The Voice of Dissent and Natural Justice

by Shanie

"Much Madness is divinest Sense –
To a discerning eye –
Much sense – the divinest Madness –
‘tis the Majority

In this, as All, prevail –
Assent – and you are sane –
Demur – you’re straightaway dangerous –and handled with a Chain."
Emily Dickinson (1830-86)

(January 29, Colombo, Sri Lanka Guardian) In response to the reference made to it by the Court of Appeal hearing Sarath Fonseka’s Writ Application, the Supreme Court has determined that a Court Martial is a competent Court in respect of the Article in our Constitution pertaining to convictions by ‘any court’. This issue created a lot of interest and controversy within legal circles and the Supreme Court determination has now the sanction of judicial opinion. Justice Saleem Marsoof delivered a separate judgement and his opinion seems eminently reasonable. He said that any court created, established or otherwise recognised by the Constitution as being competent to impose a punishment envisaged in that Article of the Constitution should be construed as falling within the ambit of that Article in the Constitution. A Court Martial is one such. He further said it was unimaginable that a person convicted of an offence contemplated in the relevant Article of the Constitution should be free to participate as an honourable member of parliament in the affairs of the state.

In view of this Supreme Court determination, it may be necessary for constitutional lawyers to examine the need for a more equitable and clearer amendment to our Constitution. The inquiry in a Court Martial is under the Army Act and those who hold the inquiry are military officers and not trained judicial officers.

Anyone convicted by a Court Martial could feel aggrieved that he or she has not received the natural justice that civilian courts are expected to dispense.

The Supreme Court’s determination has settled one issue raised by Sarath Fonseka’s defence team. But the arguments as to the Court of Appeal continuing to hear Sarath Fonseka’s Writ Application is scheduled for later next month.

Jailed for the truth

Vaclav Havel was a zechoslovakian playwright and human rights activist. He was imprisoned for his activism. In February 1989, he was again jailed for participating in a demonstration to commemorate the death of a Czach martyr Jan Palach in 1969. But within a year, Havel became President of Czachoslovakia. In 1983, just after his release from a four-year prison term, Havel gave an interview, excerpts from which were included by the Civil Rights Movement in their excellent series on ’The Value of Dissent’. The comments by Havel in this interview are so relevant even today:

"For several years, I was forced to live in an environment where every effort was made to break people, systematically to get them to inform on others and to act selfishly; in an atmosphere of fear and intrigue, of mindless discipline and arbitrary bullying, degradation and deliberate insult, being at the same time deprived of even the simplest positive emotional, sensual or spiritual experience, like let us say a pretty picture, a kind word, or a sincere hand clasp. Again and again, I became aware that prison was not intended merely to deprive a man of a few years of his life and make him suffer for that length of time; it was rather intended to mark him for life, destroy his personality, score his heart in such a way that it would never heal completely. Prison thus seems to be like some a futurological laboratory of totalitarianism…..

I am a writer, writing what I want to write and not what others might like me to, and if I get involved in any other way except by my writing, then it is only because I feel this to be my natural human and civic duty, as well as my duty as a writer. That is, my duty as a public figure in whom it is incumbent, just because he is known to the public, to express his views more loudly than those who are not so well known…….

If I criticise my government, it is not because it is a Communist government, but because it is bad. I am not on the side of any establishment, nor am a professional campaigner against any establishment. I merely take the side of truth against lies, the side of sense against nonsense, the side of justice against injustice."

Power of the Powerless

Havel, the political dissident, went on to become the President of his country twice over. In December 1989, when Czechoslovakia broke free from its political past through what has been termed the "velvet revolution", he was elected unanimously as its tenth President. Later, when Slovakia was about to separate as an independent country following a bitter civil war, he resigned as President stating that he did not want to preside over the dismemberment of his beloved country. When the split became an accomplished fact, he was persuaded to return as the first President of what was now the Czech Republic. He served as such for ten years until 2003. Havel, both as a dissident and as President, was a political thinker who never compromised on his beliefs at the altar of expediency. In 1978, as a dissident, he wrote a powerful essay in which he stated that a spectre was haunting eastern Europe – the spectre of "dissent". "This spectre", he wrote, "has not appeared out of thin air. It is a natural and inevitable consequence of the present historical phase of the system it is haunting. It was born at a time when this system, for a thousand reasons, can no longer base itself on the unadulterated, brutal, and arbitrary application of power, eliminating all expressions of nonconformity. What is more, the system has become so ossified politically that there is practically no way for such nonconformity to be implemented within its official structures. . . ."

Later, soon after he had assumed the Presidency, he addressed nation on New Year’s Day 1990. He lamented that the people of Czechoslovakia lived in a ‘contaminated moral environment.’ "We fell morally ill," he said, "because we became used to saying something different from what we thought. We learned not to believe in anything, to ignore one another, to care only about ourselves. Concepts such as love, friendship, compassion, humility or forgiveness lost their depth and dimension, and for many of us they represented only psychological peculiarities, or they resembled gone-astray greetings from ancient times, a little ridiculous in the era of computers and spaceships. Only a few of us were able to cry out loudly that the powers that be should not be all-powerful and that the special farms, which produced ecologically pure and top-quality food just for them, should send their produce to schools, children's homes and hospitals if our agriculture was unable to offer them to all."

Human Conscience

A couple of months later, he addressed the US Congress in a powerful statement of his political values: "There are still many who say they are concerned not for themselves but for the cause, while they are demonstrably out for themselves and not for the cause at all. We are still destroying the planet that was entrusted to us and its environment. We still close our eyes to the growing social, ethnic and cultural conflicts in the world. From time to time, we say that the anonymous mega-machinery we have created for ourselves no longer serves us but rather has enslaved us, yet we still fail to do anything about it.

In other words, we still don't know how to put morality ahead of politics, science and economics. We are still incapable of understanding that the only genuine backbone of all our actions, if they are to be moral, is responsibility.

Responsibility to something higher than my family, my country, my company, my success – responsibility to the order of being where all our actions are indelibly recorded and where and only where they will be properly judged.

The interpreter or mediator between us and this higher authority is what is traditionally referred to as human conscience.

If I subordinate my political behavior to this imperative, mediated to me by my conscience, I can't go far wrong." Surely, that is a statement that is applicable not only in respect of political behaviour but in all areas of conduct and to every one of us – politicians, journalists, judicial officers, academics, intellectuals, civil society leaders and the ordinary citizens. We cannot go wrong if our actions are guided by our conscience.

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