view that whistle-blowing can be done without causing an impasse concerning the functioning of the JSC.
One would expect more than mere whistle-blowing from eminent Justices, who are still held in respect for their bold judgements they have given, this writer not excluded. There must have been other ways of bringing to light any conflicts of interest or reasons for their inability to serve any longer on the JSC as it was constituted, when they suddenly resigned. (http://www.dailynews.lk/2006/02/18/fea04.asp)
In simple terms, what this position seems to indicate is that the two judges should have continued to remain in the JSC and fought the matter from within or by means other than resignation.
However, what the two judges appear to be saying is that, while the matters that they are faced with are serious enough to warrant being called matters of conscience, they do not have the possibility of fighting them from within the JSC and that they have no other means through which they could resolve these issues while remaining as members of the JSC.
The problem of judicial officers is that their access to public debate is very limited due to the written and unwritten rules concerning appropriate behaviour of judges. For example, they could not have gone to the media to complain about their plight, as for example the Election Commissioner or some former commissioners of the National Police Commission and the Public Service Commission have done. Due to the very nature of their profession, they lack a forum through which they can express their professional grievances with a view to bringing about corrective measures to resolve the perceived very serious problems.
The two resigning judges, who are both very senior judges, have resorted to judicious language by referring to their problems as matters of conscience. The simple meaning of these words is that the matters are of such a serious nature that they affect their sense of integrity, their moral character and the basic principles that they hold dear. By using this language, they have drawn the attention of the president, as the head of state, to the fact that such matters exist and that they have been compelled to take this action. They have once again repeated the historic dictum here I stand, and I cannot do otherwise. When such problems of deeper morality are raised, it is not possible to take up the view that they should ignore such moral qualms and thus carry on somehow fighting it out internally. It is in the very essence of their position that they do not have such an option; and in branding the issues as being matters of conscience, they are requesting a forum for them to express their grievances, seeking the attention of the head of state with a view for him to provide a forum for them to express their grievances. If the president had responded to this positively, there need not have been any resignations, and the burden would have been on the two judges to satisfy the head of state as well as all state authorities and the public about the importance of the issues they raised.
In all societies, there are people who raise such serious issues, and it is society that will be judged by the manner in which it responds to such calls. It is well known that one of the factors for the U.S. withdrawal from the Vietnam War was reports from many Americans involved in the war who found that Americas position was untenable and unjust. In many other instances in history, societies that have the capacity to listen to such views have made options that, in the long term, prove to be for the benefit of the nation. Those that have not had such capacity have brought further ruin upon themselves.
The question is not how the judiciary can continue even after ignoring the issues that the two judges have attempted to raise. The issue, in fact, is whether it is beneficial for society to provide them with an appropriate forum compatible with their status as judges to air their observations or whether it is better to let the matter die with time. The answer simply is whether society will act in an enlightened manner to benefit from this very serious resignation in protest by these two senior judges.
Thus, those who object to the position of the two judges and who label them as whistle blowers manifests extreme insensitivity, not only to the two judges, but also to society at large, which ultimately will either be the loser or the beneficiary in such instances. Events such as this are occasions through which enlightened journalists can cultivate habits in society to develop a sharper social conscience. If, for limited political purposes, more backward attitudes are adopted, they will contribute to the retardation of national sensitivities and contribute negatively by bypassing great opportunities that some people create by raising matters of conscience.
The most appropriate response to these resignations is for the president, as the head of state, to request them to give him details of the matters of conscience which they have mentioned in their letters of resignation addressed to him.
