By 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