A Deeply Flawed Impeachment Process

Filed under: Colombo Telegraph,Opinion,Popular |

By Friday Forum

Prof. Savitri Goonesekere and Dr. Jayantha Dhanapala

The Friday Forum, in a statement issued several weeks ago, referred to the gradual erosion of judicial independence in Sri Lanka, through acts of commission and omission on the part of successive governments. The recent initiative by members of Parliament seeking to impeach the Chief Justice, Dr Shirani Bandaranayaka, coincided with the conclusion of the second case filed in the Supreme Court challenging the Divineguma Bill.  The timing of the impeachment creates an impression that the government is subverting the right and duty of the Supreme Court under our Constitution, to review and determine the validity of proposed legislation, without interference from the legislative and executive branches of government.  The impeachment motion can therefore be perceived as an attack on an institution that is expected to function independently in the public interest.

The impeachment of a Chief Justice or judge of the Supreme Court is a serious matter, when these persons are guaranteed security of tenure in order to ensure impartial administration of justice.  In an unprecedented initiative, an impeachment motion has been presented in Parliament against the presiding judge of Courts consisting of three Supreme Court judges that determined each of the Divineguma Bill cases. The motion of impeachment was presented in Parliament even before the second court order was sent to the speaker.  The selective manner in which the government has initiated these impeachment proceedings against the Chief Justice, gives rise to grave concern about Parliament’s exercise of its powers of impeachment.

The Friday Forum in its earlier statement referred to the deplorable manner in which the executive has given political appointments to family members of the Supreme Court, creating serious problems of conflict of interests.  Ironically one of the charges in the impeachment motion against the Chief Justice refers to the alleged conflict of interest created by a political appointment given to Justice Bandaranayaka’s husband, immediately prior to her appointment as Chief Justice.

The Supreme Court of this country has in recent years pronounced judgments that have been criticized for their failure to protect the sovereignty and rights of the People.  The determination in the 18th Amendment case, which contributed to the removal of the limits on the term of office of the Executive President, and the elimination of the 17th Amendment procedures for appointing the Police, Public Service and other independent commissions, was one such decision. Earlier decisions of the Courts have provided the basis for the obnoxious practice of members of parliament elected from one political party, crossing over to the government and retaining their seats in parliament.  In the past, they were unseated when they crossed over, since they no longer represented the voters that elected them.  This jurisprudence has contributed to the government acquiring a 2/3 majority, which the voters of this country did not give the ruling party.

The norms of democratic governance under our Constitution demand that the government accepts judicial decisions that they disapprove of without rancour.  Judicial decisions remain the law of the land until they are overruled or revised by another court, or changed by legislation enacted lawfully by Parliament.  This cardinal principle of good governance is violated when a government approves of judicial decisions that conform with its agenda, and responds with an impeachment motion against the presiding judge, in particular cases decided by the Supreme Court.  In acting in this manner the government interferes with the exercise of judicial authority by an individual judge, as well as by a lawfully constituted Court of Justice.

During the attempted impeachment of Chief Justice Neville Samarakoon it was argued vigorously and cogently that the investigation and determination by a Select Committee of Parliament of the allegations against him was unconstitutional. Our Constitution, it was pointed out, provides in Article 4(c) that

“The judicial power of the people shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognized, by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, wherein the judicial power of the People may be exercised directly by Parliament according to law.”

The only exception to Parliament exercising judicial power is as regards its own privileges, immunities and powers. Investigation and proof of misbehaviour or incapacity of a judge it is argued does not come within this exception.  Therefore, when Article 107 states that Parliament shall by law or by Standing Order  provide for all matters relating to an address of parliament on the removal of a judge, including investigation and proof, it could not have envisaged enabling trial by a Select Committee of Parliament.

Quite apart from the above legal argument, it is crystal clear that the process is deeply flawed in principle. The current Select Committee procedure does not provide for the investigation and determination of the allegations by an independent judicial body. It permits Parliament to be a judge in its own cause at every stage of the impeachment proceedings. It has been the subject of repeated criticism ever since the 1984 proceedings against Chief Justice Samarakoon.

The need for change was recognized in the draft Constitution of 2000 which provided for a hearing, in the case of allegations against a Chief Justice, by three persons who hold or have held office as judges of the highest Court of a Commonwealth country. In the case of other superior court judges, it provided for the hearing to be by three persons who hold or have held office as judges of the Supreme Court or Court of Appeal. That draft Constitution was proposed by a government of the same party as the present President, who was then one of its Cabinet Ministers. Although it was not proceeded with, the above provision in the draft Constitution on impeachment was never a matter of controversy. It is incumbent on the government to abandon its present course and to stand by its welcome commitment embodied in the draft constitution of 2000.

Dr Jayantha Dhanapala        and                   Professor Savitri Goonesekere

On behalf of Friday Forum, the Group of Concerned Citizens

Jayantha Dhanapala, Professor Savitri Goonesekere, Rt. Rev. Duleep de Chickera, Professor Arjuna Aluwihare, Anne Abeysekera, Dr. Jayampathy Wickremaratne, Tissa Jayatillaka, Professor Ranjini Obeysekere, Shanthi Dias, Damaris Wickremasekera, Dr. Deepika Udagama, Sithie Tiruchelvam,       Lanka Nesiah, Dr. A.C.Visvalingam, Dr. Camena Gunaratne, Suriya Wickremasinghe, D Wijayanandana,    Radhika Coomaraswamy, Faiz-ur Rahman, Manouri Muttetuwegama,  Daneshan Casie Chetty,             Rev. Dr. Jayasiri Peiris, J. C. Weliamuna, Dr U.Pethiyagoda, Ranjit Fernando, Dr. Devanesan Nesiah, Ahilan Kadirgamar, Javid Yusf, Chandra Jayaratne

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24 Responses to A Deeply Flawed Impeachment Process

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    Really appreciate the efforts taken by the Friday forum to educate citizen of Sri Lalnka about the illegallity of the impeachment presented against Her ladyship Dr S Bandaranayake the Chief Justice of this country. We all must rally round against this illegal, undemoctraic and crazy action of the Executive who had completly forgotten his past including his gloriouas father.

    H Wijesuriya
    November 19, 2012 at 12:29 pm
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    Parliment has become the self appointed Judge, Jury and Executioner of the Chief Justice of the Supreme Court of the Democratic Socialist Republic of Sri Lanka.

    Safa
    November 19, 2012 at 1:13 pm
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    It is heartening to note your reference to the idiocy of a former Chief Justice whose partisan ruling has enabled governments to amass unprecedented powers through crossovers of unprincipled, opportunistic and selfish parliamentarians of the political -divide to retain their enhanced positions to the detriment of the party and the voters that elected them. This I believe is a gross violation of the fundamental right of a voter who elects his member from the political party of his choice to encounter the horrific experience of being cheated by that member to the lure of perks and position at the behest of a ruling party to do their bidding.This jurisprudence as you mention correctly has contributed to the government acquiring a 2/3 majority which the voters did not give the ruling party and correspondingly has dealt a severe blow to the very Independence of judiciary and the democratic functioning of society.It is absolutely correct in your assessment that it was a heinous crime and a judicial blunder to have allowed the 18th amendment which deprives the independence of police,the public service and the election commission ,the bedrocks for democratic governance and peoples sovereignty.Now where ,oh where are we to go from here?The Supreme court has blundered its own way through the acts of some political charlatans and has failed by its appointed role in safeguarding the rights of the citizens.

    Mahanama
    November 19, 2012 at 2:42 pm
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      Mahanama, it is understood the damage is done by the former CJ Sarath N Silva violating the Principles of Law, when it is clearly enshrined in the Constitution the soverignity of the people, where an MP elected by the people from one Political Party has no right to cross over and sit in a Govt. of another Political Party. There is no point in harping on this issue. The error has to be corrected. Therefore action should be initiated in the SC to reverse the situation and unseat all those who crossed over and also render invalid the 18th Amendment which has been fraudulently passed in a Parliament that has no legal status according to the very Constitution. This has to be given top priority by all the learned in this country. There can not be two rights as there should be only ONE.

      gamini
      November 20, 2012 at 2:20 am
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        Gamini, I cant understand why the folks and the respective authorities were unable to go on protest at the time SN silva went against the rule of law. Is not that that the general public and the others were guilty of not doing so. If that was the biggest blunder.. why not people demonstrated… why the lawyers and other … I dont .. know all kind of respective bodies were unable to boycott it until the prevailing regime not pass it… I have no idea about this, because I was not in the country for the last 2 decades, but just seeing the angers of everyone today – towards SN Silva I ask myself why.. This was also the case with recently got passed- 18th AMD… why were many unable to go against ? There are thousands of questions I raise here – when reading all these comments. but none of you could provide me with satisfactory answers to them. As ones who live away from teh country would never grasp… why..

        Sumihiri
        November 20, 2012 at 3:45 pm
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          I have been out longer than you about twice and give a toss what happens. I came on this site by accident 4 weeks ago. No one has the time to spend on your queries because none can teach but one has to learn. ;) Patton said “No bastard won a war by dying for his country but by killing the other bastard” When France and UK the friends of Libya decided to assist the rebels and go for it hell for leather, the British PM was questioned regarding other nations with worse problems therein he replied to the public “when the time is right we go for it” and when will it come no one can say. Therefore, they are out when the time is right and nothing to do with horror-scope ;) Watch the space and good luck.

          Wuliangguobinjiu
          November 21, 2012 at 9:57 pm
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    Whilst appreciating FF’s numerous statements in educating us on the various illegal and controversial decisions of the Government as at date, it is advisable that MR take consideration of the facts mentioned therein. Don’t forget they are all intellectually experienced professionals and hence should pay heed to their valuable opinion. With the present Jesters, Cronies, Opportunists and Advisory Jokers rallied around him, it wont take much time for SL to end up being a Failed State.

    Selwyn
    November 19, 2012 at 2:48 pm
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    The sad thing is this kind of Friday people were silent completely when JR Jayawardena was playing havoc. This is why what they write now can be interpreted as supporting separatist agenda. Are there any non-corrupt judge remaining in Sri Lanka today? How many recent CJ’s have their dignity intact??

    C. Wijeyawickrema
    November 19, 2012 at 7:09 pm
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      It is never too late to start! Dr.Rajasingham Narendran

      Dr.Rajasingham Narendran
      November 20, 2012 at 1:53 am
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      Wijeywickrema, do not try to distort issues. JRJ had a method to his madness. He never tried to use the Constitution interpreting differently as done by MR, where he was helped by his Best Man former CJ Sarath N Silva did, first by letting off MR from the Tsunami Fraud and next allowing him to secure a 2/3 majority in Parliament to pass the 18th Amendment which is invalid in Law, as the constitution of MPs are invalid. It is you buggers who prop these non pod buggers as MR for your own position in society and when caught, try to question sanity? You half baked, thinking that you all are somebody in this society, when you are nothing but gutter snipes, need this type of Scum as MR for you buggers to gain recognition, playing the Patriot Card. Your calibre and the level of Intellect is clearly shown, when confronted with an issue, your excuse is why question now. How Pathetic?

      gamini
      November 20, 2012 at 2:37 am
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        Gamini, you may idolize JRJ, but Colvin and JRJ destroyed our country with their idiotic constitutions.Without screaming at others please let me know one act of JRJ that had been successful.Everything he touched had resulted in the people suffering.He through Ronnie closed down the Fertlizer factory.His ex-daughter in law’s company imported fertilizer until Premadasa took over.Today this country is crying for fertilizer. What is imported comes with arsenic.Our fertlizer factory did not produce fertilizer with arsenic.JRJ started the privatisation of state enterprises. Of the 150 odd 125 were sold out. Of those 125 only about 5-6 are functioning.Some peculiar people have become millionaires with the sale money.This country will pay for the sin of removing Dudley.JRJ screwed Dudley in the 1970 election by withholding funds to fight the election.

        Upali
        November 20, 2012 at 2:13 pm
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    JR is responsible for destroying this country by introducing this constitution which creates a despot(Monster) who cant be controlled by any means.JR’s foolish approach in forming its foreign policy wreck havoc in this country and the country bled for well over 30 years.His tilt towards west and going to meet President Ronald Regan with an elephant when socialist leaders like Indira Gandi ruling India paved the way to train and arm the LTTE by the Indian government.How can we say that these leaders have foresight when looking at the things they have done.

    Lion
    November 19, 2012 at 10:58 pm
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      If this Constitution introduced by JRJ creates a despot, would a person in his right senses believe that the UNP would allow MR to become a despot and not one from the UNP? What convoluted Logic? There is nothing wrong with the Constitution. Infact the Constitution protects Democracy with checks and balances where no President would have had a 2/3rd majority according to the Constitution Provisions. But due to that Balligey Putha Sarath N Silva, who openly violated the Constitution allowed MR to arrogate a 2/3 rd majority. But if this is contested in the SC with a proper Bench of Judges will be not allowed. So before you blame people first check your facts.

      gamini
      November 20, 2012 at 8:18 am
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        @gamini – would you say that the immunity given to the office of the president by JRJ is correct and proper? I do not think so. It is one of the most ill concieved schemes ever to be visited upon us. Sorry, I do not agree with your all holds barred defence of the UNP.

        Pandukabaya de Silva
        November 20, 2012 at 2:59 pm
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          Pandu, I agree there are faults in JRJ as much as the Constitution. I certainly agree that the President should not be offered immunity. If he does something wrong to the Nation, he should be answerable. Really if the President is doing something good for the majority, why have immunity? If he is doing something for his Family and Friends only imunity is required.With all the faults although JRJ is blamed and this Constitution, it is misused only now to a degree that JRJ nor the UNP flawed before. Today all anti UNP and anti JRJ are abusing the Constitution for their personal benifit and blaming JRJ. What a bunch of nit wits.

          gamini
          November 20, 2012 at 3:28 pm
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    CJ has to booked for her ill works and Legislature has power to it. You protected for VC of Colombo University for is all wrong doing. Now he is having family kingdom insie arts faculty one dept.

    Ransi Hamsa
    November 19, 2012 at 11:46 pm
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    Can anybody ever imagine the highly educated, Harvard qualified, highly experienced, highly respected, well mannered lady chief Justice in DSL of Sri Lanka to be JUDGED AND IMPEACHED by a good for nothing, uneducated (mostly grade nine qualified), uncultured ,without much reputation, who cannot read or write or even talk two sentences in English, a bunch of clowns hiding everything under their white sarongs. The famous head Jo….when asked about the success of NA said…relevant…relevant…?? These are the type of parliament bu.. jumpers coming to give the verdict. Where are you educated Sri Lankans. Time to chase the mice away and take back the country.

    Gamini
    November 20, 2012 at 12:53 am
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      @Gamini, pls note that the present CJ is not Harvard qualified (not that there is anything magical about Harvard!) but got her doctorate from the University of London. She was a mediocre academic at the University of Colombo. I do not like this impeachment but neither should we idealize her as some highly erudite judge. Well experiences also? I do not think so. her judgments are poorly reasoned for the most part. BUT this impeachment against her is wrong.

      Pandukabaya de Silva
      November 20, 2012 at 2:57 pm
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        Pandu, What I want to say is for every Job, every profession there are some basic qualifications required. Why we don’t require them to be an MP or Minister in parliament which is highly responsible and a crucial decision making job. Moreover the little that have those qualification are been made mere “yes sir” puppets. That’s why when people ask for education, bread and jobs…they are giving racing cars. Where have we gone wrong…Is it for the greed for money and power of the Governing body… or merely our race is timid, lethargic, and could be easily deceived by the ruling crooks. In sinhala it’s called ” gonata andanava” Any suggestions…..

        Jayantha
        November 20, 2012 at 4:49 pm
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    @C. Wijeyawickreme, I agree with you on the fact that many of these people stayed silent But it was not during JRJ’s time. It was during CBK’s time, when the judiciary was ruined. Read Victor Ivan’s book where this Wickremeratne is specifically mentioned as a crony of Sarath Silva who did a forged affidavit to get a case against that underworld character Rohana Kumara dismissed by that rogue Silva. The links between Silva and Wickremeratne were well known in the legal scene. Similar with many of the others who are of legal training in this group though there are some honourable people as well. Why did the Manouris, Savitris, Sithies and Javids do at that time? can we find one single article wrtten by them protesting against the way that the judiciary was downgraded? Now they cry buckets of tears and issues edicts for which MR does not care a damn! This is why people laugh when these characters hold forth now. It is not due to any seperatist agenda. It is due to self interest.

    Ainsley Abeywickreme
    November 20, 2012 at 1:00 am
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    Gamini you are correct. But someone has to initiate action in the supreme court for them to reflect and adjudicate on the wrong done.But Silvas’ folly has already become a law of the land and got into the statute books and changing that may be a problem under present constitution of the land unless the house of legislature decides to change the constitution. But those who enjoy the fruits of Silvas’ myopic blunder may never want to relinquish same. Isn’t it timely for a respected body of academics and intellectuals like the Friday Forum to dwell more on this legal impasse that has definitively blighted the process of parliamentary representation of public vote polled at elections and consequent deceitful representation by crossovers.

    Mahanama
    November 20, 2012 at 3:26 pm
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    I fail to understand the Logic of many who blame, JRJ, his Constitution, RW, the Opposition and the UNP for the excesses committed by MR violating the Constitution in trying to establish a Military Dictatorship in this once peaceful Democratic country of ours. If the UNP or Ranil Wickremasinghe were making use of the Constitution that JRJ introduced to suppress the masses as done by MR today, to hold on to power and the people were blaming RW, JRJ and the UNP it is UNDERSTANDABLE and REASONABLE. But in complete contrast it is the opposing, CBK, MR and crowd who have abused the Constitution with the help of that Balligey Putha Idiot Sarath N Silva. Then why blame JRJ, RW or the UNP as they have not abused the Constitution ever. I remember in ’94 General Election when no Political party had secured a majority to form a govt., Gamini Dissanayake after a struggle entering and contesting back under the UNP ticket, when RW was holding the PM’s post, He spoke to the Indian Leadership early morning to prevail the local Tamil Parties to support the UNP to form a government. Then he came down to Colombo met with RW and had requested for the UNP to form a Govt. RW had replied that if he did so, there will be unrest and violence and the Forces Command have clearly said they will not be able to contain. Then GD had replied, to sack the lot and appoint some who can controll, as Heads of Forces. But RW had packed his bags, informed the President and was ready to leave Temple Trees. This act of RW was praised by CBK saying RW acted as a Gentleman and was of high praise for him. This praise of CBK towards RW was not for long as she and Mangala together after GD’s demise started to hammer RW in every possible manner and this society of buffoons were jubiliant. Today the very same Buffoons are blaming RW for not pushing MR out and taking over power as head of State. The fact is RW does not want to step over blood of the masses for his benifit. Let the People realise and support him enmasse for a swift transsition of power. RW will move at the correct time and not according to the wants of some, because they have been dealt a raw deal by MR after supporting him. Anyway in hind sight it is a blessing that the UNP was out of Power during the Tsunami as they would have gone to town, with the funds received possibly worse than MR did. If the people are yearning for Law, Order and Discipline, RW has already instilled so in the UNP and will certainly do so for the whole country once he takes over.

    gamini
    November 21, 2012 at 2:37 am
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    The Constitution provides immunity to the President but not for the CJ. Therefore this balligey Putha Sarath N Silva should be taken to task by some civic minded person for defaming the Constitution without further delay.

    gamini
    November 21, 2012 at 2:40 am
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    JR opened up a closed economy and we all enjoy open economy.No one gives this much credit as pre-77 was a long time ago.JR did not rush to media either to prop up what he did for country so most (even a older generation)take it for granted 35 years later. As for the impeachment & bad ole RW,he is once again on the wrong side of huge public opinion that impeachment is unjust and not warranted.State media can shout 24/7 but,people have decided !

    lament
    November 21, 2012 at 6:17 am
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