By Colombo Telegraph –

Prof. Rajiva Wijesinha, national list MP from the ruling party speaks to Ranga Jayasuriya of LAKBIMAnEWS about why he refused to sign the resolution that called for the impeachment of the chief justice and how he feels about the erosion of democracy in the country under the very regime he is serving in. 

We published below the full text of the interview;

You are one of the government MPs who did not sign the resolution that called for the impeachment of the incumbent chief justice. Why?

In the first place, I was simply asked to come over and sign the impeachment resolution, and told it could not be sent to me to read beforehand. Obviously one should not sign, or commit to sign, what one has not seen.

Thirdly, the President had said very clearly some days earlier that no action should be taken against the Chief Justice, so I was not sure whether this was being done after proper consultation. I am aware that some things are done in his name without him knowing, as had happened for instance when my colleague Malini Fonseka was asked to resign and she later found out that this was not his wish at all.

Unfortunately it would seem that the President had been advised by those who did not have his best interests at heart. While there were certainly problems with the judiciary – and ironically, despite my distaste for the impeachment, I had been pointing these out over the year, since I found they were not concerned with adopting due processes in the interests of our Human Rights Agenda – these should have been solved in terms of long-term reform. There was no need to use a sledge hammer to crack a nut, as I noted in one of the Human Rights Watch articles I have been writing since March.

There is definite evidence to suggest that the whole affair of the impeachment was politically motivated. Ex: the composition of the Parliamentary Select Committee; the disrespectful treatment of the chief justice by some PSC members, about which she has now complained to the Speaker; the ruling party organized anti- CJ protests . What is your view?

I don’t think the elements you cite are evidence that the impeachment was politically motivated, though I would agree that the PSC should not have included MPs as to whom it could be alleged that there was a conflict of interest, because of cases involving them the Chief Justice had heard.

With regard to disrespectful treatment, I fear that that has nothing to do with politics, it is part of the culture of Parliament, as I used to find when I attended Parliament for meetings of the Committee on Public Enterprises. The fact that COPE is now a dignified body that public servants are happy to attend, as one very senior public servant informed me some time back, is a tribute to the civilizing effect that a good chairman like D E W Gunasekara can have. In that regard I am told that the change wrought by the present Speaker in Parliament is remarkable compared with what we had before, though unfortunately he has not been able as yet to change the culture as a whole.

The demonstrations that have been organized are also part of what I see as a destructive culture, as are those demonstrations organized by those supporting the Chief Justice, and they make it clear that everything in this country is political.

Unfortunately the sanctions procedures in Parliament, as used against Mrs Bandaranaike and others whose Civil Rights were taken away, as also against former Chief Justices, has been ruthlessly politicized from the start. We need through structural reforms to get rid of this appalling culture that was introduced by President Jayewardene.

Do you believe that the existing procedure pertaining to the impeachment of judges that is set out in Standing Order 78 A and the constitutional provisions are fair?

No, it is not fair. The Liberal Party has issued a statement concerning this, making it clear that in our view, since

‘the Standing Orders seem to be in violation of the Constitution, it would be best to amend the Standing Orders, and perhaps the Select Committee should recommend this. This can certainly be done for the present case, given that the time prescribed can be extended.
the Standing Orders seem to be in violation of the Constitution, it would be best to amend the Standing Orders, and perhaps the Select Committee should recommend this. This can certainly be done for the present case, given that the time prescribed can be extended.Alternately, the Select Committee could appoint a Sub-Committee with former judges of the Supreme Court forming a majority, to assist in the investigation. Such assistance seems essential since what appear to be the principal and indeed only charges possibly warranting impeachment, those relating to financial misbehaviour, clearly require judicial investigation before any decision can be reached.’

Our statements on the subject can be accessed at www.liberalparty-srilanka.org

The ruling of the PSC was reached in an unholy haste, after the chief justice pulled out from hearings, understandable enough, challenging its integrity. Do you think that the CJ was given a fair trial? (The CJ had been given 1000 pages of document and told to respond within less than 24 hours; her lawyers were not given access to documents supporting charges levelled her; she had been verbally abused by the government members of the PSC during the proceedings).

I have no idea exactly what went on inside the Select Committee, but certainly if what you say is correct, it was grossly unfair. In particular, to be expected to respond to 1000 pages of documents in a day is absurd. Given that the Select Committee itself decided, without getting any response, that several of the charges should not be pursued, it would have been wrong to pile up questions regarding those charges. The impression created is that there were efforts to intimidate the lady and, if this is correct, it is not only wrong, but also foolish since it would build up sympathy for her.

Mature democracies, when impeaching their judges conduct themselves in amuch more transparent and legitimate matter. In your opinion, what lessons can Sri Lanka draw from their experience? Can you suggest any specific cases?

The Liberal Party, in its first statement on the subject, went at length into the procedure followed by the Philippines, where the Chief Justice was recently impeached. A judicial process was followed, and the evidence produced seemed incontrovertible. Unfortunately we have a ridiculous Standing Order, which no one has thought of amending for nearly 30 years. The fact that we only look at problem areas when problems arise is perhaps the best evidence that we are not mature at all. The failure for over two years to convene the Committee to amend Standing Orders is symptomatic of the frivolousness with which we approach politics. To my horror, no one has responded to my regular pleas to get this going again, even when I put these in writing.

The impeachment of the chief justice portends a grave threat to the independence of the judiciary in this country. Do you agree?

My own view is that the independence of the judiciary in this country is a myth. There are several reasons for this. Firstly, the 1978 Constitution saw sitting judges kicked out, because all judges were deemed to have vacated office when the new Constitution came into operation, and the President had sole power to appoint judges. He left out several judges, and except from the political opposition there were no protests.

Secondly, judges did his political bidding, as in the case of the Special Presidential Commission against Mrs Bandaranaike and others, where judicial norms were cast to the wind. Again, the protests about this came almost entirely from the political opposition. I have written about what happened to the Colombo Telegraph and I hope those concerned about the current situation will also reflect on what happened then.

Thirdly, he began the practice of giving Supreme Court judges prestigious appointments, which creates dependency. That has continued.

Fourthly, while the 18th Amendment at least introduces an opportunity to discuss presidential choices and influence them – even though sadly the Opposition does not take its responsibilities seriously in this regard, as we saw when the present Chief Justice was appointed despite the various allegations that the Opposition was then making against her – within the judiciary there is total dependence on the Chief Justice. And as far as the Judiciary is concerned, there is no accountability whatsoever.

Fifth, the failure to institute Rules of Procedure has left far too much discretion to members of the Judiciary, and this is abused as we know from the influence lawyers exercise with regard to postponements etc, so that the interests of the public are not served.

I can only hope that, instead of impeaching the Chief Justice, government addresses these issues, and through constitutional reforms introduces processes that increase not only the independence of the Judiciary but also transparency with regard to procedures and accountability to the public.

Being a liberal and an advocate of liberal constitutionalism, are you alarmed by the negation of those very values in our country?

I have been alarmed by the failure to even look at constitutional principles since 1977. It is extremely sad that the President, who now commands a two thirds majority, has not tried to introduce at least a few amendments by consensus to change the prevailing culture. I do not think this is his fault, for I have been present when he has for instance urged the introduction of a Second Chamber, which it is generally agreed is a good thing. But those who advise him in this regard have no sense of urgency, and I fear little conceptual capacity except with regard to self interest – which they confuse with the interests of the President and the country. As we can see from the way they have advised him with regard to the impeachment, they think only of emotional responses to problems, and cater to these, rather than advising principled reform that would overcome the immediate problem and also ensure that it does not recur in the future.

How do you view the prevailing trend of consolidation of powers by the executive, who has successfully made the legislature more or less a rubber stamp?

The consolidation of power by the Executive is inevitable under a Westminster style constitution. As you know, in the 19th century the complaint was that the power of Parliament had been taken over by the Cabinet, and in the 20th century, in Britain, constitutional theorists pointed out that the power of the Cabinet had been taken over by the Prime Minister. This is inevitable if you have the executive within the Legislature, which is why we should look more seriously at the American model which entrenches a Separation of Powers.

You must recognize that the legislature was made a rubber stamp by the 1978 constitution with its expulsion provisions. Even though various Court decisions have made those provisions virtually null and void, Jayewardene also began the process of using a carrot instead of a stick, when he gave Ministerial appointments to well over two thirds of the members of Parliament on his side.

Also, perhaps because of the lopsided majorities of two successive Parliaments of the seventies, the Committee system was destroyed, and there is no way for parliamentarians to have inputs into policy. Their interactions with Ministers are confined to seeking benefits for their constituents, and it is rarely that anything more is discussed in Consultative Committees. There are a few exceptions, but it is not often that we see any practical outcomes of conceptual issues that are raised.

If you are to quantify the level of democracy in the country, ( 10 being the best and 0 being the worst) in terms of rule of law, checks and balances, separation of power etc, what mark would you give to Sri Lanka under the current regime?

I would give Sri Lanka a fairly low mark, but point out that we are still doing much better than most other countries in the world, if only because we have regularly, except in the eighties, had elections which resulted in the government the people wanted. I believe that, if we change our current electoral system – which is the worst in the world if we consider only countries where free elections are the norm – things would certainly improve, since we might get more parliamentarians who are concerned with political principles, instead of having to think all the time about how they are going to do better than their colleagues as well as their opponents.

We must also think seriously about reducing the number of professional politicians who exercise power coterminously, which makes life very difficult for administrators, who have to take the wishes of Pradeshiya Sabha Members, Provincial Council Members and Parliamentarians into consideration. This makes pursuing consistent policies effectively very difficult. Instead of a separation of powers, we have the multiplication of power, through different elected representatives working in the same area, as well as through different Ministries working in the same field. It is scarcely surprising that we have confusion and a minimum sense of responsibility in those who have to implement decisions.

Which mark could you have given to the predecessor of the Rajapaksa regime, the Chandrika Kumaratunga administration or to Ranil Wickremesinghe on the same indicators?

I would give similar low marks to previous regimes, though not as low as I would have given the Jayewardene regime, when power was absolute and we had no free media, when professionals were either co-opted or silent, and when we did not even have the relief of regular elections.

Though in Ranil Wickremesinghe’s time you had a President of a different political persuasion, the manner in which she was ignored meant that authoritarianism was equally bad – and bad behavior common then too, as in the reports of how President Kumaratunga was treated at Cabinet meetings, on a par perhaps with what we are told happened to the Chief Justice in Parliament.

Do you feel uneasy in the midst of fellow travellers of liberalism/ liberal democracy in those conferences and other events you frequently attend, for the simple fact the government that you represent have flouted so brazenly, those very values you and fellow liberals advocate?

Not at all, since our record on democracy is comparatively good compared with countries where elections are deeply flawed. Liberals who follow the situation in Sri Lanka, as opposed to the few who simply believe what they are told by propaganda machines, appreciate the achievements of this government. You have to remember that Liberals are generally in coalitions, and know the constraints of working with those who are the best of the available alternatives but who necessarily do not share one’s whole vision. They have known me now for over quarter of a century, and they have known the principles of the Liberal Party, and they know that we will stand by those principles while also in general supporting a government that has done more for the people of this country than any other during this quarter century.

Can you see an Arab spring or a coloured revolution happening here, any time soon?

Not at all, since those revolutions happened in countries which had not had democratic elections for ages. The bottom line in Sri Lanka is that the President is very clearly the choice of the people. Even though those who advocate an Arab Spring type change were of the view that the people wanted Sarath Fonseka as President, the people of Sri Lanka had a very different view of things.

I should note though that I hope the President realizes that the popularity of this government rests on his shoulders, and takes a few tough decisions with regard to reform, instead of worrying about whether he might lose his Parliamentary majority. Though I can understand his diffidence, given what happened to President Kumaratunga in 2000 when both the TULF and the UNP reneged on its commitments, and also given the cynicism of both TNA and UNP and those who supported their position in the international arena who preferred Sarath Fonseka to the President, he should realize that the people of this country will support the reforms he has pledged in his manifestos.

His advisers should support him in those pledges, as in the excellent radical reforms he spells out in budget speeches, instead of encouraging divisive measures such as the impeachment of a Chief Justice who is certainly flawed, but who does not deserve impeachment. They must recognize that she is simply behaving in a manner that our failure to institute proper procedures has encouraged over the years, and we should work now towards institutionalizing procedures that encourage efficiency and transparency.