By Elmore Perera –
Izzeth Hussain in his article filed “Chief Justice and the struggle for democracy” published in the Island of 28th November 2012 stated that “There does seem to be a broad national consensus that the government has acted hastily and put itself in the wrong. On one point there seems to exist a virtual unanimity: the Government is acting unconstitutionally in arrogating to Parliament judicial functions in regard to the alleged misdeeds of the Chief Justice, whereas under the Constitution Parliament can exercise such functions only in regard to its own immunities, privileges and powers. The question of whether the Standing Orders of Parliament can legitimately negate or modify a Constitutional provision has still to be determined by the Judiciary. For various reasons the Government seems to be in a no-win situation. It would therefore be well advised to stop the impeachment proceedings.”
He went on to say that: “Governments have been notorious for making political appointments, the beneficiaries of which are expected to side with the government. Her husband has reportedly been the beneficiary of privileged treatment by the Government. The Chief Justice is a separate legal person and she cannot be blamed for what her husband does. But it is a fact that we cannot ignore that the nexus in the public mind between political appointments and influence is very powerful. There could therefore (without citing any rhyme or reason) be a case for the Chief Justice to bow out gracefully – after meeting the charges made against her – in the interest of establishing the highest norms for the Judiciary.” (The rationale for this statement continues to baffle my simple mind). “JRJ gave the impression that he and Parliament were supreme over the people. That misconception which still seems to be prevalent must be corrected. The Sovereignty of the people entrenched in our Constitution must be asserted loudly”. “The entrenchment of democracy in this country requires that the arrogance of power, which lurks behind the assertion of Parliamentary supremacy, be tamed. We do have a democracy, though a deeply flawed one, which might be called a quasi-democracy. We can take action towards a stable and fully functioning democracy. Or, we can be our own executioners.”
Mr. Hussain followed this up with an article published in the Island of 17th December, 2012. He reiterated that the “Government seems to be in a no-win situation. It would therefore be well-advised to stop the impeachment proceedings” and stated that “the reasons for holding that the Government is in a no-win situation have become much stronger. The PSC has moved with a stunning celerity (swiftness) to push the proceedings towards what must seem to most unprejudiced observers as the predetermined conclusion of impeachment. So the CJ is impeached either on sufficient or on insufficient grounds. Either way the Government stands damned ….. Sri Lanka could even get kicked out of the Commonwealth. No Government in its right mind will feel complacent if it gets into a position of international isolation, and that is precisely where Sri Lanka is going by compounding the nonsense on the ethnic problem by even more outrageous nonsense on the Chief Justice. Sri Lanka has no international clout, potential or actual, worth speaking about. It will be stupendous folly on the part of our leaders to put Sri Lanka in a position of international isolation. I suggested that the Government stop the impeachment process, and the CJ resign after facing the charges against her. She cannot be blamed for her husband accepting privileged treatment from the Government, but the fact is there that in the public mind there is a powerful nexus between politically privileged treatment and political influence. Her resignation would therefore be seen as being given in the interest of establishing the highest norms for the judiciary, and not as a quid pro quo arrangement. In any case we cannot expect that the Executive, the Legislative and the Judiciary will work together in harmony, and that certainly would be an unsatisfactory situation. The President himself has stated that he will appoint an independent Committee to report on the findings of the PSC. It is mainly through the violation of democratic norms that Sri Lanka could come to be targeted for punitive action. Therefore our priority should be to struggle towards a fully-functioning democracy.”
Having said that Democracies are not usually addicted to the warrior ethos, he concluded by saying that, “after all, under a quasi-democracy with only some of the blessings of modernity, at the age of eighty five, he too was “still having a damn good time, and that only a mutt would want war today, and then said, ‘Let’s opt for democracy.’
I was even more baffled with his considered conclusion that “her resignation would result in establishing the highest norms for the judiciary.” On the contrary, it will certainly be construed as an implicit admission of guilt and set the dangerous precedent that any judge who fails to deliver a judgment that pleases the Executive will have to resign, thereby establishing the lowest possible norms for the Judiciary. I was convinced that Mr. Hussain could not have been serious in making such a preposterous suggestion but, being only 79 years old and not “having a damn good time myself ”, I refrained from questioning his logic.
I was, however, greatly relieved when “Concerned woman” took the words out of my mouth in her response to Mr. Hussain in the Island of 19th December 2012. I must confess that I could, in fact only interpret his suggestion that “the CJ resigns after facing the charges against her” as a ‘sordid quid pro quo arrangement’ and nothing else. However his response to “Concerned woman” published in the Island of 22nd December leaves me dumbfounded in disbelief.
Having twice affirmed that ‘she cannot be blamed for her husband accepting privileged treatment from the Government’ he goes on to reiterate that there is in the public mind a
very powerful nexus between politically privileged treatment and influence and that her resignation in that context, even if the rationale behind it is not declared, will strengthen democracy, the rule of law and the independence of the Judiciary, and further that her resignation could then be seen as an act of self-sacrifice in the interest of establishing the highest norms for the Judiciary. He seeks to justify this preposterous suggestion by citing what he sees as a practical problem that cannot be evaded, viz. that if she continues as CJ the Executive and the Judiciary cannot work together in harmony whereas good democratic governance needs a degree of equilibrium between the Executive, the Legislature and the Judiciary. Drawing attention to the fact that the Executive and Legislature are directly elected by the people while the Judiciary in not, he contends that it seems to be anomalous that the Judiciary should be able to set aside the will of the people expressed through the elected Executive and Legislature. His view appears to be that the elected Executive and Legislature are in fact acting in accordance with the actual will of the people and that the decisions of the Judiciary should be more recommendatory than mandatory. This is tantamount to a repeal of Article 125 of the Constitution which vests in the Supreme Court the sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of the Constitution (including the extent of the Executive, Judicial and Legislative and Powers of the Sovereign People delegated to the President, the Judiciary and the Parliament respectively) and make any such consequential order as the circumstances of the case may require. Then, and only then, will be President and the Speaker be empowered to determine the limits of the Executive and Legislative powers delegated to them by the Sovereign People, in the Constitution. Will that not be tantamount to giving them the “freedom of the wild ass” and a prescription for certain anarchy?