23 October, 2021

Blog

Impeachment: Yes. Arbitrary Impeachment: No.

By Rohan Samarajiva

Dr. Rohan Samarajiva

I advise governments on infrastructure regulation.  In the interest of effective regulation that is shielded from government interference and manipulation by regulated companies, especially those that are still controlled by government, it is commonplace to establish statutory safeguards to ensure regulatory independence.  In the process, some legislative designers weaken the procedures for ensuring accountability by the regulatory agencies.  For example, it was found in 1999 that it was not possible to hold accountable the seven full time members of the Telecom Regulatory Authority of India.  The law had to be changed.

In the drafting of the Public Utilities Commission of Sri Lanka Act of 2002, it was suggested that provisions for removal of members of the PUCSL not be included.  I argued that provisions for removal were included because independence must be balanced with accountability.  My argument won.  The provisions mirrored those applicable to Justices of the Supreme Court.

I state these facts to support my claim that no one, not the President, not the Speaker of Parliament, not the judges of the superior courts, should be insulated from accountability.  Impeachment is the procedure for holding both the President and the judges of the superior courts accountable.  Impeachment is a procedure that is needed in a law-governed society.

However, it is tragic when an instrument essential for good governance is used in an arbitrary manner for purposes inimical to good governance.

People talk about the effort to impeach the first Chief Justice under the 1978 Constitution, Justice Neville Samarakoon.  But what is more relevant is a discussion of the non-impeachment of former Chief Justice Sarath Nanda Silva.

In multiple articles supported by evidence I have documented the malfeasance of the former Chief Justice.  This is no occasion to reiterate the case against him.  One example will suffice:

As I documented in an article published in the Financial Times of 27th November 2008 (while he was still Chief Justice), a bench headed by the then Chief Justice Silva decided on the 21st of July 2008 (CS/FR 209/2007) a matter that only came up for argument on the 27th of November 2008 before a different bench.  No mistakes; no typos.  Then Chief Justice Silva gave a decision four months prior to the case coming up for hearing.

On two occasions, President Kumaratunge intervened to protect the then Chief Justice from impeachment.  The current President and the ruling coalition that he heads took no action to impeach Sarath Silva even when he was engaging in the most egregious violations of the law, including the abuse of judicial power described above.  The yet not fully disclosed charges against the current Chief Justice pale against Sarath Silva’s abuses of power.

Yet, not only was he allowed to retire gracefully after doing untold damage to the Sri Lankan polity and economy, he is still greeted as a friend by the President.  This proves that the present move to impeach the Chief Justice is arbitrary.  Members of the government coalition who care for Sri Lanka’s future as a law-governed country must cast their votes against it.

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Latest comments

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    It is now revealed that there are mistakes in at least two of the charges made against the CJ. The other charges of haveing accounts in banks may be explained and source of funds proven. The other charges are heresay and will have to be proven by these worthies who have signed the motion. Mean time the President has his own version of being too big for her boots.

    The manner in which this action is being taken stinks of vindictiveness and hatred. It is not becoming of a civilized regime. The saga of Sarath Silva, Asoka de Silva and AG Mohan Peiris are a disgrace to the executive and judiciary of this country where the laws were fixed to suit the executive presidiency.

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      The Rajapakse regime are past masters at twisting the truth, and corroding everything it touches, particularly good governance which is being undone in a deliberate fashion from within, while preserving a facade of elections.. But now even the mask is off and their corrupt, naked, murderous greed and criminal ways are evident to all.
      It is indeed the true that:

      “It is tragic when an instrument essential for good governance is used in an arbitrary manner for purposes inimical to good governance.

      It is the Mahinda Rajapakse and not the CJ who should be impeached for egregious crimes too numerous to mention.
      You have hit the nail on the head

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    ‘Arbitrary’ seems to be the order of the day for the government. Just about anything goes, as long as the powers that be want it that way. Nothing has changed except that it seems to be getting worse…

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    It is fascinating indeed to see this Rajapaksa sycophant (soon to be followed by his son, I suppose) making a pretence of fairness and erudition, both!

    He should be elected a charter member of the “butter-wouldn’t-melt-in-their-mouth” Party, joining the rest of the dead left.

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    @Anti-Boru
    Agree wholeheartedly with you.[Edited out]

    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy
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  • 0
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    You advise Governments by sucking up to those in power. You have also been know to make monumental wrong decisions and go with pretentious losers !

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