By Asian Human Rights Commission –
The Chief Justice of Sri Lanka, Dr. Shirani Bandaranayake, is facing impeachment in that country. Those who know the state of affairs in Sri Lanka, might have no doubt, that the impeachment is politically motivated. To justify the process, the government has levelled allegations of corruption against Justice Bandaranayake. The Constitution of Sri Lanka (Article 107) and the Parliamentary Standing Orders, though allows such a process, in law and theory, the entire process is devoid of legal and jurisprudential merits, a question that the Supreme Court of Sri Lanka is now considering, by way of receiving a reference petition to consider the constitutional vires of Article 107 of the 1978 Constitution.
Chief Justice Bandaranayake
Sri Lanka is not a country far and distant from Indian shores. Neither are the people, culture and politics of Sri Lanka alien to India. Though some people in both countries would argue for and against India’s involvement in Sri Lankan affairs, the impeachment of the Chief Justice for purely political reasons is not something that India could pretend to ignore. Sri Lankans and Indians and all those who believe in democracy have the moral duty to express their opinion about the impeachment process. New Delhi has a little more difficult job, perhaps in expressing its concern about the impeachment process to Colombo, a responsibility nonetheless. The notion of state sovereignty is not a moral or legal impediment to this.
That no government in India would ever dare to initiate impeachment proceedings against a judge in the country, without complying the constitutional requirements that guarantee universally accepted norms of justice, fair trial and due process strikes a stark contrast to the process adopted in Sri Lanka. That none of these guarantees are offered to a judge, when a judge is judged in Sri Lanka, is reason persuasive enough for any government to express its concern to Colombo about the impeachment.
Whenever in India, the state legislatures or the central parliament has tried using parliamentary privilege for unjustifiable reasons against the judiciary, the judiciary has corrected the legislative houses. Additionally, the basic structure doctrine, postulated in Kesavananda Bharati (petitioner) against State of Kerala and others (respondents) [All India Reporter 1973 Supreme Court p. 1461], triumphs the clarion call of the power of judicial review and the limits drawn upon the parliament, even in its legislative authority. Justice J. R. Mudholkar who first postulated the concept in 1965 proposing a limit to legislative power of the parliament, or Justice Hans Raj Khanna and his brother judges who together in 1973 put the concept into practice were not attempted to be impeached by the then all-powerful Prime Minister of India, Mrs. Indira Gandhi, though the fallout from the judgment resulted in the promotion of junior judges. That too was not left without critique, immortalised in the words of former Chief Justice Mohammad Hidayatullah as an “attempt of not creating ‘forward looking judges’ but ‘judges looking forward’ to the office of Chief Justice.”
At the core of the issue is the concept of independence and separation of powers in governance. Power of judicial review, is one of the building blocks required by all states to prevent the deterioration of democracy into dictatorship. In that, the impeachment of a judge in Sri Lanka is the impeachment of the entire justice process in that country. The asphyxiation of what is left of judicial independence in Sri Lanka will have far-reaching and damaging effects upon its neighbours, India included.
During Ms. Aung San Suu Kyi‘s visit to India, she said that India’s active appreciation of the military junta in Burma saddened her. Ms. Suu Kyi said that she was not surprised by India’s accommodation of Burma’s military dictators, who have brutally denied and continues to do so, the people of Burma, their freedom. Pretending ignorance of the impeachment proceedings in Sri Lanka will only cement this image.
Democracy and institutions of democracy are not internal affairs of a country, since no country can claim absolute ownership of democratic norms and values. Neither is this concept western, as often wrongly portrayed by individuals like Mr. Lee Kuan Yew, who has self-assumed the right of all Singaporeans to decide what is best for them, on the basis of a fake Asian value doctrine, or like Mr. Hun Sen of Cambodia who has decided on behalf of the Cambodians to continue in power until he is 80 years old.
The concepts of democracy and freedom, the institutions necessary to sustain these concepts and the character of these institutions and their relationship between each other are the results of centuries of human struggle to free the public from unwarranted state control over fundamental freedoms. Crystallised into legal theory, these concepts translates into legal restrictions against arrest and detention; as concepts of bail; presumption of innocence; right against torture and everything that is understood as fair trial. In constitutional theory this means among others, the separation of powers between the organs of the state and the respect state institutions maintain about each other while discharging constitutional mandates.
The quintessence of democracy is freedom and administration by consultation, embodied in the concept’s ability to check absolute control. Judicial independence is elementary to this premise and the judiciary’s ability to review acts of the executive, legislature and the judiciary itself, openly and freely is a prerequisite to realising democracy. When these spaces of freedom and consultation are shrunk, no matter where it happens in the world, it is the moral and legal responsibility of everyone who values these concepts to express concern and be worried.
When it happens in the neighbourhood, it brings matters close to home.
Related posts;
India Says Impeaching Chief justice Is an Internal Matter Of Sri Lanka
Wuliangguobinjiu / November 22, 2012
Present day Graft India- Let sleeping dogs lie low.
Up until 9/11 India was categorised as an unfair trading partner. Bowing to the Bush overtures India provided all logistical information against its long standing business partners irrespective of Iraq being a terrorist state. However it has to date not voted along the west on multinational issues except the last UNHRC vote on Sri Lankas issues for fear of losing its majority in parliament because the South East Indians were determined to pull out if India did otherwise.
India has a very poor track record on human rights and in the 2009 elections 100’s of its contested politicians from both the opposition and governing and now even the elected are convicted criminals. Even today a politician in the UP convicted of murder and jailed still carries out his duties outside the jail in pomp.
Today it is known as nothing less than Graft India by its own people. How does it accommodate the world? Like Sri Lanka it is a parasite thriving on anti- terrorist vote throughout Asia and the Middle East. Aren’t they spawning terrorist from the innocent by using undue and vicious tactics?
The western press along with the ruling Congress falsely accused N. Modi as an Hindu fundamentalist who was involved in the riots while he never even behaved like J.R. Jayewardene during Black July of 83 in Sri Lanka. What does the western world expect Hindus of India to do when state sponsored Islamist from Pakistan and the Islamic world bombed and attack India and its people? Shouldn’t the Hindus repel such attacks or give in like the naked fakir? 12 attacks have taken place so far after 9/11 and the ruling congress has done nothing about it so far but is more interested in Graft activities all over Asia.
After 10 years the western world has seen how Narendra Modi of Gujarat providing transparency and accountability and thereby making his state have a growth rate of 16% in very difficult times and especially at a time when the Centre and canny UP/Bihar opposition are still after his throat. Gujarat is a very welcoming state for centenaries and it is also known to have taken the message of Islam all the way to Indonesia.
Come 2014 if Narendra Modi becomes the PM all Asians can be relieved and look forward towards uncorrupted prosperity with a transperent and accountable nation.
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justice / November 22, 2012
President Mahinda Rajapakse appears to be a “Burmese Junta, plus Lee Kuwan Yew, plus Hun Sen”, all rolled into one, thanks to the 18th Amendment approved by the Supreme Court as an “Urgent Bill” and determined within 24 hours!
In other countries, matters regarding change of constitution are debated for weeks & months by media,intellectuals, constitutional experts & ‘special commissions’, before consideration by parliament.
Do we have the “fastest” Supreme Court in the world?
Is not the proposed ‘impeachment’ a direct result?
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Pinwathie / November 22, 2012
I personally believe not only President himself, but all other lawmakers should work on that. We have not only UNPers, JVP and several others sitting on the opposition. Many of them have been remained silent as – injected mice for the experiments – so whom to put the blame on ? why not they debate on the parlia,ment should be raised by the opposition.
Those who got elected to the lanken parliament should be far from understanding the politics that the folks expect from them.
If folks would not learn a lession this time, at least next time they need to use their uni franchise most thoughtfully.. it is on the hand of the folks.. this should repeatedly be fed to them. So long people^s mind sets would remain as it is – nothing will change in the system.
We may perhaps need to go on to the streets as seen in Tunesia, Egypt and other similar countries lately.
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Wuliangguobinjiu / November 22, 2012
Take care what you wish for1 You may end up like Baharain. ;)
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Wuliangguobinjiu / November 22, 2012
Neither Rajaporkistan nor the author of the article is fit to wipe the feet of a qualified professional like Lee Kwan Yew. Lee believed in equal opportunity and tradition with advancement as the goal so in the constitution there is equality of religion language etc. and yet the Northern Ceylonese were a very small component of the population- read him he has several books and is known very well as one of the greats in urban planning. Thanks to him today the west sees Singaporeans as different thinkers than the rest of Asia. Does the author want Lee to follow Bush style freedom? He the author will not tell you that. Lee took over Singapore on negotiation with Dr Mahathir his friend when there was racial war in Malaysia so he had many westerners trying to tell him what’s best because he was Chinese and the proximity of CPC but the west received its potty from the Chinese as much as the press.
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Kaputa / November 22, 2012
Who is providing funding for this so called Asian Human Rights group? If you are kind enough to disclose your sources of funding I will tell you exactly the agenda that you are supporting.
[Edited out]
I suspect this organization is funded by some foreign countries bend on destabilizing Asia. I am all for human rights, but these human rights merchants are making lots of money on the back of other people’s miseries. They never defend the victims if the perpetrators are those who provide funds to these organizations. What is status of human rights of the people of schedule cast in India? They are the of the most oppressed humans on earth. Nowhere else you find this brutal exploitation except in India. Have you seen any comments about the rights of those people by this organization?. No, noway because India is a friend in South Asia today standing against China. India is model for others to follow, according to these human rights merchants. Does China have a system of oppressive cast system? What about Saudi Arabia, where women cannot go to a shop without a man accompanying them.
@Mr Kaputa,Please provide the evidence – CT
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kaputa / November 22, 2012
Basil said:
“I mourn for Prabarkaran also
Following the killing of the entire Liberation Tigers of Tamil Eelam (LTTE) leadership there is a strongly expressed feeling among Sri Lankans, within the country or outside, that their deaths — and particularly that of the leader, Prabakaran — should not be a matter for mourning. I beg to differ!”
This is a quote from Basil, who is still mourning for a mass murderer, that ordered to killed 32 Buddhist monks, worshipers at Temples and Mosques, newborn children by smashing on the walls. What you call this twisted mind of Basil, who is mourning for a mass killer.
You will find the rest of his ideas in this article: “Sri Lankan politics, from primary school to kindergarten.”
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Leon / November 23, 2012
India has already said that the impeachment of the CJ is an internal matter.India lacks the calibre of people like Indira Gandhi and presently
run by criminals and bribe takers.All MR has to say Ch….,without completing the word, the morons start panicking.
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Wuliangguobinjiu / November 24, 2012
Sorry….. I couldn’t hear you over all the fc*uk I don’t give.
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Wuliangguobinjiu / November 24, 2012
Sorry….. I couldn’t hear you over all the f.c…u.k I don’t give.
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K.D.Amarasiri / November 26, 2012
Shiranees husband has charges of corruption to be heard in the courts
So she has no right to hold the post of CJ. She has also recently taken over a case of Shelincko from another judge and has accepted that she had dealings with the same company and bought an apartment from Ceylinco.
She has no moral right to remain in the post.
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