25 September, 2020

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Has The Deputy Speaker Let The Cat Out Of The Bag?

By Elmore Perera

Elmore Perera

In a comprehensive interview after the Supreme Court determination that the PSC (that found the CJ guilty) was unconstitutional, the Deputy Speaker who is an Attorney-at-Law asserted on 4th January 2013 that “the government does not wish to see the country descend to anarchy”. He defended the PSC process by stating that “the PSC was only mandated to investigate and report” and “it was not mandated to make a “finding of guilt”. This is tantamount to an assertion that the purported finding of guilt in respect of three charges, arrived at by the PSC, is outside the mandate given to the PSC by Parliament, and therefore ab initio void. The irresistible presumption is that all advice tendered by him to the Speaker, the Chairman and Members of the PSC and anyone else who thought it fit to seek his opinion on this matter, prior to the aforementioned determination of the Supreme Court, would have been consistent with that unambiguous view of his.

That was indeed the mandate given to the PSC chaired by R. Premadasa and including Ranil  Wickremasinghe, appointed on 4th April 1984 in terms of Standing Order 94 to investigate and report regarding allegations against Chief Justice Samarakoon. That PSC conducted an ex-parte investigation for more than four months and submitted their report on 9th August 1984 recommending that appropriate action be taken.

In terms of Standing Order 78A which had been hurriedly adopted in Parliament on 4th April 1984, a PSC with Lalith Athulathmudali as Chairman was appointed, also to inquire into and report to Parliament on the allegations referred to in a Resolution of 57 MPs placed on the Order paper of Parliament on 5th September 1984.

Chief Justice Samarakoon had refused to recognise the right of the earlier PSC to question him. He was, in any event, due to retire shortly thereafter on reaching the age of mandatory retirement on 21st October. He asserted that the action taken by the PSC was not in accordance with the Constitution and he had to protest at the very outset against the PSC proceeding with the inquiry as he did not want to be a party to the erosion of the independence of the Judiciary of which he was the Head. The six Government members of the PSC reported that the standard of proof required is very high and that they cannot come to the conclusion that the CJ was guilty of proved misbehaviour. The three opposition members, viz. Anura Bandaranaike, Dinesh Gunawardena and Sarath Muttetuwegama reported that “in seeking through this PSC to act under the provisions of Standing Order 78A, the Constitution of Sri Lanka was in fact being violated”, urged the President to refer this matter to the Supreme Court  for an authoritative decision and recommended amendment of  Standing Order 78A along the lines of the Indian provisions where the process of inquiry which preceded the resolution for the removal of a Supreme Court Judge should be conducted by Judges chosen by the Speaker from a panel appointed for this purpose.

That limited mandate to inquire and report was presumably the only mandate given to the PSC that Speaker Anura Bandaranaike appointed on receipt of the resolution to impeach Sarath N. Silva Chief Justice in 2001, and therefore could not be restricted by the Supreme Court. It was because Sarath N. Silva could not accept any other’s right to investigate what he considered to be his “squeaky clean” activities that, without making any attempt to have Standing Order 78A invalidated or amended, he prevailed on the President (who had appointed him as Chief Justice in spite of wide ranging protests) to prorogue and then dissolve Parliament exercising the powers vested in her by the same Constitution, as that was   the only possible means of his escaping impeachment. Not surprisingly, the said Sarath N. Silva is now pontificating on the virtues of Standing Order 78A.

On 31st December 2012, Cabinet Minister and member of the PSC Susil Premajayantha, also an Attorney-at-Law, stated that “the impeachment inquiry is not a legal probe but a legislative process and therefore proving of charges is not necessary”.

On 2nd January 2013 Leader of the House, Minister and member of the PSC, Nimal Siripala de Silva, Attorney-at-Law stated that the government was not worried about criticism by the International Community and would not, under any circumstances reverse the impeachment process.

On 3rd January 2013 the Supreme Court determination that “the PSC has no legal power or authority to find a judge guilty, as Standing Order 78A is not law,” was announced in the Court of Appeal.

On 4th January 2013 as aforementioned, the Deputy Speaker stated what he honestly believed were the limits of the mandate given to the Parliamentary Select Committee.

Even as the Court of Appeal is considering submissions in the Court of Appeal for the issue of a Writ quashing the purported findings of guilt made by the PSC, the Party Leaders have met this (7th January 2013) morning, at the Parliamentary Leaders meeting. On being informed by the Speaker that the relevant Supreme Court determination was not recognised by Parliament, the representatives of all opposition parties walked out of the meeting. The Deputy Speaker, in a vain attempt to put the cat back into the bag, had stated that the  government representatives and the Speaker have decided to debate the PSC report on the 10th and 11th of January and take a vote at 6.30 p.m. on the 11th.

The obstinacy displayed by the Government will inevitably translate into anarchy in the event that the Court of Appeal quashes the “findings” of the PSC and the Government insists on having its own way in this matter. We are, indeed, living in momentous, if not disastrous times. The clock keeps ticking.

Will sanity prevail? Or, will we have to moan, “Oh Justice, thou art fled to brutish beasts and men have lost their reason.”

Quo vadis, Mother Lanka?

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

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Latest comments

  • 0
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    There is no use seeking justice or rationality from these uneducated uncultured bastards. The phrase has now been repeated over and over on many occasions, but it is still very seldom that someone says, “we want to end this regime, they are the cause of our suffering, we want to establish our own government very soon”!

    • 0
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      End this regime? By whom? The people or the diaspora? If by people start your campaign now. But with whom? UNP, JVP,JHU, TNA? If by diaspora then establish the right contacts now.If all silvas of this country get together, it will be a big force.

    • 0
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      Join the LANKA SPRING – the People’s March on 10th January to save democracy in Lanka!
      The Lawyers Collective has requested all those who value and uphold democracy to join hands to demonstrate, even at the eleventh hour, to take all peaceful steps to stop the unlawful impeachment against the Chief Justice.
      We remind all Sri Lankans that this is the first time ever that a Supreme Court decision is deliberately violated by the Executive and Parliament, indicating the level to which democracy has deteriorated in our country.
      We invite individuals, political parties, trade unions and civil society to join us for the People’s March on 10th January at 10 am commencing from the Superior Courts Complex. Your participation will make the national and international community realise that the public do not approve the government’s decision to ignore the Supreme Court judgement.

  • 0
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    Since parliment is acting above the law, can this privilege be extended to all the citizens of the country? After all it is they who appoint these representatives to parliment.

    If all and sundry were to adopt such a libertine attitude what would be the result? No more highway code. No need for police. No more courts. No Jails. No need to pay our taxes. We could levy an additional 10% on our salary for the work we do etc. Indeed it would be like all of us got into parliment, a truly heavenly experience.

  • 0
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    This regime will never listen to reason. They keep parroting that Parliament is supreme and the Supreme court has no right to interfere with the functioning of that`august body.Time has come for the people to administer `shock treatment’ to this regime.’ We are heading for an anarchy and people from all walks of life must prepare themselves to meet this eventuality. Let us unite to bring this regime to its knees by democratic means!

  • 0
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    Good has to prevail over evil !
    Despite temporary aberrations , history has proved that Good will
    triumph over evil .
    This nation has been through very trying times ; but resilient
    enough to bounce back to sanity . But only as long as we remain
    Democratic and respect the Rule of Law !
    The people are SUPREME ! It is the PEOPLE , at the end of it all ,
    who will decide the form of Governance in this country .
    Or will they ???

  • 0
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    The UNP were willing to handover one third of SriLanka to the Sun God Prabakaran and also were willing to make him the Chief Minister of the North and East. Why worry about an impeachment of a dodgy Chief Justice? She was appointed by Mahinda but she was found to be of questionable character. So what Mahinda could not tell before hand the CJ was going to be like that? He appointed CJ in good faith and why blame him for that. Once Mahinda leaves the Presidency the spineless UNP and the extremist JVP will ruin this country and the Tigers will be back and will take over the country. Sudu Akka

    • 0
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      S.Akke”one third of SriLanka to the Sun God”
      Mokada baan Sun God! You know the sweat shop owner who does the lighting for Mihintale on Poson day? ABAN; her god is the sun and compound interest Choksy is the high priest- all from Iran known as Parses and religion is Zoroastrianism(worship of the sun).
      There are 130k families in the world and 30 kallathonies families in SL who Rajaporkistan favours over the natives.Little wonder CT does not publish your crap.

  • 0
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    Why are my comments not published and only anti government views are published? is this your medua freedom? A am writing to the government about this matter.Prabakaran once said that the Sinhalese people have very short memories. Have you ever come across a Tamil who publicly condemns the Tiger terrorists even if they had killed their own family members and fellow Tamils? Answer is no. Look at all the Singhala traitors and big mouthed Pundits who continuously attack our great leader Mahinda. It is the Singhalese way. These Singhalese traitors were very quiet when LTTE and JVP were killing the Singhalese. Now they have come out of the woodwork and abuse Mahinda and his government who saved the Country. The UNP were willing to handover one third of SriLanka to the Sun God Prabakaran and also were willing to make him the Chief Minister of the North and East. Why worry about an impeachment of a dodgy Chief Justice? She was appointed by Mahinda but she was found to be of questionable character. So what Mahinda could not tell before hand the CJ was going to be like that? He appointed CJ in good faith and why blame him for that. Once Mahinda leaves the Presidency the spineless UNP and the extremist JVP will ruin this country and the Tigers will be back and will take over the country. Still the Singhala traitors will be happy and will be ready to lick the terrorists boots. You Singhalese traitors you deserve this. You Singhalese you are doomed. Sudu Akka

    • 0
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      You racist scum bag and if what we have seen so far is a sample of what you represent and your other views are more extreme which the Editors found difficult to publish Lord Buddha help Sri Lanka. But even he will find it difficult to come to terms with your message of hatred and sadly the vast majority of your countrymen hold similar views to yours and MR is safe for only another 12 months for reasons which you wont know.

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