The system of hierarchical justice
The worst of human fears are supposed to be imagined. From Cold War era fears of nuclear annihilation, to more recent fear of the 'greenhouse effect'' this has been true.

Instituting fear is therefore part of the armoury of the political practitioner. Prabhakaran peers through his glasses at his Heroes' Day speech and says - "we are going to declare war.'' The JVP's Wimal Weerawansa and comrades say "the Tigers are using the ISGA as a platform for a separate state'' without saying the ISGA can be negotiated. Both are textbook examples of the use of fear for purposes of political manoeuvre.

There is also the fear currently within Sri Lanka's eternally unstable political space, that there is a serious threat to law and order. Though this fear may be well founded, the fear psychosis has taken the rationality out of the argument - -and instead of a rational response to the Rule of Law issue, we are having a response that's playing to the worst of our imagined fears.

But its a political quality that is common in a country where when Prabhakaran says he might think of declaring war, the rhetorical response back here is something on the lines of "are you kidding?''

Therefore, we have the politics of sheer theatre. The death penalty is introduced when a High Court judge is killed, and how much more dramatic can political theatre get?

In this realm of theatrical politics, it is natural that everybody in the polity particularly in the legislature and in civil society relies on values of relativity more than bedrock principles. For example, take the Bar Association.

When a High Court judge is killed the response of this body is to call a press conference and say that lawyers should not appear for the criminals who are apprehended even though it is left for individual lawyers to decide.

Such statements sometimes make us wonder - - almost, of course - - who are really worse in our polity, the criminals or the vultures that wait to swoop-in at any given opportunity?

Though nobody has said it in quite those terms so far, it is very clear that the actions of the Bar Association portray the worst side of callous opportunism which makes one sit up and wonder - - are these our professionals then?

All legal ethics say that no lawyer may refuse to appear for a client unless he or she is precluded from doing so for unavoidable personal reasons. These ethics were not discovered accidentally by an imp who crept out from under the mistletoe.

They are on the other hand predicated on the fundamental principle that every man is innocent until he is proven guilty. But Bar Association types do not see the inherent absurdity of maintaining two opposite positions simultaneously. One being that there may be some others behind the man arrested for the murder, Kudu Naufer or whatever alias that he goes by, and the other being that lawyers should not appear for the arrested suspects.

The former position is the best admission yet that even the Bar Association is not absolutely certain of the guilt of the suspects arrested, even though in all likelihood they must be the hoodlums who ordered the hit on the Judge.

But the issue is that there is a bedrock principle involved which is violated by the BASL's position that lawyers should not appear for the guilty even though it’s left to their own discretion – this latter rider being a fine how-di-do considering that a man who wants to go against the professional body's express wish will have to settle for the life of a pariah among the legal fraternity if he follows his own instincts.

But perhaps the truth maybe revealed? It’s one that is not flattering to the legal community at all -- which is that the BASL/Bar Council is being hopelessly opportunistic in a bad situation by transparently attempting to curry favour with the Judges. Make no mistake then - - these people can have no motive other than to please the judges. There is a hope that the Judiciary gives them favourable opinions in court - because they as BASL Members have broken the ethics of the profession ostensibly to protect Judges from criminals!

So, that is how sick our polity has become. To trace the root cause of such anomalous (I almost said deviant) behaviour one cannot merely examine the surface, no matter how keen one’s magnifying glass maybe. Take a hoe, and dig deep into the roots where the national malaise resides.

Within the last three decades, the country has thrown bedrock principles out in favour of hierarchical justice. It’s in one way not strange that when even the international community condones the atrocities of the LTTE for instance and calls it political murder, that the Sri Lankan psyche would get used to the idea that the more people a person kills the better chance he has of escaping the tentacles of the law. This is one dimension of hierarchical notions of justice.

The other aspect of hierarchical justice was on display in the last few weeks when the entire Rule of Law farce was played out in the national spotlight to a rapt audience. When Sarath Ambepitiya High Court judge was killed the President herself let her adrenaline kick-in, and worked herself up into a fit of apoplectic action spurred on by righteous indignation, and declared that she will re-impose capital punishment. Most of civil society cried out that after all a judge has been killed and it's no good at all.

But, when Gerad Perera, a torture-victim was conveniently taken care of by a daylight assassin, the polity was back to the routine reaction of apathy and "aw shucks, these things do happen''. It was left for the AHRC to make some noise at least on behalf of the monumentally unfortunate Mr Perera who was first tortured for no reason -- and then killed to buy his silence.

So instead of the bedrock principle that all murders are acts against society and should be prosecuted to the maximum extent by the law, we have both the President and Bar Association agreeing by default that some people are more important than others .The motto is -- kill three for a Judge but transfer a few police officers for a torture-victim.

And then, the President wonders out loud why our criminal justice system is not working!! Perhaps the BASL and the President should meet together for dinner and figure that one out for themselves.

In the case of Prabhakaran, this version of justice has at least to be considered with a modicum of respectability because his murders are in pursuit of a political cause, we are told. But even so - - he bumps off his political opponents, and the international community seeks him out in his lair and has a convivial tea and photo session with him. It's a national theatre in which bedrock principles are almost playfully being thrown out.

In this atmosphere, the Bar Association and even the President may have lost all sense of their moral compass, but right thinking men and women in this society have not. We may have as a community lost our way -- but this society has to be redeemed only by re-inventing bedrock principles which say that all life is sacred and cannot be taken - - and that justice is not graded when it concerns murder whether the victim is Judge or litigant.

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