13 December, 2017

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Impeachment And Dilemma Of Independent Judiciary

By Kamal Nissanka

Kamal Nissanka

If my recollection is correct from Sir Edmund Codrington Carrington the first Chief Justice of Ceylon (maritime areas) to the Hon Dr (Mrs.)Shirani Bandaranayake there had been 43 chief justices in Ceylon and Sri Lanka. After the introduction of the 1978 Republican Constitution the judiciary was under eight Chief Justices beginning from Hon Mr.Neville Samarakoon to incumbent Dr (Mrs.). Shirani Bandaranayake. Out of eight Chief Justices three were destined to face impeachments. It is noted that Impeachment motions of both Hon Mr. Samarakonn and Hon.Dr (Mrs)Bandaranayake were initiated by the respective governing parties in the parliament  of the day under  the tenure  of respective Presidents. The two impeachment motions against   former Chief Justice Mr.Sarath Nanda Silva were initiated by then governing United National Party (UNP) government without the blessings of the President Mrs.Chandrika Kumaratunga. Mr. Silva was lucky to evade from the impeachments firstly as a result of proroguing the parliament and secondly by dissolution of the parliament by Mrs Kumaratunga. According to Sunday Leader of 28th September 2008 in an article written by  Ms. Sonali Samarasinghe (MR gets set to battle the judiciary as war takes its toll on IDP)an attempt had been taken to impeach Hon  Mr.Saleem Marzoof,  a  judge  of  the  present  Supreme Court  against a  comment made by him on non implementation of 17th amendment to the constitution.(17th amendment to the constitution is repealed now)

So, under this 1978 constitution as at present isn’t that there is a chance of 37.5 percent for a Chief Justice to be impeached?  If this is so, it is a grave situation and I must suggest that this unfortunate occurrence should be a deep concern to all honorable judges in Sri Lanka specially the superior court judges. In scrutinizing the   manner of appointments of these three judges who faced or facing impeachment one salient feature that could be clearly identified is that all three were not carrier judges.  For some reasons , late Mr.J.R. Jayawardene ,  former President ,founder of the 1978 constitution had relied and trusted  on  Mr. Samarakoon ,a  respected lawyer among the legal fraternity but  who at a crucial stage of the understanding of the  present constitution  felt that  the judiciary in Sri Lanka was not independent  as same as  under the Soulbury  Constitution. Further he clearly understood that the president of the day, his personal friend was marching expressly towards authoritarianism under the blessings of his draconian constitution. A man of principles and much respected Chief Justice Mr.  Neville Samarakoon courageously faced the proceedings of “Standing Orders” which were solely framed to trial him under the direction of his estranged friend, Mr. J.R.Jayawardene. (Similar to the Criminal Justice Commission that was formed to try Mr. Rohana Wijeweera in 1971 or 1972)

Mr.Sarath Nanda Silva was the most long standing Chief Justice after the introduction of 1978 constitution. He had been on the respected seat for ten years.  Mr. Silva who hailed from Katana was regarded a personal friend of late Mr.Vijaya Kumaratunga, actor turned politician of the same locality, the husband of former President Mrs. Chandrika Kumaratunga. President Kumaratunga who always had a style of working with trustworthy friends wanted to bring Mr. Silva,  who started his legal carrier at the Attorney General’s Department, later  as a judge in the Court of Appeal (also President),  sometime later as a judge  in the Supreme Court    to the post  of Chief Justice for reasons best known to her. Elevation of Mr. Sarath  Nanda Silva to the highly respected post was also regarded as a political appointment.

However by the end of 2005 the the working rapport between the Chief Justice Mr. Sarath Silva and President Mrs.Chandrika Kumaratunga seemed to have been diluted.  An application for question of interpretation regarding the duration of the term of the President who have been elected to second term was before the Supreme Court for interpretation. During the period of the proceedings of this case articles appeared in the media that the former President had taken a secret oath before Mr. Silva for some other reason.  It should be noted that Just after the 1999 Presidential Election Mrs. Chandrika Kumaratunga took an oath before CJ in public but an article written by Mr.Rohan Edirisinghe (Senior Lecturer, Faculty of Law, University of Colombo) and another article written by late Presidential Counsel Mr.H.L. de Silva maintained the view that it was not the time, an oath to have been taken as the remaining period of her first term of the President Kumaratunga   had by then not yet been over.

At the time of filing case for interpretation of the Presidential term Mr. Silva‘s good relationship with Mrs.  Kumaratunga was in descending status. The SC under Mr. Silva delivered the judgment declaring the period of Chandrika ends on a certain date.

When President Mr. Mahinda Rajapakse won the 2005 presidential election he had to take the oath before Mr. Silva, the Chief Justice.  No doubt he was one of the architects, in fact a decisive architect of 2005 victory of Mr. Rajapakse. However his relationship, a personal friend of Mr. Rajapakse did not last long and the UNP and alternative media was also attacking him on numerous allegations.  Mr. Silva suddenly found that the immense power he could wield through the post of Chief Justice and dared to deliver some people friendly but anti government judgments. He exhibiting his authority dared to punish Mr. S.B.Dissanatake, then UNP parliamentarian. Thus Mr. Sarath Silva became a Frankenstein; the Executive President was not in a position to control him during his last few years in the office.  With his retirement the President found a tamed Chief Justice in the apex court who is now an advisor to the President

Hon Dr (Mrs.) Shirani Bandaranayake no doubt in every sense a clear cut political appointee was appointed to the Supreme Court  in 1996 by then President Mrs.Chandrika Kumaratunga while serving as a an academic in the University of Colombo. There was unrest in the higher legal circles including the judges during her appointment, however she remained there and gradually became the most senior Supreme Court judge at the end of Mr.Asoka de Silva’s tenure.  At this juncture it is interesting analyze the episode of Chief Justice’s husband who was suddenly appointed to high profile financial posts and later involved in a financial scandal. It seemed that CJ was in very good terms with President initially. However matters were not so conducive and an estrangement had been developed between the two.  Now there is a question as to whether the appointments offered to Chief justice’s husband were given by the President on Mrs. Shirani Bandaranayake’s own request or by President himself as a future taming strategy on the Chief Justice?

Unlike in the first two impeachments, this time a question is posed by the legal community as to the constitutionality of standing order 78 A, as to the jurisdiction of the  Parliamentary Select Committee(PSE.) These issues will be determined in near future. It should be noted by all including the lawyers representing the PSE as well as lawyers who signed the impeachment motion as members of parliament that the interpretation of the constitution only could be done by the Supreme Court itself and abiding by any decision thereof is a must to any lawyer whose enrollment as well as removal is within the wielding power of the court. The Supreme Court by requesting the PSE not to proceed with until it determination has exemplary shown its maturity and judicial temperament.

For judges and lawyers and the legal fraternity, it is not a question of safeguarding the Chief Justice but a mission bestowed upon them by circumstances and nature to safeguard the integrity, independence and self respect of the judiciary.  I think CJ as of now, is also fighting to achieve the same objective as ours, the people’s sovereign right of the independence of judiciary.   If not within the sight of the hangman, within sight of gallows she would not have opted to have chosen the difficult path of facing the challenge at this difficult moment. As in the field of politics the legal profession is also not without jokers and court jesters.  These jokers may suggest the chief justice to resign but what we need is the ongoing debate. The non resignation will definitely intensify the debate. The Bar and the Bench have no option but work in unison to safeguard the self respect and independence of the judiciary not becoming a passive stooge of any branch of state.

From the retirement of Mr. Neville Samarakoon up to date it is almost over three decades and it is evident that  during this concerned period  number of constitutional issues , writ issues and  fundamental right applications   were  argued and determined by superior courts to produce a  set of  highly valued challenging judgments as a result of dedication of legal  luminaries of both judiciary(Bench) and Bar which lacked at the time of impeachment of  Mr. Neville Samarakoon.

However, the impact of three examples of impeachments against three Chief Justices places us in a precarious political-legal trap.  A President is always is in search of a tamed Chief Justice who could be manipulated to his own tunes, whims and fancies. On the other hand an upright, erudite, honest, intelligent, reasonable judge akin to new developments in the international arena cannot be submissive to  a President who clearly manifests dictatorial and authoritarian tendency, in other words to a disciple of Machiavelli. Therefore it seems that the plea for independence of judiciary under the 1978 constitution to be a myth.

*Writer is the Secretary General of the Liberal Party of Sri Lanka,  Attorney-at-Law, BA (Hon), PgD(International Relations)

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Latest comments

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    It is good that this crisis surfaced and Her Ladyship has chosen to clear up the path for the future. Whatever the outcome for her, the flaws in the system have been exposed and the present fight is to correct these and uphold the independence of the Judiciary for the good of the country. Parliment too must take this view and not persist in following a flawed and farcial system. At least now take steps to reject the mistakes of JR and successive regimes.

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    Irrespacatvie who is helm in the of POWER (State) President of Democray Socialist Republice Of Sri lankan in more or less Dicatorship of Bourgesios STATE, Goverance of control by Capitalist class few handful interest of RICH by PRESIDENT OF SL.
    This liberal Party talk of out-dated CONVERSATIVE and ORTHDOX THEORY OF DEAD FROM THE NACK UP OR DEAD TO THE WORLD, POLICIAL-ECONOMY of Adam Smith of era of Benjimine Disraely of ‘Tory Politics’ of History of England in 19 th Century.
    There is no Indepandeande State or Judiciary in Sri Lanka as whole.Judiciary mainly funcation of serve & objecative of the vital interest of Rich of new & old; as well as certin extent to poor or have-nots to be proteacted rich class of interest in vital for Judiciary of SL.
    It look at apperance be JUDICIARY of an Indepandeance ,but indeeds LOOK at CJ work,how she act and work on duty and how CJ misused power of Judiciary gain personal PROFIT herself and Husband.
    This is clear shows they are NOT for the PUBLIC,for vested interset of Local corruapated RICH and foregin corny Capitalist Classes.
    Her(CJ) that is why people’s point of view CJ’s voliated SOVERGNITY OF LAW OF LAND AND SONVERGNITY OF PEOPLE’S OF SRI LANKA.
    AS Fundamnetal and vested interest of PEOPLE OF SRI LANKA , WE ARE SUPPORT FOR IMPERACHMENT AND CORRUPATION CHARGES AGAINST CJ’S AND HER HUSBAND.WHO EVER THE MEMBERS PALIMENT BELONGS, WHAT EVER THE PARTY THEY BELONGS , WHAT THE CLASS THEY REPRESTATIVE OF PRALIMENT MEMBER ARE ELECATED BY PEOPLE OF SRI LANKA.PARLIMENT HAVING EXCLUSIVE RIGHT TO IMPERACHED CJ CORRUPATION CHARGES ON BEHALF OF PEOPLE OF SRI LANKA.
    THAT IS I CALLED SOVERGNITY OF PEOPEL’S AND SOVERGNITY PARLIMENT.NO BODY CAN CHALLAGE PARLIMENT SOVERGNITY, EXCEPT PEOPLE BY THEMSELF.

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    Today there is undoubtedly a wave of sumpathy on CJ in an attempt to Impeach her for all the wrong reasons and the Public is well aware of the reasons afoot, where the Corrupt President MR has involved the Legislature to oust her. Yes I concede it is unfortunate and unfair to victimise her in this manner, but at the same time it is important to uphold systems of governance, in their right perspective and what matters is not the person but the Office they hold. Therefore I see, although many who point the finger at this cesspit of Corruption MR at this moment of time, the Public too is guilty for their contribution for this decadence and drift. So what is important is not only an attempt to save the individual from any false charges, if not proved in a fair manner, but uphold the Sacred Office of the Judiciary which is more important. Towards that end if the society is to sweep everything under the carpet, merely to save the individual, it must be remembered that we too will be committing a flaw, we accuse the others of having committed. Therefore let sanity prevail and a finality reached.

    If by chance the CJ is removed for what ever reason, let it be remembered that whoever succeed, a Sychophant possibly as the new CJ, there lies the responsibility on this very crowd who are opposing the current move, to prevail on the rest of the Bench to motivate them with the same vigour, for the rest of the Bench to act Independently to preserve the dignity of the Judiciary, to protect Democracy from the Vultures. This is the reality and blaming RW or anyone else for maintaining decorum, Law and Order at the moment, will not help the common cause, that is to remove the cancer once and for all. It must be remembered that by resorting to undemocratic means, Democracy can not be established. Democracy could be established through Democratic means only.

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    I have send comment on my view of Impreachemnt; why is deleated by CT.
    Allow differant view in your Web page,lopsided view bring for Dictorship mass media.Free views and Free press is Pillar of any democractic society.

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    I am for democracy,not for to coverup CORRUATION, of President or Member of Parliment,they may be involve of corrupation and alligation!
    Evey right thinking PEOPLE from LEFT or RIGHT of Politics OR SINHALESE OR TAMILS OR MUSLIMS communities, KNOWS WHERE IS CORRUPATION DERIVE, ON WHOM ARE RESPONSABILITY OF SOURCES OF CORRUATION IN SRI LANKAN SOCIETY?
    I AGGRED JUDICIARY IS NOT ONLY ROOT CAUSE OF CORRUPATION, THERE ARE MANY POWER AUTHORITY HAS RESPONSABILE CORRUPATION.
    But there no excuse for CJ to ESCAPE FROM PUNISHMENT OF HER CORRUPATION CHARGES.IS NEED TO BE PROBE BY PARLIMENT IS LEGAL.
    NO ONE IS INDISPENSIBLE INCULDING CJ OR PRESIDENT OR M.O.P.
    Move agianst CJ will not lead to benevlonce dictorship in Sri Lankan quite impossible.
    Our power Of Structural of state and ruling class behivour of NOT like Pakistan or Sadui Arabia or Egypt,we have developed democractic RIGHTS, THAN EVEN DEVELOP Capitalist COUNTRIES.Our super-structure in more ADVAVCE THAN ECONOMY BASE.
    Needless TO say we having MORE VALUED AND CIVILIZED SYSTEM OF Mode Operandi, democratic Prtice, Sri Lankan since 1948 Independance with all political weakness and mistakes take into acccounts of Politiacl class and Parties.

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