By Elmore Perera –  

Elmore Perera

As reported in the “Island” of 5^th February 2013, President Rajapaksa has belligerently and emphatically stated at the Independence Day Celebration “Do not believe something just because it is said …..  We tell the people of the world – Come! Come Over and See for yourselves!” Any individual who accepts this at face value can only conclude that Sri Lanka is blest with a self confident and assertive President who is, at the same time, the last word in “Transparency  and Accountability”. He has rightly cautioned the whole world against believing anything merely because (i) it is said verbally (ii) reports say so  (iii)  critics say so or (iv) the media has published it. Regrettably however, several of his close relatives, his hand-picked Ministers and other appointees to lesser positions in the hierarchy of the State do not seem to have understood or absorbed this exemplary personal vision of the President.

Without his knowledge or approval his minions in the Parliament that claims to be Supreme walked into the trap set for them by a scheming opposition, and initiated a process to impeach his “good friend Shirani” the Chief Justice, on the patently untenable and ridiculous  grounds that she had behaved in a manner that they did not consider to be “good” behaviour. Breathing fire and brimstone, a female M.P. announced to the media on 1^st November 2012 that she had handed over to the Speaker a Motion (which in fact contained little more than 117 Signatures) purportedly containing 7 charges against the first female Chief Justice  of Sri Lanka. Strangely however, by the time it was served on the Chief Justice on 15^th November 2012, it contained 14 charges. This female, whose power and energy presumably caused this increase, has since been duly reprimanded by the President who assigned her the management of the bankrupt and powerless Ministry of Power and Energy. Her latent talent (or lack of it) may well be celebrated (or exposed) ere long.

In strict compliance with purported SLFP rules against nepotism, (as clearly demonstrated in the case of former Minister S.M.Chandrasena and his brother) the President refused to appoint his elder sibling as a Minister in his Cabinet. However, he reluctantly agreed to his being appointed as Head of the Legislature as Speaker because, in that capacity the elder sibling was required to act strictly in accordance with the rule of law. He was specifically prohibited from acting partially to satisfy every whim of the Executive. This Speaker accepted a motion tendered to him by the ‘power house’ aforementioned (even though it made no reference whatsoever to any “proved misbehaviour” and only contained some vague allegations) and appointed a Parliamentary Select Committee of 11 M.Ps, mandated only to inquire into these allegations and report. This Committee’s mandate specifically did not include any requirement to arrive at a finding of guilt or innocence, as unequivocally confirmed by the lawyer, Deputy Speaker.

On 22^nd November 2012, before inquiries commenced, the Supreme Court invoked the implied mutual respect and trust between the Legislature and the Judiciary and recommended that the PSC inquiry be deferred until the Supreme Court determined the question of law re interpretation of Article 107(3) referred to it by the Court of Appeal – as required by Article 125(1) of the Constitution. The President (who consistently reiterates that, as a Senior  Lawyer he respects the independence and the integrity of the Judiciary) must surely have been greatly embarrassed by the Speaker’s ruling on 29^th November 2012 that Court notices received by him and by the members of the PSC appointed by him were irrelevant, a nullity, and entailed no legal consequences. However, as Rajapaksa blood appears to be thicker than water, the President feigned ignorance of any such preposterous statement. The Leader of the House and the Leader of the Opposition (both Lawyers who displayed clear ignorance of the abolition of the supremacy of the Legislature in 1977) in unison proclaimed vociferously that “Parliament is supreme!  Court cannot challenge the impeachment motion! No one can issue notices on the Speaker or the 11 members of the PSC!”. The President who was well aware that he alone was Supreme, let this insult pass him by.

In the only previous instance of an impeachment inquiry viz. that of Chief Justice Samarakoon, the PSC held 14 meetings between 11^th September and 27^th November 1984  in spite of the fact that the Chief Justice was due to retire on 21^st October 1984. The one month period for conclusion of the PSC inquiry was extended to 3 months, by Parliament. CJ  Bandaranayake’s retirement was not due for another 11 years and the  one month period could well have been extended to 12 months or more.  During 3 preliminary sessions on 23^rd November, 4^th December and 6^th December 2012, the CJ was subjected to an increasingly vile barrage of insulting comments by the Speaker’s handpicked experts on the PSC. When the PSC met on December 5, the four Opposition members requested that the CJ be given more time to answer the 14 Charges. The Chairman and entire PSC agreed that the inquiry proceeds till December 12^th and then a request be made to the Speaker for a month’s extension. However, when they met on the 6^th December, the Chairman announced that the charges would be decided on the documents before them. The Chief Justice was informed that there would be no cross-examination of witnesses as no oral evidence would be led against her. More than 1000 pages of documents were delivered to her at about 4.30 p.m. on 6^th December and she was informed that the inquiry proper would commence at 1.30 p.m. the next day. Compelled to arrive at the irresistible conclusion that there would be no fair or impartial inquiry, the CJ withdrew from the inquiry at about 5.30 p.m. on 6^th December, stating that she was willing to participate at any time, in any inquiry conducted by a lawfully appointed tribunal.

The 4 Opposition members met the PSC Chairman around 11.30 a.m. on the 7^th December and requested him to stand by the earlier agreement and grant the CJ more time. The Chairman replied that the inquiry had to be finished on that day itself. It was clear then, that there was an unseen hand at work.  Manifesting his respect for the Separation of Powers, the President seemed to have chosen to remain a mere spectator to the high drama enacted by the Legislature.

The Leader of the Opposition (a lawyer) intervened and caused the four Opposition members of the PSC to also withdraw from the inquiry by 5.30 p.m. on 7^th December. In anticipation of their withdrawal, 18 witnesses were summoned by telephone. The 16 witnesses who responded to the summons, furnished statements at the ex-parte inquiry conducted by the 7 government members of the PSC, after the opposition members walked out at 5.30 p.m. on 7^th December. These  7 members not only recorded these 16 statements, they analysed them, wrote a 35 page “judgment” incorporating references to relevant case law and compiled a PSC Report of 1575 pages in the incredibly short  period of 14 hours ending at 7.30 a.m. on 8^th December, 2012. The Report of these 7 members was vetted by Minister Basil Rajapaksa. Thereafter it was handed over to Speaker Chamal Rajapaksa by 9.30 a.m. on 8^th December. Soon thereafter the Speaker announced in Parliament that the CJ had been found guilty of 3 charges, that the gravity of the findings and time constraints made any further inquiry unnecessary, that he had allocated 10 days for the debate on this PSC report and that the exact dates would be assigned after one month.

ICJ Asia Pacific Director Sam Zarifi said “Parliament is pushing ahead with an impeachment process that fails to adhere to fundamental principles of due process and fair trial. The Chief Justice’s impeachment is part of a relentless campaign waged by the Rajapaksa government to weaken the judiciary. An independent judiciary is the principle check on the exercise of Executive and Legislative powers vital to the functioning of a healthy democracy. Any process for removal must comply with all of the guarantees of due process and fair trial afforded under international law, notably the right to an independent and impartial hearing”

The United States urged the Sri Lankan Government and the PSC to act with transparency and guarantee due process in the impeachment probe. Minister John Seneviratne stated that the CJ walking out saying she would not get a fair trial was a humiliation to the Constitution. Commenting on this Select Committee that probed the CJ, Attorney-at-Law and Deputy Speaker Weerakkody commented that “you can’t be a judge of your own cause”. The Bar Association staged island-wide protests against the PSC findings. The leaders of three constituent parties of the UPFA government expressed their dissent stating that it was unjust to inquire into the charges against the CJ under Standing Order 78A. They suggested prorogation of Parliament to provide space for a fair procedure. Senior Attorney Mr. S.L.Gunasekera, an avowed supporter of the Government, stated that what is at stake is not the virtue of the CJ but the Independence of the Judiciary and called for the boycott of a new CJ if the incumbent was impeached. Judge Weeramantry felt compelled to comment on the process adopted and sought a fair trial for the CJ.The Chief Justice issued a statement alleging malice, that she was made to suffer indignities at the PSC inquiry and that she was ready to counter the PSC findings at an impartial inquiry.

Apparently embarrassed and presumably angered by the obviously arbitrary manner in which the PSC had arrived at its findings, the President announced that his conscience directed him to seek the views of an Independent Panel of eminent persons, before deciding on further action. He did, in fact appoint a panel of 4 persons with Dr. Mark Cooray domiciled in Australia, as Chairman and Ranee Jayamaha, Dhammika Kitulegoda and Jeevan Thiagarajah as members. The views expressed by that eminent Panel are not as yet in the public domain.

The Judicial Service Association, the Bar Association, Leaders of all Major Religions, the Congress of Religions and several Commonwealth and International Law Groups urged that the impeachment be set aside. LSSP Leader and Minister Tissa Vitarana stated that either retired judges or some other legal experts should have been appointed to prove the charges. Cabinet spokesman Keheliya Rambukwella stated that Parliament was not bound by Supreme Court rulings re constitutionality of the PSC. Leaders of all major religions said that Civilisation was at stake and called for Justice for the CJ. The Court of Appeal issued notice on the Speaker and the Members of the PSC and warned of a chaotic situation emerging. The Chairman of the PSC admitted that the PSC had decided to seek an extension till 14^th  January 2013, but on 7^th December decided otherwise after the pre-planned walkout of the CJ to discredit the PSC,  and the Opposition Members walked out. The Deputy Speaker said that the Speaker and PSC Members will not comply with Court’s notice.  Rajiva Wijesinghe Government MP said “The way the Chief Justice was impeached and the haste with which the PSC has acted suggest political motives”. The TNA favoured prorogation and enactment of a law to provide for impeachments. Lawyer Susil Premjayantha, PSC Member said that proving of charges was not necessary as the impeachment was a legislative process and not a legal probe.

The Secretary General of the Rajya Sabha in India, Dr. Agnihotri quoting the Judges Inquiry Act of 1968 stated that any motion to impeach a SC  Judge in India is referred to a Committee of a SC  Judge, a CJ of a High Court and an  eminent Jurist. If that Committee absolves the Judge of misbehaviour the matter ends there. The Rajya Sabha or Lok Sabha can only proceed with it if that Committee finds the Judge guilty of misbehaviour. The UNP alleged that offensive remarks of PSC members had been expunged from the report. Lawyer Nimal Siripala de Silva, PSC Member, ruled out prorogation or reversal of the impeachment process. The Deputy Speaker warned PSC Members not to appear before the Court of Appeal. However the JVP and TNA members did appear.

Notwithstanding threatening calls received, the Appeal Court ruled the PSC probe into CJ’s deeds was void in terms of the SC interpretation that Standing Orders were not law and could not empower the PSC to make a finding adverse to the legal rights of a Judge. It held further that no address of Parliament can be made without a valid finding that charges have been proved. Minister G.L. Peiris briefed the Diplomatic Corp that Court should not involve itself in impeachment proceedings conducted under domestic procedures, and that the Judiciary cannot be the repository of  authority for making determinations. The Deputy Speaker stated that the PSC did not find the CJ guilty. The Supreme Court had given a ruling that hardly anyone could seriously argue against. It posed an insurmountable hurdle of constitutional credibility to the Government’s plan to impeach the CJ. The special UN Rapporteur warned that impeachment of the CJ could send a negative  signal to the International community about Sri Lanka’s commitment  to human rights obligations. The Sunday Leader Editor warned that Sri Lanka was digging its own grave. MP Kiriella, Opposition member of the PSC said, proceeding with the impeachment would be a violation of the oath to obey and defend the Constitution and those who did so were liable to lose their seats in Parliament. The Opposition walked out of the Party Leaders meeting protesting against Government’s decision to proceed with the impeachment on the basis of the quashed finding of guilt. The BASL condemned the debate on quashed PSC findings and boycotted Courts.  Biz Chambers of Commerce requested the President to steer the country away from a Constitutional crisis. Leader of the House  Lawyer Nimal Siripala said “Supreme Court can’t define Constitution as it wishes” Minister G.L.Peiris accused the Supreme Court of encroaching on powers of the legislature and setting a wrong precedent.

The Impeachment Motion was passed with a 2/3^rd majority. 3 ministers and a nominated Government MP abstained. Thugs and hooligans attacked lawyers while Police merely ‘looked on’. Canada’s Liberal Party Leader Rae said “In Sri Lanka Government was accountable and the Canadian Minister of Foreign Affairs should raise it with the Secretary General of the Commonwealth and the Commonwealth Minister’s Action Group. Sam Zarifi Asia Pacific – Director of the International Commission of Jurists observed that  “Sri Lanka  Parliament and Executive have effectively decapitated SL’s Judiciary”. Kamalesh Sharma Secretary General of the Commonwealth expressed grave concern and urged a pause in impeachment.

Notwithstanding all requests, urgings and threats, the President appointed Mohan Peiris as Chief Justice. Disbelieving Sri Lankans were reminded of Shakespeare’s Words in Macbeth viz. “Confusion now has made his masterpiece, Most sacrilegious murder hath broke ope The Lord’s anointed temple,  And stole thence The life of the building” The Bar Association, including many Silks and Senior Attorneys, boycotted a ceremonial welcome to Mohan Peiris. The International Commission of Jurists urged the Government to reinstate the Chief Justice and condemned the appointment of Mohan Peiris, who was the legal advisor to the Cabinet, saying it raises serious concerns about the future of the rule of law and accountability and a further assault on the independence of the Judiciary.  The US said that the Sri Lanka Government’s explanation was unsatisfactory. The UNHRC expressed concerns and issued a scathing attack over the impeachment. Canada initiated moves that may result in Sri Lanka being suspended from the Commonwealth. Australia’s Law Council sought Canberra’s intervention on the CJ issue and urged independence of the Judiciary. The British Bar Committee condemned the impeachment of the CJ.

To make an assessment of the Rule of Law and Judicial Independence the International Bar Association appointed a delegation headed by former Indian Chief Justice J.S.Verma, but, contrary to the President’s declared policy, they were denied visas, purportedly in the best interests of the country, stating that the visit would have “clashed with the dignity and privileges of the Sri Lanka Parliament”. The Cabinet spokesman went on to declare that Sri Lanka will carry forward its policies on its own programme in our own way, and anyone was free to come to Sri Lanka, without personal agendas, and see for themselves what Sri Lanka is doing. On a recent visit to India, the President countered protests by reiterating his open invitation to “Come to Sri Lanka to know the truth”.

To provide a much needed respite, the print media published a statement of Sir Paul Judge (President of the Chartered Institute of Marketing) in support of the impeachment. This was discounted as a marketing gimmick. On behalf of an International Council of Jurists, one Dr. Aggrawal had issued a statement assuring the President that the ICJ backed the Government’s impeachment of the Chief Justice and the appointment of Mohan Peiris instead. This statement has been contradicted by the Chief Justice of Pakistan and two Vice-Presidents of the said ICJ. Two British Jurists cited as Vice Presidents of the said ICJ protested against the statement and stated that they were not even aware of the letter re the controversial impeachment. Sir Justice Gavin Lightman resigned from the Council which issued the statement saying “I was never consulted on the statement issued by Dr. Aggrawal purportedly on behalf of the (Indian) ICJ. Commonwealth Secretary General Kamalesh Sharma expressed concern over impeachment of the CJ. and emphasised the Latimer house principles on the Separation of Powers.

Typically, Minister G.L.Peiris “rubbishes” statements made by all and sundry who dare to express any views contrary to his own, strangely fluctuating views, and follows it up with extensive globe-trotting at tremendous expense to the Sri Lankan taxpayer, in a bid to avert a hearing on Sri Lanka at the forthcoming Commonwealth Ministers’ Action Group meeting. The Foreign Minister of Estonia has stated that Estonia expects Sri Lanka to be open to international investigations –an expectation in keeping with the President’s open invitation to “Come over and see for yourselves”. Hopefully, our self-confident and assertive President will ‘set the tone’ by firmly putting an end to the puerile efforts of his own foreign Minister to merely ‘rubbish’ such spontaneous expressions of concern by Sri Lanka’s fast diminishing host of friendly nations.

*Elmore Perera, Attorney-at-Law, Founder CIMOGG, Past President OPA