By Chandra Kumarage –
Some Members of Parliament of the United Peoples Freedom Alliance (UPFA) have submitted an Impeachment Motion against the Chief Justice (CJ) to the Speaker of Parliament and the Speaker has decided to appoint a Select Committee to inquire into and report to Parliament on the charges contained in the Impeachment Motion. By evaluating the list of charges contained in the Impeachment Motion, the second and third charges are criminal offences triable by a competent, independent and impartial court, as provided for in Article 13(3) of the Constitution which stipulates that any person charged with an offence shall be entitled to be heard, in person or by an attorney at law, at a fair trial by a competent court. Moreover Article 13 (5) mandates that every person shall be presumed innocent until he is proved guilty and Code of Criminal procedure Act No. 15 of 1979 stipulates that all criminal trials should be conducted publicly. The State media has already pronounced the respondent CJ guilty of all charges in the impeachment and the hallowed principles of the presumption of innocence guaranteed in the Constitution of Sri Lanka and the principles of Natural Justice have been put to the back burner.
It is submitted that the charge number two in the motion is very vague non sustainable in any tribunal conducting a fair trial.
The charges , three, four and five in the impeachment motion are essentially criminal and allegedly have been committed in her personal capacity as an individual and not either abusing or misusing her power as the CJ. Those are ex facie serious criminal charges falling under the Penal Code or other penal provisions of law, the complexity and legality of which could only be comprehended and adjudicated by a competent court comprising trained judges who are capable of handling such cases.
Even charge number one in the Motion , although it appears to be a serious charge, it is not alleged that respondent CJ had abused her powers as the CJ in adjudicating the fundamental rights cases referred to in the said charge. It can be easily inferred that had there been evidence to that effect the framers of the impeachment motion who should presumably have been experienced lawyers would have specifically stated so therein. There is also no evidence of allegation that the property has being purchased below the market value. It is submitted that the fundamental rights cases are heard by a panel of three judges of the Supreme Courts. Section 165(1) Code of Criminal procedure Act No. 15 of 1979 stipulates that a criminal charge shall contain such particulars as to the time and place of the alleged offence as to the person, if any, against whom and as to the thing ,if any, in respect of which it was committed as are reasonably sufficient to give the accuse notice of the matter with which he is charged… and it is submitted that even in an impeachment motion charges have to be framed according to these provisions and the above four charges have been framed so vaguely without giving the essential particulars that should be given as stipulated in that section.
By including these charges in the motion to be adjudicated by lay individuals the majority of whom belong to the complainant party and on whose approval the impeachment was originated, incurably violates the basic principles of criminal and natural justice which state that the accuser must not be the judges of his own case.
It is an essential requisite in the criminal procedure established by law that the information shall be well founded to enable a prosecutor to prefer charges against a suspect the ascertainment of which requires that the statement of the suspect as well as his/her witnesses shall also be recorded. In this instance the charges which are of a criminal nature have been framed against the CJ without taking these mandatory steps. It is also very strange as to how the bank accounts of the CJ were accessed without following the procedure established by law.
It must be remembered that even the International Criminal Court (ICC) which tries war criminals and other offenders on alleged charges of crimes against humanity are afforded a fair trial with all due process guarantees.
It must be reminded that in the first ever motions for impeaching Nevelle Samarakoon CJ on an allegation that he made a speech in a public meeting allegedly disrespectful of the executive in his capacity as the Chief Justice, the Parliamentary Select Committee found him not guilty of the alleged charge as misbehaviour. In the second impeachment motion submitted to Parliament against S.N. Silva CJ was based on very serious acts alleged to have been committed in his capacity as the CJ could not be inquired into in that the President prorogued the Parliament once and dissolved it the next time when the motion was to be taken up to prevent it being inquired into. In an interesting but in a paradoxical move the Bar Association of Sri Lanka (BASL) at that time took the side of the allegedly errant CJ and passed a resolution expressing their faith and confidence in him.
In the circumstances it is the dedicated duty and responsibility of the Bar Association of Sri Lanka (BASL) representing the entire legal fraternity of the country to think professionally as lawyers who represent individuals facing the gravest of charges in the country’s penal laws on whose defence they will never hesitate to plead relief and exceptions under every principle of natural law, statutory law, international standards and judicial precedents etc. in the defence of their clients to apply the same ethical and professional standards towards the highest judicial officer in the country who is facing an unfair and prejudiced inquiry by a panel of members of parliament the majority of whom belong to the political coalition in power and have a vested interest against the respondent CJ, and if found guilty has no right to appeal to a higher forum that is available to a convict by a competent, independent and an impartial court.
It is the view of the writer that the government has submitted this impeachment against the CJ violating the fundamental right to equality enshrined in Article 12 (1) of the Constitution which stipulates that all persons are equal before the law and are entitled to the equal protection of the law.
In these circumstances all members of the legal profession must urge the government in unison to withdraw this impeachment and/or to prefer criminal proceedings against her in a competent, independent and impartial court where she will get a fair trial and a right of appeal if found guilty of the charges.
It is stated that, Charge number five is based on the fact that the husband of the CJ is a suspect in a legal action initiated in the Magistrate’s Court in Colombo in connection to acts of bribery and /or corruption under the Bribery or Corruption Act No. 19 of 1994. It will be pertinent to state with reference to the above charge in the motion that when the respondent CJ was sworn in May 2011 corruption allegations were already being levelled against her husband and the opposition declared her appointment to be unsuitable and this government of President Mahinda Rajapaksa appointed her despite such objections. The Parliament has no moral or legal right to impeach her on Charge number five now.
The Charge number Six in the motion is the appointment of Mr. Manjula Tilakaratne who “is very junior in service” as the Secretary of the Judicial Service Commission. Media reports stated that when she was asked by some senior lawyers who met her as to why she appointed judge Manjula Tilakaratna as the Secretary of the Judicial Service Commission she said that he was the sixth in the order of seniority and that his appointment was perfectly lawful and that the Constitution does not mention the necessity of seniority in making such appointments. She drew the attention of the lawyers that her predecessor Asoke De Silva appointed his own brother Priyantha Silva who was the nineteenth in the line of seniority and was succeeded by Prasanna Silva who was the twenty ninth in the list of seniority and questioned further as to why the principle of seniority was not applied when Judge Chandra Jayatillake who was far down in the list of seniority was appointed to the Court of Appeal sidelining Malini Gunaratne who was number one in the order of seniority and was the one recommended by the CJ. Therefore this charge is also unfounded and does not constitute misbehaviour.
Regarding charge number twelve it was reported in the news papers that the magistrate concerned had denied that she ever made a complaint against the Secretary of the Judicial Service Commission.
Regarding charge number thirteen it is stated in the Establishment Code and the other administrative rules for a government official to obtain the permission of the head of department if he or she needs any additional privileges and facilities and particularly the Judicial Service being a closed service, obtaining police protection has to be done through the Judicial Service Commission and this matter cannot be introduced as a charge in a motion to impeach the CJ who is the Chairman of the Judicial Service commission.
It is submitted that the other charges even if they are true also are so nebulous and fall far below the very high degree of proof necessary to be considered as misbehaviour.
It is pertinent to state here that similar impeachment inquiry of a Supreme Court judge of India is held before a committee of three members, two of whom should be judges of the Supreme Court of India. Moreover once a judge found guilty the impeachment motion must be endorsed by two third members of the Lokh Sabha(House of Representatives) and the Rajya Sabha(Senate).
It is very clear that in the circumstances this impeachment motion has been presented to the Parliament with the sole ulterior motive of removing the CJ for not giving a judgment favourable to the Government in the statutory determination of the Divinaguma Bill. Who can say that the same fate will not befall the other two judges of the Supreme Court who constituted the Supreme Court panel with the CJ in arriving at the statutory determination on the Divineguma Bill unanimously?
This is not going to be the end. The government which is under obligation to the International Monetary Fund (IMF) to implement the Structural Adjustment Policies dictated to them in return for the loans that they lavishly granted to the government have to pass laws like selling water in the guise of water management, and other sustainable natural resources like the Eppawala Phosphate deposit and even to sell the valuable lands to foreign companies at greatly undervalued prices. People in Sri Lanka will not forget that when the People’s Alliance government of Chandrika Kumarathunga made an agreement with the Multinational Corporation, Freeport McMoran to sell the Phosphate deposit in Eppawala which would have deprived for generations of Sri Lankans’ the right to extract the said deposit as fertiliser sustainably for many years to come was prevented by the Supreme Court. This time the government is making all efforts to prevent courts in Sri Lanka giving such people friendly judgments.
It is submitted in conclusion that the principles of judicial independence are entrenched in international instruments including the Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights, (ICCPR), the Basic Principles on the Independence of the Judiciary, Bangalore Principles on the independence of the Judiciary and the Commonwealth (Latimer House) Principles on the Three Branches of the Government, (which specifically lay down that an independent, impartial and honest and competent judiciary is integral to upholding the Rule of Law, engendering public confidence and dispensing justice), all of which Sri Lanka has either approved, endorsed, ratified or acceded to.
* C. Kumarage, Attorney-at-Law is one of the Conveners of the Lawyers for Democracy, Sri Lanka