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Published On:Saturday, December 29, 2012
Posted by Sri Lanka Guardian

Mr. President; DO YOU HAVE A BRAIN?


Impeachment of the Chief justice: Mahinda Rajapaksa as the President of Sri Lanka should end the current impasse

| by  Upasiri de Silva

( December 29, 2012, Melbourne, Sri Lanka Guardian) President of the Sri Lankan Nation Mahinda Rajapaksa, as different from being the head of the SLFP and or the UPFA, should demonstrate the kind of statesmanship, which along will put and end to the current impasse created by ‘him’ (Opinion Column - Sunday Times 16-12-12) trying to impeach the Chief Justice Dr. Bandaranayake to meet the political aspirations of his brother Basil Rajapaksa, Minister of Economic Development.  What I gathered from the electronic and the print media, the PSC Members from the UPFA/SLFP, has pronounced the Chief justice Dr. Bandaranayake guilty of three charges namely Charge 1, 4 & 5 out of 14 charges, “without allowing the Chief Justice to adduce evidence oral or documentary, in disproof of the allegations made against her according to the Standing Order 78 (A)(5). This may be a purposely created mistake by the PSC members, trying to establish the present outcome. This may have occurred due to their inability to understand the Rule of law, and their lack of experience and knowledge in judging complicated cases of this nature, as they are ONLY politicians  and not Judges who do examine this type of inquiries daily as their normal occupation. 

There is increasingly widespread feeling among religious leaders, intellectuals, legal luminaries and the ordinary people as well as the International community that the Chief Justice is being victimized for political reasons as stated above. The ongoing unprecedented campaign by Judges and lawyers against the impeachment motion, which has led to the disruption of the countries court system, and the refusal of other Judges to sit with certain Judge(s) who gave evidence at the PSC, is undermining the authority of the President and his government. Weakening the authority of the President and the government’s moral positions will lead to a simultaneous strengthening of the Chief Justices own position. This shift in power may confuse the ordinary people about the authority of the Executive and the Legislature  to maintain Law and Order. The authority of the President is widely misused by some Ministers of the Government, trying to challenge the Judiciary in a very disgraceful manner in open press conferences and TV debates showing their ignorance of the powers of the Judiciary as per Article 4(c ), as well as the President’s inability to control these Ministers.  In this regard I like to mention the names of two Ministers, Wimal Weerawansa and Dilan Perera, making derogatory remarks at the Judiciary as well against the CJ, at  public forums without realising that they are Ministers of the Government and bound by the Constitution of the Country to uphold the Supremacy of the Constitution. The following statement of Minister Wimal Weerawansa (he may be refereeing to himself)proves the calibre of Ministers serving the Nation. This was what he said: Those who formulated the Constitution may not have thought that person of such calibre would hold such position. (Sunday Times)

Constitution of Sri Lanka.

The ‘Preamble’ of the Constitution of the Democratic Socialist Republic of Sri Lanka, clearly states that the Constitution adopted on Thursday 21st  July 1979 by the Representatives elected by an overwhelming majority,  to constitute Sri Lanka into a Democratic Socialist Republic to allow the people of Sri lanka Freedom, Equality, Justice, Fundamental Human Rights, and the Independence of the Judiciary  as the tangible heritage that guarantees the dignity and well-being of succeeding generations of the people of Sri Lanka  and of all the people of the World, who come to share with those generations the effect of working for the creation and preservation of a JUST AND FREE SOCIETY do hereby ADOPT AND ENACT this CONSTITUTION as the SUPREME LAW of the DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA.

If what is stated in the preamble section of the Constitution of Sri Lanka is absolutely correct, the Supreme Law of the Democratic Socialist Republic of Sri Lanka IS the CONSTITUTION, and NOT THE EXECUTIVE or THE LEGISLATOR or the JUDICIARY. Also Article 4 (C) of the Constitution guarantees the Independence of the Judiciary, as such, it is necessary for the judicial functions be kept out of Parliament.

This opinion that the Constitution is Supreme was already expressed by eminent legal luminaries such as Dr. Nihal Jayawickrama, Barrister and   former AG and Secretary to the Ministry of Justice and President’s Counsel Kanag-Iswaran and many others while discussing this impeachment process of Chief Justice Dr. Bandaranayake. .

 If the CONSTITUTION is supreme then the Constitutional Jurisdiction of interpretation of the constitution under Ch XVI – 125 of the Constitution is the responsibility of the Supreme Court and the Executive and the Legislature should abide by any decisions of the Supreme Court, without making hollow noises, that the Legislator is supreme and Supreme Court has no powers to order the Legislator or the Executive to abide by their Constitutional decisions.

Law is an ass, and many people describe the Law as they see it in their bias minds. But most students who study law and later become fully pledge lawyers learn the same law from the same Professors, but interpret it differently. But Judges who sit on judgment on many of these difficult cases spent their time to study the Rule of Law and come to the correct decision after examination of evidence, as they are bound by their professional responsibilities to deliver an accurate decision without taking sides as their decision will be very crucial for the litigants, in cases like this. How sad it is to note that some uneducated and few educated people holding the responsible positions as Ministers in this government disgrace the judiciary and the court system trying to prove their cheap political agendas, which is detrimental in maintaining  the Rule of Law, which is very essential for maintain a true democratic government.

Rule of Debate –Standing Order 78 (A).

The controversy surrounding this Parliamentary Rule of Debate - Standing Order 78 (A) is now before the SC, as many learned Lawyers and eminent Judges are trying to find a solution to the constitutional questions, referred to the Supreme Court by the Court of Appeal.

I agree with the learned legal luminaries that this Standing Order 78 (A) is bad in Law. Parliament has no role in finding the incapacity of any Judge. Such incapacity of the Judges should be proved by a judicial process before it goes to the Parliament.  My argument is base on the Constitutional requirements 38 (2) (c ) to impeach the President. In the case of the impeachment of the President, the findings of the ‘incapacity’ of the President would be done by the Supreme Court, outside Parliament. Similarly, in case of the impeachment of the Chief Justice ( third in line to be the President if President and Prime Minister is incapable of holding the position) and other Judges, it is the legislature, which initiate the process and the findings of guilty or innocent should be done outside the Parliament by an independent judicial body.

Standing Order 78 (A) was introduced to the Rule of Debates at the time the then CJ Neville Samarakoon was to be impeached. But the process was to be of three (3) parts, part 1 by the Judiciary, part 2 by the Legislature and part 3 by the Executive. But the process never completed as the CJ Neville Samarakoon resigned before the conclusion of the Impeachment motion. To use the impeachment of CJ Neville Samarakoon as a precedent in this impeachment is incorrect, as there are no establish precedents to follow.

If President Mahinda Rajapaksa has any doubts about the Supreme Court Judges working under the Chief Justice to examine the final outcome, he should request the Secretary General of the Commonwealth Secretariat to appoint three independent judges from  Commonwealth countries, to investigate and give their impartial decision on all the charges, and then follow the Legislative and Executive process to remove the CJ.

Conclusion.

President Mahinda Rajapaksa should take appropriate action to show the general public and the international community that he has no hand in this impeachment motion and then tie the barking dogs, and stop all the media – print and electronic- attacks on the Judiciary, till a independent panel of Judges investigate these charges as the country needs a fair and reasonable resolution from the President to end this impasse.

If the information in the ‘Opinion Page’ of the Sunday Time of 16 Dec 2012 is correct, President Mahinda Rajapaksa seems to be in the driver’s seat in pursuing this impeachment motion against the CJ Dr. Bandaranayake. Such reports damage the credibility of the Presidents Statesmanship as well as his impartiality to reach a decision to settle this impasse.

If the President fails to take appropriate action to solve this burning issue without any further delay and remove the responsibility bestowed on the PSC and the Speaker of the Parliament to act under Standing Order 78(A), till a final decision is reached by the independent panel of International judges, the Legislature and the President should abide by what ever the findings of the Supreme Court. If the President decides to seek help from the Commonwealth Secretariat, there may be a possibility for the Judiciary to withhold the delivery of their findings for the good of the Executive, Legislature and the Judiciary and for the sake of the country.




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