By Jude Fernando –

“Bonaparte throws the whole bourgeois economy into confusion, violates everything that seemed inviolable to the Revolution of 1848, makes some tolerant of revolution and makes others lust for it, and produces anarchy in the name of order, while at the same time stripping the entire state machinery of its halo, profaning it and making it at once loathsome and ridiculous.”   (Karl Marx in Eighteenth Brumaire of Napoleon Bonaparte, 1852)

We need an independent committee or a panel of judges not to evaluate the report of the Parliamentary Select Committee report but to examine whether its conduct is consistent with the law and the accepted national and international norms about impeaching Judges. The impeachment proceedings so far should be declared a mistrial (i.e. a trial rendered invalid through improper and prejudicial errors in the proceedings leading to a leading to the impossibility of an impartial resolution) because in any civilized society a person cannot be tried twice for the exact same offence. It’s called double jeopardy.

Is it a responsible use of immunity by the President not to take responsibility for the conduct of the PSC? Perhaps, the core problem here is executive immunity.

Typical reasons for a mistrial are the lack of jurisdiction a court may have over the case, improper admittance of evidence or testimonies, misconduct of any individual that prevents due process, a hung jury, or disqualification of a juror, and when legal counsels of the litigants find that unfair statements or comments have been made or crucial evidence or testimonies are not admitted or distorted.  It prevents an innocent person from being tried and tried again and again for the same crime until finally being found guilty by a jury or committee that is unprofessional and corrupt.

What the government has done so far is to impeach the constitution, justice system and parliamentary privilege by ignoring the requests by the Supreme Court to postpone the impeachment proceedings until it hears the petititions against it and violating the conventions and procedure of impeachment of judges in any civilized society.   To make matters worse the government appointed an all men committee some of whom insulted the CJ in most sexist language.   Rather than taking responsibility for its misconduct, the government now is trying to find ways out of it, and there is no reason to believe that it changes its original motives that lead to the impeachment in the first place.  Judiciary’s failure to declare the PSC a mistrial is an insult to the country’s justice system, will reinforce the very forces that led to the mistrial and set dangerous precedence for the future.

President’s statement in the Daily Mirror makes it clear that he has his agenda only to satisfy himself: “I have only to answer my conscience because at the end of the day, I have to be satisfied with the outcome of this report; I have to be satisfied that I have done by job properly. The instructions to appoint a further committee to look into this are my instructions. They aren’t found in a paper or book nor are there a law to it but I will do it in order to satisfy myself.” (12/12).  Is it a responsible use of immunity by the President not to take responsibility for the conduct of the PSC? Perhaps, the core problem here is executive immunity. I think government was irked by CJ’s decision on Divinaguma Bill because the hidden aim of the Bill was to overcome the limitations imposed by the 13^th Amendment on the concentration of power in the hands of the few who currently control the central government.

In other occasions, President’s attempt to maintain his innocence of the impeachment has several implications.   This First, President’s claim for innocence of the impeachment runs counter to numerous media reports about the Presidents active involvement in expediting the final report of the impeachment proceedings.  Second, he absolutely has no control over what the 117 ministers who signed the motion, hence he has lost control over the Party.  Thirdly, he has no proper legal counsel to handle delicate issues such as the impeachment.  If these implications are true then one cannot expect that the President has the capability or legitimacy to appoint a credible committee re-try the CJ.  It is not fair to let CJ go through another trial to compensate for the misadventures of the President and his legal counselors.

The impeachment of CJ is not simply about her misconduct, but government attempts to discipline the judiciary to function according to the government agenda.  It needs a judiciary that is obedient and predictable and at the same time to provide legal legitimacy for its agendas.  It also raises questions about responsible use of immunity by the executive President.  Giving into government’s attempts to re-start the impeachment is to miss an opportunity to place checks and balances on a country that is rapidly descending into lawlessness, anarchy, disorder, and international isolation.

In fact the appointment of another committee and Panel of judges proposed by is so called Leftist allies may very well be a tack it to distract the protestors and the international pressure. Because this government has learned the benefits of procrastination of its responsibility particularly when it comes to issues that draw international pressure.

CJ should be honored because she willingly participated in the impeachment hearings and had the courage to leave the hearing when the committee lacked civility and professionalism.  And her verdicts in cases against the government demonstrate her professional conduct was not influenced by the government appointing her husband as the Chairman of the National Savings Bank and the fact that she was appointed by the President.

Perhaps, the misadventure of CJ’s impeachment could initiate the long waited spring in Sri Lanka, provided the concerned citizens moved out of the Lipton Circus to the villages and built a mass movement against anti-democratic forces.