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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