Impeachment And The Misconceived Reliance On CJ Corona’s Case
By Reeza Hameed -
CJ SB
CJ Shirani
The case involving the impeachment of Chief Justice Corona of Philippines has been cited in some places in support of parliament’s move to impeach our own Chief Justice. It was most recently invoked during the recently concluded impeachment debate in parliament when, speaking favour of the motion, our Minister of External Affairs said that the principle is that in respect of impeachment proceedings the responsibility is that of Parliament and not the Courts. He noted that when the Filipino CJ went to court, the Court had declined jurisdiction and said: “This is not a matter for us to get involved in because this belongs to the domain of the legislature”.
Justice Corona’s impeachment did not proceed without controversy because of its political undertones. There it was alleged, inter alia, that
1. the signatories to the complaint had signed it without reading and evaluating its contents
2. failing in their duty to verify the sufficiency in form and substance of the existence of a prima facie case to pursue
3. the inordinate speed with which the complaint was filed prevented such verification
4. the CJ was impeached in respect of collegial decisions.
Interestingly, Justice Corona’s case bears many similarities to that of our own CJ’s case.
The Supreme Court of the Philippines dismissed the case brought by Chief Justice Corona on the ground that the matter had become academic, given the fact that the impeachment trial had been concluded and the petitioner had accepted the verdict of the Senate without any protest and vacated his office. In fact, in the case of Francisco v the House of Representatives of the Philippines, the Supreme Court had previously asserted its power of judicial review even over impeachment proceedings.
The Philippines has never been considered by Sri Lankan constitution makers as a model worth emulating, and the Philippines constitution does not provide any assistance for the interpretation of the impeachment clause in article 107 of the constitution because in the Philippines the “sole power of impeachment” is vested in the House and the “sole power to try all impeachment” is vested in the Senate. However, even in the Philippines, a comparably better safeguards have been built into the impeachment procedure. Impeachment proceedings may be commenced on a “verified complaint or resolution of impeachment filed by at least one-third of all the Members of the House”. Furthermore, the existence of a bi-cameral legislature acts to avoid the problem of the same body initiating the impeachment proceedings and trying the allegations.
Clearly, Justice Corona’s case provided no precedential value to support the proposition that was being asserted against Mrs Bandaranaike. She has neither refused to stand trial nor walked away from facing the charges, but protested that the proceedings were unfair and did not give her a fair chance to defend the allegations against her.
The suggestion in Sri Lanka that the courts by quashing the Select Committee’s report trespassed into parliament’s territory was made to try to discredit the court’s ruling on the validity of those proceedings. In Francisco, the Philippines Supreme Court rejected similar arguments stating that the political defence argument can never be raised to cover up abuse of power. The Court in that case said: “The claim, therefore, that this Court by judicially entangling itself with the process of impeachment has effectively set up a regime of judicial supremacy is patently without basis in fact and in law.” The court also referred to the US Supreme Court’s opinion in United States v Smith (1932) where Justice Brandeis declared that where the construction to be given to a rule affects persons other than members of the legislature, the question becomes judicial in nature.
*Dr. Reeza Hameed, a long-standing member of CRM, is an Attorney-at-Law with degrees from universities in Sri Lanka, the USA and UK. He assisted S. Nadesan QC in a number of historic constitutional and fundamental rights cases including the Pavidi Handa case, the Kalawana case, the Daily News Contempt case, and challenges to the banning of Aththa and the Saturday Review. When the editor of Aththa B.A. Siriwardene, and later Nadesan himself, were charged with breach of privilege of Parliament, Reeza was part of the defence team led by Senior Attorney HL de Silva.
In addition in Sri Lanka there is the overiding power of the executive who controls parliment and is now in the process of taking control of the judiciary. This sets the tone for a total usurpation of justice which finds parallels only in banana republics like Zimbabwe, Myanmar and dictatorial states like Russia, China, North Korea etc. The impeachement was anything other than an exercise in democracy, it was a blatant grab of power.
Safa - January 16, 2013
12:10 pm
Thanks for this. GL’s reference to the impeachment process in SL being consistent with that of other countries including the Philippines involved some ‘selective’ quotation. Here we find that there really was no analogy with the Philippines example at all. Also what GLP failed to do, and a captive (and perhaps mindless) audience just accepted the position, was to mention the major differences between SL and those countries where he claimed similar procedures applied. He did not say, for instance that in the US, the senators enjoyed a free vote unlike in SL where the voting is on party lines. Nor did he mention the presence of a second chamber in the US, the Philippines and the UK.
fred - January 16, 2013
12:13 pm
fred,
Not just in the US but in Sri Lanka also voting is free.
Otherwise how would you explain appointed MP Rajiva W and three ministers staying away from supporting the impeachment. But LSSP MP Padmasiri voted for the impeachment against his party line. That means, MPs were free. And that’s the truth.
noble - January 16, 2013
1:14 pm
As this writer says, the Court declared; “This is not a matter for us to get involved in because this belongs to the domain of the legislature” when Filipino CJ went to court.
It is different in our case: CJ, Shirani B not just went to our Court of Appeal and left its judges to decide, but she in connivance with Court of Appeal president chose two other judges there and together had taken in to consideration an interpretation of 107 (3) by her own chosen judges of the SC meant for another case and issued ‘Writ of Certiorari’ to the speaker of Sri Lanka parliament. As had previous speakers done to earlier court rulings on parliamentary matters, current speaker too has rejected this ‘Writ of Certiorari’ issued by Court of Appeal to the legislature. Now, British common law judgement ‘Writ of Certiorari’ was never ever was issued by a British judge to the speaker of British parliament in its history.
And that judgement, apparently is a world record for it had commenced hearing on a court holiday, and at 1.30 pm finished it at 3.30 pm and the judgement was delivered at 4.30 pm on the same day by three judges. It is on such a judgement that Srirani B claims that she is still the CJ.
Free media both pro and against the government is ripe in Sri Lanka. So, we the people have come to know all that and more in detail of these bizarre moves. Entire set of court hearings during the last few months in Sri Lanka have become a joker’s act for the mass.
Leela
noble - January 16, 2013
12:59 pm
CJ Madam Shirani Bandaranayake is still our CJ. Also International community recognise only har as CJ.
She could do more for the country by staying as CJ. Mohan Peiris is just a puppet and will be out soon. MARA will Bankrupt Sri Lanka with ninety percent (90%) of Budget spent on his security, Parliament Goons, power grab and MARA’s Personal Businesses.
70% People are under nourished. 50% live in houses similar to VEDDA (native) community live. 40% unemployed doing manial low productive work.50% are unhealthy and sick.
Sri Lanka’s resources including the Museum ancient relics,Swards, coins , ringa and other country’s ancient relics been sold to China. Bogus Tourist figurs while Building MARA hotel complexes in East, Nothern and southern coasts acquiring land belong to peasants forcefully. Only ME women slave labor bring in Foreign exchange. TEA, Rubbber, coconut industry running at huge losses. Garment Industry lost over 100,000 jobs including EU GSP status, due to MARA blunder.
This is MARA’s Aishcharya.
Mahela - January 16, 2013
2:56 pm
Please read my article ” Impeachment of CJ: A Comparison’ in Colombo Telegraph( November) also Daily Mirror , Editorial Page -12.11.2012.- also in the , Liberal Party Website. http://www.liberalparty-srilanka.org
kamal nissanka - January 16, 2013
3:01 pm
All opposition should isolate MARA and his Goons. Boycott Parliament and visiting Araliya gaha medura.
Lawyers anjd Judges should boycott and isolate Mohan Peiris.
International community should boycott MARA regime and Isolate Sri Lanka in world affairs.
Jayantha - January 16, 2013
3:34 pm
There is a difference between the impeachment of Chief Justice Corona of Philippines and that of Dr.Shirani B. There is a Senate to try the impeachment. In Sri Lanka it is a unicameral syster and therefore the Judiciary as Upper Guardian of the People’s sovereignty had to determine the validity of the impeachment. In Philippines generally all are corrupted. But in Sri Lanka it is the Parliamentarians who are corrupted. Remember Dr.Shirani B. did not utilize even the duty free cars to which she was entitled. She is always public-minded and was never corrupt. Just imagine what the Parliamentarians did out of public taxes – import of formalin, Lamborigin cars, etc. Moreover, Sri Lanka Constitution is very clear on the jurisdiction of the courts in determining the impeachment. SC had only declared it unconstitutional and had not interfered, but indirectly directed to find through lawful means. One could infer that MR & Co were in a hurry to pass the laws to get the benefits for them on various pretexts. Now the only way is for the lawyers to raise a preliminary objection as to the locus standi of the new CJ when he sits to hear a case and cite the verdict of the SC and the AC together with the happenings UN Committe relating to enforced disappearance of Prageeth Ekaneligoa. The lawyers can even raise the objections as to the behaviour of the Police and the Military which affected the independence of Judiciary.
Citizen - January 16, 2013
4:45 pm
CJ Dr.Shiranee Bandaranayake could not have impeached by MARA, if UNP would have stand strong.
Mr. Attanayake, you and your boss RW have hijacked UNP party. You talk only after lettihg the wolf to eat the chicken. Why you and Ranil did not attend CJ appeal’s court hearing, and also did not allow UNP 2 PSC’s to attend it. While Ranil did not allow Sajith to speak for CJ in parliament debate…..now RW plan to take action against him for taking TNA time. What a hyypocrit.
What Ranil said about parliament is Supreme when it has the most corrupt crooks, Murderers, thugs, rapists and Kappan karayas representing people in Sri Lanka.. Who is Anura Bandaranayake….the 10th grade drop out to analyse Constitution.
You are good at giving talk shows in AC rooms while RW tours abroad with 87 million Parliament Pin Padi. If RW likes to Tour abroad without serving people, why he not talk to his friend MARA and ask for a Diplomatic Posting. It’s better to be honest and do what he like most than deceiving both UNP supporters and deceiving his own self.
How come RW got 4500 votes against his rival’s 500 during last UNP party head vote count. It still baffle all of us UNPers about this mystry high vote for RW.
I did not see either you or Ranil participating or giving any releaf parcels to Flood victims., while all other senior UNP’s did so.
Don’t play double game….get back to business and start meeting people in the villages and help them to survive like what JVP do.
Boycott Parliament….no point going to parliament when there is no constitution and since MR is a dictator. Anymore discussions with MARA won’t help…..other than MARA highjack all of you.
Plan to chase him by goingt to villages and by meeting people. Only mud slinging against MARA won’t help…..but only a part of the strategy.
Good Luck.
Jayantha - January 16, 2013
6:17 pm
Peiris deceitful at campus understood he could never represent anyone at court and get a positive outcome so he stayed away and concocted precedence for anything he said joined bullying Sri Lankan politicos and here he goes again.
Now at the disposal of the politicos they the meharak tota has
Peri Peri combo chameleons as representing the people as Attorney and Foreign.
Wuliangguobinjiu - January 16, 2013
8:21 pm
Readers:
Please watch the following Derana Video interview with Bar.Association President Wijedasa Rajapakse tell How MARA along with ex.CJ Sarath N. Silva made Golden Key Collapse by restricting Hon.Lalith Kotalawela to sell Golden Key assetts to settle his 10,000 odd customers.
http://www.derana.lk/index.php?route=programs/programs/programdetails&pid=85&vid=6192&page=1
I told long ago How MARA made Golden Key to Collapse …..and subsequently wanted to buy those assets.
MARA is nothing but a BIG NOTORIOUS HAMBANTOTA CRO…K…….A WORST EVER ROB….R IN SRI LANKA’S HISTORY.
IT’S TIME TO IMPEACH BOTH PRESIDENT MAHINDA RAJAPAKSE AND EX.CJ SARATH N. SILVA ON GK FRAUD.
Jayantha - January 16, 2013
10:39 pm
Supreme court should check all Bank statements(Both Local and Foreign) and other Assets pertaining to DEPUTY CJ Mr.MOHAN PIERIS as there may be some questionable dealings and transactions.
IT’S TIME TO DIG DIRT.
Jayantha - January 16, 2013
10:50 pm
Reeza, you said you have qualifications from SL, and foreign sources… But you fail miserably with your arguments since they are selective… Some how your qualifications does not give you any intelligence.
Some how Sri Lankan legal system seems to be corrupt and cater for the wealthy and influential pedlars and people like you just use it for self interest and not interested in justice… Or shall I say legal system is nothing to do with the justice ?
Forget what happen in Philippines since fundamental question is do Sri Lankan judges have authority to overtake parliament ? Answer is NO, so why talk about this selective rubbish?
At least Philippines judges knew where the line is drawn and behave like real judges for countries well being and I am afraid I cannot say anything like people like you which are nothing but parasites with cheap suits that peddle self interest…
Watcher - January 17, 2013
2:24 am