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Published On:Friday, January 4, 2013
Posted by Sri Lanka Guardian

Impeachment Motion: A historic opinion

| by Hana Ibrahim



( January 4, 2013, Colombo, Sri Lanka Guardian) The Supreme Court in a historic opinion yesterday, declared Standing Order 78(A) null and void and as having no effect in law, invalidating in one sure stroke, the impeachment motion against the Chief Justice, Dr. Shirani Bandaranayake.  The contentious action to impeach the Chief Justice drew much condemnation from every quarter, not so much for the motion as for the manner in which the procedure was conducted – with scant regard to due process, international procedure or protocol.

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The Supreme Court’s interpretation of the Sri Lankan Constitution, which essentially deemed the Parliamentary Select Committee (PSC) as having no legal authority to inquire into the allegations against the Chief Justice, was read out by the Appeal Court, when it took up two petitions filed by the Chief Justice.

It also explained that allegations against a judge could only be investigated by an entity with judicial authority and cautioned failure to do so could be a threat to the authority of the whole judiciary of the country.

The Court observed that the PSC, established under Standing Order 78(A) is not law as the Standing Order is not law, and stated that in order to inquire into allegations against the Chief Justice, Parliament needs to appoint a committee or an entity endowed with judicial authority.

It will be interesting to see how the government, which has taken a belligerent stance over who has more clout, in its determination to have its way no matter the cost, reacts to the latest salvo from the highest court of the country.

Earlier, Speaker Chamal Rajapaksa, citing a ruling by former Speaker Anura Bandaranaike, deemed that Parliament is not bound to follow the orders of the Superior Courts.  Yesterday, the government and UNP members of the PSC boycotted the Appeal Court hearing, in what was a clear rebuff of the authority of the Judiciary, with the Leader of the House, Minister Nimal Siripala de Silva, echoing the Speaker’s comments about Parliament not being bound to follow the orders of the Superior Court. This has been repeated by government members of the PSC and sundry other ministers, indicating things can only get ugly in the days ahead, unless saner counsel prevails.

Parliament is expected to vote on the impeachment when it sits after8 January and needs only 113 in the 225-member legislature to remove the Chief Justice from her post. With a more than a two-thirds majority in Parliament, getting the votes will not be a problem, but perusing that course of action will certainly pave the way for a full blown crisis that may, just may, see the government come out the poor looser in terms of international esteem, tipping Sri Lanka squarely into the realm of pariah state.

Sri Lanka, already on the docks for widespread human rights violations, growing religious and racial intolerance, and suppression of democratic freedoms, cannot afford to have the Legislature and the Judiciary at loggerheads, for the losers at the end will not be the President, the ministers or even the judges, but democracy, the people’s rights and freedoms and the country’s very future.

There is no arguing that Independence of the Judiciary is vital for the survival of democracy in any state. Political interference and the Executive exercising control over it, only serves to dilute the rule of law, the bedrock of democracy, denying the citizenry access to equal justice.

It is this fear that had a majority of Sri Lankans, including a few in government, and the international community, voicing grave concern over the impeachment procedure, which contravened all universally accepted norms and procedural standards associated with the removal of judges of the superior courts in a democracy. The Supreme Court on Thursday reconfirmed this view.

It is now up to the government to get off the high pedestal of meaningless rhetoric, seriously review its options, and proceed in a manner that is acceptable and fair.

( The writer is the Editor of the Ceylon Today, a daily based in Colombo, Sri Lanka, where this piece was originally appeared)



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