By Basil Fernando –

Basil Fernando

In May 1993, a UN sponsored election was held in Cambodia to elect a government. The country had faced a civil war after Polpot’s catastrophic revolution. At the time, a large part of the country was under the State of Cambodia, of which Hun Sen was the head. His party was one of the two leading parties that contested the election, the other being led by Prince Ranariddh, the son of the former king, King Sihanouk. A day or two after the election, while the ballots were still being counted, a rumour began to be spread that Hun Sen’s party had lost the election (it was proved true when the results were announced) and that now the loser, Hun Sen, would be publicly executed.

That was how people understood the result of losing an election and in Sri Lanka, at the moment, the attempted impeachment of the Chief Justice is conveying many such surprising meanings.

One perception seems to be that it is more or less like a beheading, and that the beheading will take place at the parliament.

A beheading assumes that the issue of guilt or innocence is no longer relevant. It is only the final ceremony that is left to be carried out.

Perhaps what has given rise to that perception is that an impeachment is assumed to be a political affair.

In political affairs, it is assumed that what matters most is what the leader who can muster most votes really wants or thinks. His supporters have only one function: that is to vote in the manner that they are told to vote.

S.L. Gunarasekara, who was himself a Member of Parliament once, writes this on how MPs vote now:

Vast numbers of Members of Parliament “simply voted ‘for’ or ‘against’ according to the decisions taken by the leadership of his/her party…….The ‘bottom line’ in this regard is the most unpalatable fact that independent thought and the expression of independent opinions by its Members are, to the leadership of any Party, as taboo as pork is to a Muslim or a Jew. The harsh reality about our political system is that ‘thinking’ is the exclusive preserve of the leadership of the Party and that acting in consonance with such ‘thinking’ and the decisions based on its is a mandatory obligation of all its Members and Members of Parliament in particular of any Party.”

Since voting in parliament is assumed to be happening this way, it is natural to conclude that no thinking is expected in the parliament regarding the impeachment. All that would happen is the execution, the beheading.

However, such perception fails to take into consideration the Parliamentary Select Committee (PSC) function, which is in fact to decide on the issue of guilt of innocence.

That raises the issue as to whether a decision of guilt and innocence can be a political decision?

If the answer to that question is yes, then it would follow that, as the members of party are expected to vote according to what their party leader wants, the impeachment would involve no process of judging, and therefore it would indeed be a beheading.

This simply means that someone other than the leader of the party that moving the impeachment motion should be the judge. The PSC cannot do that function for the reasons stated above.

Those who judge on the issue of guilt and innocence have to be impartial and impartiality assumes freedom to make decisions. It follows then that judging on guilt and innocence cannot be a party political act.

This being so, it appears that the view of the ‘impeachment’ of the Chief Justice as a synonym for beheading is correct in the Sri Lankan circumstances.