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

Impeachment motion: A shift of the debate

The debate now shifts from impeachment to the future of
 the rule of law

| Basil Fernando

( January 4, 2013, Hong Kong, Sri Lanka Guardian) The Supreme Court in its decision made on January 1, 2013 finally put the debate on the issue of the impeachment of the Chief Justice to rest by providing the following answer to the question referred to it by the Court of Appeal.

The entire structure of Sri Lanka's legal system rests on the principle of the rule of law. The attacks on the rule of law are attacks on the very foundation of the legal system and the political system of the country.
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In view of the reasons we have set out above we answer the question referred to us, as set out at the beginning of this Order, as follows.

"It is mandatory under Article 107(3) of the Constitution for the Parliament to provide by law the matters relating to the forum before which the allegations are to be proved, the mode of proof, burden of proof and the standard of proof or any alleged misbehavior or incapacity and the Judge's right to appear and to be heard in person or by representative in addition to matter relating to the investigation of the alleged misbehavior or incapacity."

In expressing their answer to the Court of Appeal's decision the judges have also expressed the spirit in which they have dealt with this reference.

The reference made to this Court involves a matter which concerns the Judges of the Supreme Court and the Court of Appeal. In dealing with the question we therefore kept in mind that the objectivity of our approach itself may incidentally be in issue. It is therefore in a spirit of detached objective inquiry which is a distinguishing feature of judicial process that we attempted to find an answer to the question referred us. We have performed our duty faithfully bearing in mind the Oath of office we have taken when we assumed the judicial office which we hold.

The long debate on various aspects of the impeachment proposal by the government now comes to an end with the Supreme Court which has the final word on the interpretation of the law having declared what the law relating to this matter is.

The manner in which the government will respond to the Supreme Court decision is all that is left of this debate. The question is as to whether the government will respond within the framework of the rule of law, basing its decision on the principles of the rule of law or whether it will decide to discard the rule of law framework altogether. The Supreme Court citing a previous judgement: Visuvalingam vs Liyanage (1983) 1 SLR 203, reiterated that the "main aspirations of the Constitution are set out in its luminous preamble. The rule of law is the foundation of the Constitution".

The entire structure of Sri Lanka's legal system rests on the principle of the rule of law. The attacks on the rule of law are attacks on the very foundation of the legal system and the political system of the country.

As mentioned through many previous articles and statements there have been continuous attempts to undermine this foundation by way of several constitutional aberrations beginning from 1972 and continued by the 1978 Constitution and finally through the 18th Amendment to this Constitution. The impeachment move was the latest of such attempts.

The Supreme Court has intervened and clearly interpreted the law for the nation. If the government now proceeds in any manner contrary to the interpretation given by the country's apex court this would be a final and irrevocable assault on the rule of law.

Therefore the future debate on this matter needs to be on the core issue as to whether Sri Lanka will remain within the framework of the rule of law or not.

To decide that it will not remain within the framework of the rule of law is a momentous decision that would deprive the government of any claim of democracy.

Therefore we suggest that the attention of everyone be directed towards the fundamental issue as to whether the people want their government to abandon the very framework on which the entire political heritage of the governance in Sri Lanka rests.

The coming few days will be of tremendous significance both from the point of view of the political system as well as the legal system of the country.

It is true to say that Sri Lanka is in a crisis. However, it is more true to say that it has been in a crisis for several decades and what distinguishes the present moment is that the country is coming to a realisation of the crisis that envelops it. The interpretation of the law as expressed in this case by the Supreme Court is an expression that the Court's has come to this fundamental realisation.

If the government is not wise enough to respect the growing collective realisation of a people of their condition that failure is the government's own responsibility and if the government acts without respecting this collective realisation it is doing so at its own peril. The people should leave the government to make its own choice.

As for the people their responsibility is now to act on the basis of their own collective realisation of having lived through a crisis for several decades due to the constitutional tomfoolery of their leaders. It is now the time to respond with peoples' wisdom to that tomfoolery. The people have paid a very heavy price due to these decades of crisis. It is now for them to chose whether this will be allowed to continue or otherwise. There is adequate collective realisation for the people to achieve what they want at this moment and the Supreme Court of Sri Lanka has at last, at last woken up to their responsibilities.

It is indeed a great moment in the problem ridden history of Sri Lanka. If the government proceeds in its authoritarian schemes further it will have no one but itself to blame. The people are watching with open eyes.

Basil Fernando is the Director, Policy and Programme Development, Asian Human Rights Commission. He can be reached at basil.fernando@ahrc.asia 

For the full text of the Supreme Court decision please see here.




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