4 December, 2020

Blog

A Stinging Judicial Rebuke To The Government

By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

As Sri Lanka heads into a New Year made dangerously uncertain by the precipitation of the worst constitutional crisis since independence, mindless revelry needs to be replaced by this Government’s sober rethinking of where it wants to take this country and its people.

Is it down the road of quasi-dictatorship pitting itself with an increasingly angry and mutinous populace, with the courts and the legislature in an open clash or is it to step back from the precipice that yawns before us?

Wise reflection is therefore needed even though such calls to sobriety may be but calls in the wilderness. The alternative course of action may lead to consequences that are too monstrous to contemplate.

Monstrous consequences of adverse actions

Concerns arising from this week’s shooting incident outside the house of the Bar Association President as well as threats issued to other lawyers involved in the anti-impeachment struggle cannot be assuaged by a visit of the President or empty promises to investigate.

These assurances have become ludicrous given legion past incidents where no perpetrators have been apprehended. The attackers of the Secretary of the Judicial Service Commission as well as those involved in the attack on the Mannar Magistrate’s Court remain at large.

This Friday, in response to a writ petition filed by the Chief Justice against the adverse findings of the majority government members of the Parliamentary Select Committee, the Court of Appeal issued a stinging rebuke to the Government. As much as a previous order by the Supreme Court stopped short of issuing a stay on parliamentary proceedings, the Court of Appeal also refrained from granting interim relief but warned in no uncertain terms that any steps taken in consequence of the parliamentary findings would be void if the Court finds it appropriate to grant writ at the conclusion of argument.

In assuming the power of judicial review to examine the plea brought by the Chef Justice, the authorities were adjoined by the judges to ‘advise themselves’ to refrain from acting in derogation of the rights of the Chief Justice until the final hearing. Moreover, the Court reminded the Government that it was its legal obligation to issue notices on the Members of Parliament cited as respondents in the petition in order to enable them to put forward their point of view.

Greater good of the country

These are measured judicial views that ought to be hearkened to. The immediate response by Parliamentary officers and by some government ministers that they would disregard this judicial order was unsurprising. However, this view should be rethought for the greater good of the country.

Meanwhile vituperative rhetoric peddled by government propagandists to confuse the discussion and to muddle the primary issue of justice not only being done but being seen to be done to the Chief Justice, needs to yield to commonsense and rationality.

Some of these misconceptions are indeed laughable. One prominent allegation, for example, is that advocates leading the anti-impeachment struggle are the very same as those who pressed for the impeachment of retired Chief Justice Sarath Silva some years ago. This is a ridiculous canard. On the contrary, chief actors in this drama (including members of the legal team of the Chief Justice) certainly did not take such fiercely consistent views in the context of the investigation of the misconduct of retired Chief Justice Silva. Excepting for a few dissenting voices at that time, the legal community itself was largely silent. Now, ten years down the line, it is heartening that, at last the Bench and the Bar has realised what is at stake for its own survival.

A more compromising but still inaccurate view put forward by some is that the Chief Justice’s supporters see her as an angel whilst those who are against her, paint her as the devil. This depiction of the extreme is also not correct. Anti-impeachment contenders only insist that the Chief Justice ought to be given the right to a fair inquiry. Surely is this something that Sri Lanka has to debate so ferociously at the expense of the country’s good name?

To argue this point is not to contend that the Chief Justice should not be subjected to any inquiry at all. As a friend queried from me the other day ‘do you see the Chief Justice as blameless?’ My answer to this question was short and to the point. ‘No Chief Justice since 1999 can be considered as blameless in regard to the current plight of Sri Lanka’s judiciary.’ On Saturday, former Justice of the Supreme Court, CV Wigneswaran put the matter very well when speaking at the meeting of the Judicial Services Association and after dwelling on the evils of the 18th Amendment, he reminded that ‘honest reflection’ shows that the judiciary itself played a part in the gradual aggrandizement of the executive.

Redeeming a forsaken courage

The Chief Justice’s admonition at this same meeting was that sitting judges should stay out of politics. Certainly when the judiciary becomes politicised internally, it is worthless talking of ideals and principles. What needs to be done is now to save what we have left and to painfully work back to regain what we have lost. Perhaps that task may be impossible. Yet we need to try. In that process, educating the ordinary citizen in regard to the value of an independent judiciary may be insuperably difficult when the practical meaning of that word has been lost to us for the past so many years.

But it is imperative that this is done.Otherwise, if the anti-impeachment struggle is merely seen as an abstract clash between the judiciary and the legislature/executive, then its sustainability will inevitably be doubtful. The next few months will prove these truths in good measure. But for the moment and for the first time in years, we can rest assured that this Government has been taken aback at the ferocity of the opposition that it has seen so far. At the closing of the old year, these slim victories will

Print Friendly, PDF & Email

Latest comments

  • 0
    0

    Govt should see reason and compromise, otherwise this conflict will rage on through the next year making their administration untenable. In addition to the external forces they now face the ire of the intellectual and professional community within the country. Very soon the working class and masses could join in and then it would be long gone to change.

    Govts standard of governance has gone to the dogs and much retrospection and reform is neccesary to get their caravan on the road again. The president said a few days back ‘the dogs bark but the caravan moves on’. In truth this caravan is not moving it is stuck in a quagmire of corruption and nepotism. Major surgery including removal of the executive presidency is required for the patient to recover.

    The corrupt political culture needs to be thrown into the diyawanna and fresh blood brought into parliment. New educated brains, fresh, enlightened, unbiased and secular are needed to replace the putrifying grey matter of the present set of politicians in parliment.

  • 0
    0

    Kishali please do not be so negative – THINK POSITIVE and STRATEGIZE!!
    The Anti-impeachment motion is FOR REGIME CHANGE, the LANKA SPRING and the impeachment of Chamal and Mahinda Rajapakse for destroying and attempting to being grave harm and disrepute to the legislature and judiciary and the sovereign people of Lanka. It is for holding Rajapassa and his corrupt family accountable for looting the public wealth and hollowing out of state institutions..
    The anti-impeachment fight is also bout the EDUCATED and enlightened values and principles AGAINST THE UNEDUCATED HAMBANTOTA BARBARIANS and their political cronies and mafia.
    The regime is running scared.. finally, after months of hard ball the craven Rajapassa regime has agreed to the FUTA demands for less political interference in the University system by withdrawal of circulars and a salary increase – fearing that the Dons. will join the lawyers and other professionals in the SRI LANKA SPRING ON THE STREETS to IMPEACH the UNEDUCATED Rajapassa brothers and their cronies.
    Having almost ruined the university system they set upon the judiciary but seem to have come a cropper!

    • 0
      0

      Ha ha ha… nice one Dodo bird. Best way to keep your pecker clean and still… ah, never mind.

  • 0
    0

    Hurrah! The judiciary has shown its spine! Now people’s turn to stand firmly behind it. The legal fraternity is doing their part. Civil society organizations are too quite active.Religious leaders have given their message in no uncertain terms. Karu, Sajith, Dayasiri,Kirielle, Harsha, Sampanthan, Sumanthiran, Anandasangaree, Suresh Premachandran, Tilvin, Anura Kumara, Somawansa, Azad Salley, Sarath Fonseka, please come forward to give political leadership to a mass movement.

  • 0
    0

    It is an insult to the dogs if we say that “Govts standard of governance has gone to the dogs”

  • 0
    0

    THE GOONS AND THE ILLITERATE DEVIL DANCERS FROM RUHUNU AND THEIR CLAN ARE WAITING TO BE AIRLIFTED TO ONE OF THE ISLANDS IN THE CHINA SEAS.
    THE DIASPORA ARE TAGGING THEM AND THEY WILL HAVE A PRIVATE WAR OF THEIR OWN. THEY MIGHT NOT BE ABLE TO WEAR THEIR KURAKKAN SHAWL, BUT THE CHINESE WILL OFFER THEM SILK SHAWL TO PROMOTE THEIR RICE WINE.

  • 0
    0

    Well written and exposing the mischiefs of legislators. Today the legislators are reflecting face of devils and dancing in a sacred place and had brought disgrace to the Parliament and democracy as well. The CJ has stepped out boldly to query the evil thoughts of these legislators utilizing the provisions in the constitution. The process of impeaching the CJ within the ambit of the provisions of the constitution requires a careful study. One ponders whether the PSC has been formulated to be a mischief body to humiliate the Judiciary. Sri Lankan constitution is unicameral. There is no powerful Upper House similar to the American Senate. The Executive has enormous powers. If the majority of the Legislature and the Executive belongs to one party, there is an absence of the system of Checks and Balances. The Constitution of Sri Lanka has vested the power of law making with the Parliament but the law enforcement powers are vested with the Judiciary. Article 120 should be read with Article 74 of the constitution to find out which organ of the Government has the ultimate power. Article 120 of the constitution states that the Supreme Court shall have sole and exclusive jurisdiction to determine any Bill or any provision thereof is inconsistent with the constitution. Moreover, though Article 74 specifically mentions that the Parliament can appoint the Speaker which should be in accordance of the constitution and subject to the constitution, the Speaker cannot act against the constitution and if he had acted, the Supreme Court is authorized to declare that such action is void and unconstitutional. The behaviour of the Speaker appears to defeat the provisions of Article 120 of the Constitution. Such action of the Speaker can be termed as ‘intentional violation of the constitution’ and becomes subject to judicial scrutiny. No sooner the Supreme Court declares that it is unconstitutional, the President has no power to enforce it. In addition, the Parliament is under an obligation to abide by the orders of the Supreme Court, as the power given by the constitution to the Supreme Court gains priority. Mention should be made that the Supreme Court acts as Upper Guardian of democracy to monitor the activities of the legislators with the view to protect the sovereignty of the people. At this stage the allegation that the people’s sovereign rests with the parliament become meaningless. In other words, Article 120 of the Constitution has the force of suspending the operation of Article 74 (i.e. the rights of the Speaker and the legislators can be stripped for the time being or even can be penalized if they refuse to bound by the decision of the Supreme Court for creating chaos in the country) for the time being until the determination by the Supreme Court. This is where the CJ stands up firm and signals that the system of Checks and Balances operates when the Supreme Court lifts the vail of the legislators to determine their evil motive. Hence if the nature of the Parliamentary Privilege goes beyond the extent of violating the provisions of the constitution with the identification of their evil motive, then the Courts have the absolute right to go beyond a level to the extent of safeguarding the matters of the welfare of the people and in the best interests of justice.
    In addition, the hasty decisions of the MR Government to allege that it has two-thirds majority are also questionable. There are pending cases in the Courts against the Parliamentarians who had crossed over. The courts have yet to give a verdict on this issue as they are deemed to have violated the sovereignty of the voters. The Attorney-General has no authority to give an advice on such national issue, but should have referred to the Supreme Court. As such, it is clear the Government is instrumental for creating a constitutional crisis.

  • 0
    0

    if people have made such agitation for the murder of 40,000 Tamil civilians instead of encouraging it, if they have made agitation aginst the murdering of tamils by the state starting from 1856, Country would not have come to this state.

    • 0
      0

      You are absolutely right Raja. At that time we were still at “First they came for the Tamils but I didn’t raise my voice because I was not a Tamil” stage. And the war didn’t help those supportive of the Tamils either. Even in the US, granting of civil rights was not voluntary, but were forced on many because reasonable people managed to make up the majority. I don’t see the making of that “reasonable majority” in Sri Lanka in the next few decades. Oh, but how I wish I am absolutely wrong on this one.

      When I saw the blatant lying and deceitfulness of MR, I had to conclude that he will not make a good leader, all the while hoping I was wrong. God knows, this country can use a good leader. The difference is, most people in Sri Lanka, hope for the best, even in the face of increasing evidence to the contrary. Is it a religious thing?

    • 0
      0

      Why only Tamils. After all the state has killed far more Sinhala people over the same period. So please do not make this an ethnic issue. It should be a simple Human Rights Issue.

  • 0
    0

    “As a friend queried from me the other day ‘do you see the Chief Justice as blameless?’ My answer to this question was short and to the point. ‘No Chief Justice since 1999 can be considered as blameless in regard to the current plight of Sri Lanka’s judiciary.”

    Really???? How about trotting out some examples of ‘blame’? :)

  • 0
    0

    Malinda, are you unable to read??…

    …have you not noticed Kishali’s consistent denunciations of Sarath Silva for the past many years, when he was Chief Justice and even after he retired? Even when this Silva was running alongside Fonseka against MR.

    A favourite tactic of you govt characters is to say that those who hated Silva at one point loved him when he started opposing MR. Well, not this writer from what I have read. She has been one of the few strongest writers.

    If you want to score brownie points with your masters that be – try to raise points that are valid instead of nonsense that can be easily demolished. For people who are dishonest, it may be difficult to come up against strong and genuine arguments on where we have all failed and defeat them.

    Lies do not work. Manipulation does not work. Propaganda does not work. People now know the truth. Learn from your mistakes.

  • 0
    0

    More to the point, Kishali’s own article indicates where this blame should lie – where the current Chief Justice is concerned which is what Malinda is most concerned about and where he has tried to be clever in asking for examples of ‘blame’ – when Shirani B. gave the nod to the 18th Amendment. J. Wigneswaran also says that.

    Alas! these are threads in the writing that blind characters like Malinda and his ilk cannot see or refuse to see. No surprise after all!

    It is on the 18th A. that the entire Bench should have been impeached for if you ask me!

Leave A Comment

Comments should not exceed 200 words. Embedding external links and writing in capital letters are discouraged. Commenting is automatically disabled after 7 days and approval may take up to 24 hours. Please read our Comments Policy for further details. Your email address will not be published.