4 December, 2020

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Impeachment, Moving Towards The Final Act?

By Ravi Perera

Ravi Perera

“To every subject in this land, no matter how powerful, I would use Thomas Fuller’s words over 300 years ago: “Be you never so high, the law is above you.” Lord Denning MR in Gouriet v Union of Post office Workers (1977) 1 QB 729,761-762

The seven odd Billion humans inhabiting this planet (and surely all other living beings) would have given a collective sigh of relief as the sun set on the 21 of December. Luckily for us, the Mayans who had predicted the end of it all on that day seem to have got their calculations wrong. Not too surprising, when we consider the fact that they could not even predict the coming of the Spanish (and other European races) that had such a fatal impact on their out-dated show in what is today referred to as Central America. It now seems that in the excitement of  Christmas celebrations the much talked about ending of the world will soon  recede into insignificances , another doomsday prophesy consigned to  the bin of forgotten things in the endless cycle of life. Strangely, while most rejoice   at the new lease of life, some are apparently   disappointed that the apocalypse did not happen. Apparently they even witnessed the harbingers of the coming doom, strange appearances in the sky, rains of fish and the sea turning yellow. When it comes to the human psychology,   nothing is impossible it seems.

Although the Mayan apocalypse failed to show its face, in our little Sri Lanka, particularly its constitutional/legal landscape resembles a disaster field. Once stable and seemingly immaculate legislative and judicial institutions lie low their reputations dented grievously. In the face of the relentless assertion of power by the Executive, the only role for the legislature/judiciary it appears is one that of abject compliance. As presently constituted, from the legislature the President can expect only an admiring chorus of support, whatever his action. But since of late, our judiciary, confounded   in recent times   by the ethos of the Chief Justices Sarath and Asoka Silva leadership, had begun to show signs of straining at the leash.

Theirs   was an era when judges in the superior courts took pride in alluding to personal friendships with the Executive/Legislature, creature comforts including limousines were negotiated, various benefits were obtained for spouses and children, and on retirement even rewarded with sinecures. All this was going on while they heard cases deeply political. It was evident that   the third arm of the government, the judiciary, chose to adopt the same values and methods as of the other two. Even under the present Chief Justice  as recent as six months back there were no signs of a transformation of this culture. On the contrary, we watched in deep despair when her husband was appointed by the Executive to a plum government job. Any hopes of a judicial challenge to untrammeled greed for power were dashed when the Supreme Court led by Shirani Bandaranayke let the 18 Amendment to the Constitution pass without a murmur. Last year when the President’s son was sworn-in as a lawyer, not only was the President, quite understandably accommodated ceremoniously, but privileges were extended to the young lawyer as well. Thereby, the judiciary acknowledged the current (unwritten) political dictum that the family is special and above the rest. Like in George Orwell’s famous fable the “Animal Farm”, having supped together for long, it was hard to distinguish between man and pig. The choice of pigs as the main characters in the Orwell story could not be more poignant.

The depth of our discontent was reflected even at the meeting of the Bar Association which was convened to pass two resolutions protesting the impeachment motion against the Chief Justice. While it was obvious that the resolutions had the overwhelming support of the legal fraternity, the conveners decided ,at the spur of the moment, not to take a vote ,instead opting for a  show of hands, at the best of times a doubtful method. They argued that taking a vote was cumbersome, there was a possibility of an attempt to sabotage and also that the policy of the Bar Association was to arrive at an unanimous view. It is obvious that in the circumstances prevailing that day the latter (unanimity) was out of the question. We can only observe that if a government were to take the  same attitude of avoiding an actual vote or were to demand unanimity of opinion, it would surely be called a dictatorship.   In a situation where the government simply could not win the argument on the morality of the impeachment procedure, the Bar Association was running the risk of losing   its moral ascendency by resorting to a kind of sophism.

The President’s statement that he would consult an independent committee before he acts on a recommendation (a vote) from the Parliament to impeach the Chief Justice has further confounded an already confused situation. If the Parliament is the proper forum for an impeachment motion, and if the that inquiry was held in an acceptable manner, there is no reason to have further consultations with any other body. The mere idea of an independent committee suggests that even in the mind of the President there are doubts about the correctness of the impeachment hearings. In any event, every right thinking citizen in this country, aware of our political culture, will surely have doubts about the independence and the impartiality of those hearings. Whether a committee appointed by the President could correct that perception is a moot point.

Can the President rectify the defects in the impeachment procedure by appointing a so called independent committee? To start with, the President who will appoint the Committee is a major player in   the whole impeachment process and therefore is an interested party. Thus, the committee will be appointed   by one party in this dispute.  It is not clear the basis on which the members are to be appointed to this committee. We do not know of the arrangements which would ensure the independence of the committee members. Is that person known   to the President in a personal way? Has he got a spouse or a child who wants a favour from the government sometime in the future? Going by recent happenings, the potential to compromise the integrity of such a committee is endless.

The truth is that all the Kings horses, men or committees cannot put Humpty Dumpty together again now.  Before the whole world our legislature has shown its true nature. By arrogating to itself the right to be both accuser and the judge it displayed scant regard for the concept of justice. The hurried impeachment motion launched out of the blues, against a judge who had begun to show signs of independence, offends   our sense of fair play. On the other hand, the public airing of the happenings in the highest courts of this country cannot but diminish their standing. Many of the judges have been shown to be deeply flawed personalities with an eye to the main chance. It is clear that their appreciation of the judicial role was very   faulty.

Given the culture and the character of the leading personalities of this saga we can safely predict the opposite of the things they promise. Therefore the chances are; that there would be no independent committee, the Chief Justice would be impeached at the will of the President and then replaced by a more “reliable” judge. It is also unlikely that the legal fraternity would take the battle to a finish.

A government so inured to total subjugation is unlikely to respond to faint protests. Short of a total and indefinite boycott of all courts, nothing else will register.

We must not   forget what is at stake here; “be you never so high, the law is above you”.  That is the meaning of the rule of law.

But in the end, it is unlikely that anything we do could correct a system so fundamentally rotten. There is hope for the better   only if the system   carries within it the seeds   for a resurgence and renewal.   Presently, neither our institutions nor their leaders give us that hope.

That being the case perhaps to predict the final act   we will have to turn to TS Eliot who wrote “This is the way the world ends, not with a bang but a whimper”

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Latest comments

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    Good article.

    And thank you for finally putting my doubts to rest on who actually presided over the 18th A., Shirani B. or Asoka de S., a doubt raised in earlier writings on this in CT.

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      You are so right that: “The President who will appoint the Committee is a major player in the whole impeachment process and therefore is an interested party. Thus, the committee will be appointed by one party in this dispute”.
      The denial of natural justice to the CJ is clear here and hence the lawyers must take the fight to the finish, the citizens of the country will joint the lawyers in the LANKAN SPRING for REGIME CHANGE and to impeach Mahinda Rajapakse and his corrupt family.
      Gota the white van goon says that the judiciary, trade unions, students, teachers university Profs are being used in a conspiracy against the poor innocent Rajapakse regime! The guy is in cloud cuckoo land and insults the intelligence of the Sri Lanka citizen by making such absurd statements. The people now see through the lies and spin of the Rajapassa Barbarians. Hence, the lawyers must also set in motion an impeachment process against Mahinda Rajapaksa and Chamal Rajapakse for corruption and bringing disrepute to the legislative and judicial arms by running a Kangaroo Court in the Diya-wenna Parliament.

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    Ainsley. one newspaper carried a photo, in a 2 or 3 page spread, of Bandaranayake, CJ, reading out the judgement concerning the 19th Amendment.

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    Ravi,

    A wonderful piece of erudite, perceptive and wise writing. All the king’s horses and all the king’s men may not be able to put Humpty Dumpty together again! Fortunately, the CJ episode has triggered serious doubts in the people about our system of governance and those running it. This is more than a spark! If the CJ. Is impeached or forced to run, it will have serious repercussions for this government. Even if belated and opportunistic wisdom ( or conscience as it will be called) permits The CJ to stay on, the tide has turned on how we are governed and who will govern us. The changes have to come fast enough to prevent an explosion of people’s anger. It is hard to predict how it will manifest, but something epoch making is very likely to happen in this country soon enough. We, as people’s have been passive spectators and willing victims for long. The worm is finally showing signs of turning!

    Dr.Rajasingham Narendran

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    Thank you for the information as to who cleared the monstrous 18th amendment. True lawyers civil society and all must accept the blame.If with all the views already made known to the Executive he still pursues in his drunken state of power, to do the wrong thing which will have far reaching bad effects on the country, then all lawyers as S.L.Gunasekera suggeested must refuse to accept a new CJ from the existing lot or from outside.All int’l national legal associations and the Commonwealth must act without any delay.
    Nature will take over from there as Truth ultimately prevails.

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    Boycotting and shutting down the courts for months is better than being slaves to these thieves and rogues.

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    Thank you for enlightening us on the current situation. Does anyone have any possible scenarios for either the bang or the whimper ?

    My worry is that we are in a stalemate situation with regard to change, while the economy is sliding down a slippery slope.

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    Ravi,

    Though the Mayans could not predict the Spanish invasion, Sri Lankan politicos, in spite of their publicly displayed ignorance of principles of natural justice, are capable of finding hidden hands of international conspirators in anything that is not good for the party in power.

    Explosion of people’s anger, as stated by Dr. Rajasingham in his response to your letter, will never happen for many years as long as the Manthram of the defeat of LTTE is recited by the followers of Prez MR. The large majority of MPs on the government side, do not have brain capacity to think but to remember and recite. Once elected these blind followers do not go back to their electorates to engage people in dialogue because the Leader Almighty has no brains to think of solutions to new problems surfacing after elections and the blind followers have nothing to memorize for reciting before the people.

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      Kiri Gamarala,

      We are a nation with very short memories. The bank bank balance accruing from the last war has almost run out. The people expected an improvement in the economic fortunes, as result of ending the war. this has not happened and the people cannot comprehend reasons such as the huge debt incurred to win the war. The cost of living and the corruption the people see around them have toned down the war-win euphoria. The CJ affair has exposed the fragility, ineptness and crassness of our political system, institutions and the persons who govern us as never before. The people no longer suspect, but believe something is seriously wrong. As I had said elsewhere, the worm is turning. The government has to respond to what is at present a sullen anger among the people , before it becomes an avalanche that buries it.

      The many good things that this government has done, is doing and were overdue, do not seem to matter to the people at this juncture. As one poor carpenter asked me recently, ” Api para kanda puluvantha ( can we eat the roads)?”. The government has much to learn from these simple words. The good this government has done or is doing, will be be swept away by the wrongs it is perceived to be perpetrating on an unprecedented scale.

      Dr.Rajasingham Narendran

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        At last the carpenter has made some sense to you. This is what some of us repeatedly told you.

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          The carpenter is not right! However, his perception reflects that of many and should be of concern to the government. The infra-structural development going on is required. However, it is not a substitute to paying attention to the existential needs of the people, irrespective of whether they are in the north and east or the rest of Sri Lanka. Much has been done for the war-affected in the north and east, but much more needs to be done to make their lives better and more tolerable.

          Corruption, nepotism, high handeness, abuse of power and the break down in institutions and the rule of law are not the sole responsibility of the present government. These have evolved over a long time and reached their present crescent . The JVP and LTTE phenomenon were both the result of and contributory factors to the downward slide in governance in Sri Lanka. The predecessors of the present government starting from that of D.S.Senanayake helped create the present mess. Mahinda Rajapakse is both a beneficiary and victim.

          However, what we see around us, including in the north and east, underlines the need for a revolutionary change in how we conduct our affairs and who conducts our affairs. I am definitely disappointed with Mahinda Rajapakse as I had hoped he had both the potential and the golden opportunity to lock horns with the manifold problems in Sri Lanka, including those of the Tamils after defeating the LTTE rather comprehensively. It is sad to see that he is also about to miss the bus! It is sad that he has become part of the problem. I feel sorry for Sri Lanka and all her peoples.

          Dr.Rajasingham Narendran.

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    Firstly Mayans never said the world would end on 21st. they eneded thier calender on the 21st. however Mayans as a race did not survive the invasion by the conquisthadors.
    If Mayans could not predict theirr own demise how can they prredict the end of the world. But then there were millions who beleived that the worrld would end.

    similarly there are 117 donkeys who beleive that someone is guilty as charged if they say so. then there is another set of 7 who supported this conclusion. both parties have skeletons in their cupboards. such people are the first to appearr to caast the first stone.

    It is rather unfortunate that we have not only to live with them but feed them, pay them for doing nothing but enrich themselves.

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    Fantastic article. I guess Ravi Perera, a Sinhalese like myself, will be called a Tamil Tiger Terrorist (as I have been called many many times) for saying what had to be said. Worse than a ‘Tamil Tiger’ a ‘Mother-f….g Tamil Tiger” -something i have never done to my mother. well, Chandrika Bandaranaile Kumaratunga, is my cousin. she cannot be a ‘patriot’ (which i guess she no longer is) and i a Tamil (terrorist or not). That is genetically not possible. But why worry abput genetics – especially if it is counter to Sinhalese ethnic chauvinism.

    i do not entirely agree with Mr Perera. The impeachment might well start the Asian Spring – long overdue in Sri Lanka which is heading for a fascist dictatorship – if not worse- a Totalitarian State.

    Dispite being a doctor (of Medicine) i know enough about history to know that no Dictatorship lasts for ever. You can go from Mussolini to Hitler to Stalin, Idi Amin, Gadaffi , Marcos, Suharto – the lot. they have come and gone. There is no reason to believe that the Rajapaksa junta is the exception. The ony question is how much damage they will do to Sri Lanka before they are gone. It is up to the people of Sri Lanka, not people like me who have left the Democratic Socilaist Republic, as it is inappropriately called, to act. The Tamils can jump up and down as much as they want. They will achieve nothing. It is my people, the Singalese, who will have to act. Act they will, act they must. I have enough faith in them to know that this will happen

    Brian Senewiratne
    Brisbane, Australia

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    What is wrong with pretend racing driver Namal as CJ?

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    Sri Lanka was doomed when the 18th Amendment was approved by the supreme court.
    All that is happening now are consequences of this approval which has created an uncontrollable monster called the Executive Presidency.

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    It is really hard to understand what the writer and most of those comment here trying to say other than simply mutter the same repeated over manthra that this regime must change. For it to change there must be an alternative and it will change when it is there and just wishing so alone will not make it happen.
    The Impeachment saga came in to being after the CJ insulted the president in public by requesting a written invitation to meet the president and then declining it claiming an attempt to interfere in judiciary and death threats by the president via statements through JSC secretary. If you lift your frock and show your back side to your boss you must be prepared to get it smacked.
    Being the chief justice Ms.B should have known better than running away from an inquiry is no way to exonerate one from any charge and claiming she was heckled is childish. Judges and lawyers also heckle litigants but they can not run away. She should have faced the inquiry and complained to the speaker and the country the way she was treated.
    At least she should have made her legal team to continue the proceedings to a finish. Now without anyone defending the wolves got the whole chicken to theselves and finished it in double quick time.

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      NAK,you mention that the CJ raised her skirt and showed her boss Mahinda her bum.If you are right that her boss is Mahinda,then the root cause of the problem is here.How can the judiciary act independntly if the executive is their boss.Some sort of amendment should be brought into the constitution to state that the executive cannot appoint judges.these can be done by the bar association itself.This amendment brought in as the 19th amendment may be the opposite of what basil rajapakshe has been threatening with his 19th amendment talk,but I think the bar association should clamour for such an amendment to be brought in.

      The president has aid ina recent speech that since he appointed the CJ she is a ‘apey miniha’ and should be his puppet.So the answer to this problem in the future is to stop the president appointing any judges as he has a valid point also.I believe if there was no political interference Justice Mark Fernando would have become a CJ instead of wretches like Asoka Silva and Sarath Silva.Enough of these Silva’s from the deep south,we want more Fernando’s from colombo.Hail the portuguese for calling their houseboys Silva and Fernando.

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    I read Ravi’s article with interest and could only say it is very well written and he has been able to reassure that people of his calibre still exist and I take my hat off for his contribution. Well done Ravi.

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