Thank you. I think we come from two different theoretical perspectives. Yours seems to be heavily influenced by legal positivism, and mine is by Marxist critical legal theory. Yet, we seem to agree more than disagree. I am also learning some new insights from you.

What do we agree?

1-The importance of the constitution.
2-Consitution is not a perfect document.
3- “Any Constitution will have holes in it depending on the perspective adopted.”
4-Sri Lankan Supreme Court has rendered a valuable service to the country. If not for that we would have been in worse situation. Indeed, we have had so many outstanding CJs.
5-J.R. Jayewardene did plenty of damage to the constitution and the entire justice system. Since then story of our justice system has got complicated. I still remember the speeches by late CJ Samarakon. I also have lots of faith in the current CJ.
6-Yes, even in countries where there is nominal separation between state and religion, the interpretive context of justice is subject to all sorts of religious, social political influences. (However, I think nominal separation has a number of advantages.)
7-I have no sympathy for people who support terror, irrespective of the historical circumstances that lead to the terror. As a pacifist dignity of human being is more important than anything else. We are civilians can do a lot to prevent terror/militarization of the society. I beleive that all human beings are created equal in the image of God. So I get equally, if not more angry, at forces that lead the society to terror and dehumanize social relations.

What do we disagree? What remains to be clarified?

My disagreements with you stem from the contradictions or lack of clarity in the points you raise in your own response. So my theoritical bias attempts to address the issues you and I share about the justice system.

1-If the constitution is not perfect, and its holes depend on the perspectives adopted, then all its interpretations cannot have the same value. Perspective is a subjective matter shaped by social, economic and political contexts. So what we say just interpretations are relative. I agree that we need to respect the court decisions. But that should not stop us from engaging in a productive dialogue about the perspectives that influences the court decisions.

2-However imperfect the SL Constitution is, do not forget we have to work “Within it” to achieve a just society. I guess “…” indicate that you are also uncertain about working within. Is it faire to say that uncertainty is a matter of perspectives, or to be precise, it is a matter of the social, economic and political contexts within with the constitution was framed and interpreted? Don’t you think that achieving a just society also means making the interpretive context supportive of the independence of the judiciary?

3-My contention is about the interpretive context of justice, which I think is subjective. But the judeges always do their best to be ‘obejective’. Do you think the judicial interpretations can come under influences of social, economic and political context?

4-Are there any perspectives that frame the Sri Lankan constitution that you would consider has problematic or constrain justice? If not how do you explain the proposed Amendments 13th and 17th Amendments to the constitution? These proposals were result of the limitations of the existing constitution.

5-How do you explain the arrest and detention of Tissainayagam and awarding Karuna and Pillyan as members of the ruling party?

6-Do you have any examples of coutr decisions that you think as far removed fom being just? Or could have been different.

7-I would rather say that colonial government replaced Buddhism with capitalism. Thereafter, introduction of private property and along with other capitalist relations have had significant influence on the justice system, more than Christianity.

8-Relationsship between religion and pre-colonial states are very different from what we see today. However, Sri Lankan kings patronized many different religions mainly Buddhism and Hinduism. I am referring only to religion in terms of its relations with rulers, not its teachings. Do you say that capitalism and religious nationalism absolutely have no impact on the justice sytem as the later is totally independent?

Peace

( A Little bit addition to the above post)

However, not withstanding anything said above, the rabbit should not take cover behind the bush!

(I am Just joking. Don’t take it seriously.)

The question I asked whether you are the same Jude Fernando, was to to clear my target. Now that the target is cleared with your negative, I will not shoot the rabbit but the bush.

Thanks again!

If there is a SINGULAR thing that Modern Sri Lanka can be proud of, its our Judiciary. It’s not a puppet in the hands of the Govt as you imply.

The SL Constitution makes sure that the Head of the judiciary, the Chief Justice is “UNTOUCHABLE” by even the Executive President. The CJ cannot be “DIRECTED” to do “ANYTHING” by the President of SL though you state “The constitution allows the executive to use power with impunity” such is not the case, the Supreme Court stands in his way on critical issues.

Once appointed the CJ cannot be removed until his term expires. This ensures the CJ’s Independence as nothing can be done by the Govt or the President against a ruling by him and the SC other than by an impeachment in Parliament. Doing that in a Parliament elected under the Proportional System would need cooperation from the Opposition.

Not only is the CJ above Presidential direction, the Attorney General too is above Presidential direction. He is the principal lawyer for the Govt in ALL matters that come before the Supreme Court. He decides on who to prosecute and should not be prosecuted (One of the recent holders of this position is the Legal Mentor of the LTTE, Siva Pasupathi, now living in Australia and who petitioned the Australian Govt to block the IMF loan to SL).

Do you sincerely believe that his pro LTTE leanings were not known to the Government when he was appointed to that possition?

By keeping both the CJ and the AG beyond the reach of the President of SL, Sri Lanka’s Constitution makes sure that the “INTERPRETATION” of the Constitution is “JUST”.

Please remember that “ANY” bill that is deemed unconstitutional by the SC (whose members are Tamils, Muslims, Burgers, Sinhalese, Christians, Islamic, Hindus, Buddhists in other words Secular) has to be passed by a 2/3 majority in Parliament and then by a Public Referendum before becoming Law.

The worst thing that JRJ and his supporters wrote into the Constitution is the perverted principle that the “Head of State can do no wrong”. Any idea where it could have been borrowed from?

However imperfect the SL Constitution is, do not forget we have to work “Within it” to achieve a just society. Throwing insinuations with ‘may be’ instead of just criticism will not help anyone.

Where can you find a “‘PERFECT’ Constitution? Any Constitution will have holes in it depending on the perspective adopted.

You stated
“The Sri Lankan constitution is neither secular nor inclusive; it does not separate religion from the state, but is biased towards the religious interests of the majority community. Although the 1978 Constitution rejected many of the authoritarian and exclusive features of the 1971 Constitution and accommodated many minority interests, the interpretations of the constitution may become increasingly subservient to the demands of neoliberal economic policies and ethnoreligious nationalism. Both ethnoreligious bias and economic pressure feed upon each other and corrupt the judicial branch, expanding the space for further authoritarian practices by all institutions.”
Unquote

Please read the section dealing with Religion in the SL Constitution. The ‘ONLY’ attachment to religion in it, is the requirement to protect Buddhism ‘WHILE’ ensuring religious freedom to all others. This is a far cry from the close ties that Religion has in leading democracies of the world

The requirement to protect Buddhism ‘CANNOT OVERRIDE’ religious freedom of all others.

In Sri Lanka the connection between State and Buddhism has a history of over 2000 years. It was replaced by Christianity during Colonial Rule. Please see my discussion with “Burning_Issue” on this matter.

( http://www.groundviews.org/2009/11/30/why-should-tamil-speaking-communities-give-critical-support-to-sarath-fonseka/comment-page-2/#comment-11578 )

The ONLY thing standing in the way of authoritarian rule is the Justice system of this country headed by the CJ and the Supreme Court. Hence we cannot allow anyone to make unjustified insinuations against it and demean its standing in the public’s mind under any guise.

I hope you will respect the need to limit criticism to fact and not venture into the realm of ‘may be’s when discussing the Supreme Law of this Country, The Constitution.

Thanks. Actually, my comments are not about court judgments, but the interpretive context.

Actually, critical legal theory developed in response to critical reflections on various interpretations of the US constitution and legal system. These critics were influenced by post-modern/post structuralists.

Critical legal theory provides a critical perspective on the role of legal reasoning based on legal positivism. These criticisms focus Legal principles offer an objective way of resolving legal issues 3) Law is a constructive force in ordering our society.

Judges or courts do not make the interpretive context, but the economy, politics and culture of the country. So the challenge for the courts is to strive towards objectivity. But objectivity is always tampered by the context in which the laws are interpreted.

This interpretive is constrained when the national security (war against terrorism) becomes an urgent need and the society gets militarized.

Jude

Nop. I am not in Britain. And as policy I do not get involved in Sri lanka related political or other activities if I am abroad. For that matter even while in Sri lanka. Once in a way I write something, when I get some free time. Other than that I am just a ordinary citizen.

Jude

on the state of the Sri Lankan judiciary, the link below gives a good overview of the issues

http://www.crisisgroup.org/home/index.cfm?id=6186

Recently in local news the name of one Professor Jude Fernando was appeared, with regard to a lega/ poltical activity aginst Sri Lanka, some place in Britain. Are you the same Jude Fernando?

The situation is at the other extreme in the West. Here, in the USA, everyone knows their rights and will fight tooth and nail to defend them. They will cite the Constitution repeatedly. But what is even more astonishing is that everyone RESPECTS the Constitution. They realize that this little piece of paper has an amazing history that no one can erase. They realize that this little piece of paper is what gives them the right to live, breathe, and feel democracy.

Here is where I am coming from. In Marxist critical legal theory, legal categories, constitutions and laws are social constructs. They are the ‘supper structure.’ They are not understood as abstractions or apolitical. Their interpretation is always subjective. Their meaning needs to be understood in the context of political economy. That is why judges disagree, and in many countries appointments to the Supreme Court is always political affair. This is also why I have the greatest respect for the judiciary, because their business is difficult. Without it we cannot function. Judgment is a matter of interpretation and interpretation is subjective. Elected officers have lot to do in terms of making the interpretive context favorable to the judiciary. Anyways, my perspective is highly debated in law schools. I would love to know your perspectives about the critical legal theory.
Jude