By Malinda Seneviratne –
Malinda Seneviratne
Sri Lanka is a resilient nation. The people of Sri Lanka lived through two bloody insurrections, three decades of war, and all manner of natural disasters capped by a tsunami that left hundreds of thousands homeless and over 40,000 dead. And still we smile.
When we talk of disasters, however, there is one which we routinely overlook: the 1978 Constitution. This is strange, especially since the 1978 Constitution, both in article and lacuna, veritably presides over the playing out of tensions between the executive and judicial branches of the state (which have spilled over and found expression as tensions between the judicial and legislative branches).
The bone of contention is of course the Parliamentary Select Committee (PSC) appointed to investigate allegations against the Chief Justice (CJ). The Supreme Court (SC) is currently in the process of hearing a petition querying the constitutionality of the PSC, a process which rebels against the principle of natural justice (where the CJ essentially is part of a process determining the legality of a course of action initiated against her). Those against this move offer that it is pregnant with selectivity and vengeance. Parliament has summoned the CJ to respond to charges and the SC seeks to summon the Speaker.
As things stand, if the contentions of lawyers petitioning the SC are upheld, we would have to conclude that the CJ is above the law. Since integrity, ethics and respect for institutions and posts such as the ‘Chief Justice’ have left the building a long time ago it is unlikely that any of the parties will back down from positions. In a post-1978 Sri Lanka where the executive, legislative and judicial arms of the state have on numerous occasions encroached on one another’s territory, acted in high handed manner, shown unconscionable parochialism, selectivity and malice, the only word to describe things is ‘unfortunate’. One should qualify thus: the only ‘generous’ word.
All this serves only to turn playing ground into happy hunting ground for forces pursuing narrow political agenda which could very well result in Sri Lanka’s sovereignty being compromised and the people’s vulnerabilities further exacerbated. The issue has been politicized from the beginning by all key players, a state of affairs which naturally provides a lot of ammunition for detractors of the regime and general Sri Lanka haters.
Much of it is beyond control of course. Sections of the Opposition, for example, sorely lacking in the proverbial straws to cling to, would naturally find in the CJ a new pretender (like it flirted with former CJ Sarath N Silva and like it leased out, in Sajith Premadasa’s now famous words, the presidential candidacy to Sarath Fonseka). Those who saw the LTTE as a convenient ally in destabilizing the country (and later the Rajapaksa regime) and who now have lost that little money-spinning toy are likewise straw-clutching. Let there be no doubt whatsoever that this issue will be taken up in Geneva in March 2013, even though there is nothing ‘unprecedented’ or horrific about a CJ being impeached.
The best that the Government can do is to resist temptation to play the politicization game.
The poster that was put up in Colombo this morning, with the legend ‘Lajjai Methiniyani’ (Shameful, Lady!), referring unabashedly to the CJ is an example of unnecessary (and distasteful!) politicization of the issue. There is constitutional provision, one can argue. If there isn’t then there is room for relevant amendment. There is a process that’s underway. The Government ought to let it run its course without frilling process and feeding those elements that would make things darker than they really are.
To get back to resilience, it is pertinent to ask whether the current ‘impasse’, so-called, has the attention of the masses that some may say it deserves. If there is ‘concern’, it seems largely hidden. As prominent lawyer and political commentator Gomin Dayasri pointed out if the CJ is not ‘hero-to-be-followed’ in the way that Sarath Fonseka was (for some at least and for some time at least), it has something to do with how the people view the judiciary and the Army respectively. The latter, people feel, they owe something to. Not the former.
What’s happening in the SC and in Parliament therefore has not prompted anything close to mass objection. Moves against the CJ is not covering anyone in glory, true, but on the other hand the CJ’s moves to turn the Judicial Services Commission into a trade union is not eliciting any cheers either. Lawyers and judges have already desecrated the courts by turning them into places where coconuts are smashed to obtain succor from deities who are supposedly amenable to vengeance extracting contracts. The Parliament is and has been home to a lot of hooliganism. If there’s more ugliness in store it wouldn’t surprise anyone. It probably will spill into Geneva in March but that won’t surprise anyone either.
Regimes thrive, become unpopular, survive unpopularity and give way. It has happened throughout history, and as President Mahinda Rajapaksa is reported to have recently told MPs of his party, no one should harbor the illusion of political immortality. Judges, likewise, have and will have their day. They too will pass.
The people remain. They have suffered much and survived much. They are resilient.
*Malinda Seneviratne is the Chief Editor of ‘The Nation and his articles can be found at www.malindawords.blogspot.com .
chanaka de silva / December 5, 2012
How much darker does it have to become before you open your eyes? And calling everyone who opposes autocracy a regime hater or worse Sri Lanka hater makes you a worse sycophant than ever. If you saw the perils of the 18th Amendment yet cannot see the danger this process to impeach a judge that has fallen from grace with the regime then something is blocking your view. Stop skirting the issue. Government politicization and nonsense about natural justice? Either this is right or it is wrong. Which is it Malinda? Does this hinder democracy and the rule of law or advance it? That is really the ONLY question.
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Don Stanley / December 5, 2012
MS: this this piece of trash you have submitted reeks of bad faith and populist nationalism of the worst kind!
All Lankans should deplore the Kangaroo Court that the Rajapassa regime is operating in the Diya-wenna Parliament, whether or not it is addressed in Geneva! The Kangaroo Court to impeach a CJ is a NATIONAL disgrace for all Lankans brought on by a Legislature full of uneducated morons and knaves – who have caused great disrepute to the national parliament!
The legislative arm is the worst of the three branches of govt. in Lanka today. Executive, legislative and judiciary. On second thoughts, the Executive is pretty putrid too – and there is nothing to choose between the two!
In any case, the Sri Lanka diya-wenna parliament is full of uneducated, scum of the earth politicians who are there to make money not stand for principles. They are there because they play pooja to the corrupt executive.
Politicians in Lanka are the pits and professionals, civil society and ordinary citizens need to step in and rally around the Judiciary and Shiranee Bandaranayake, an unlikely heroine, to spur the LANKA SPRING led by another unlikely hero Sobitha thera to rescue the country from the rot that the Executive and legislature represent..
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China Doll / December 5, 2012
Indeed! What superficial rubbish is this? This MS guy clearly has no ANALYSIS or opinion to present on the subject of the CJ’s impeachment which has been well dissected by top lawyers and academics! Nor does he know the basics of socio-political analysis!
So MS has stooped to populist rhetoric and upside down sooth saying! The fact is, 3 years after Sarath Fonseka’s presidential bid – Lankans are fed up of the Rajapassa regime’s corruption and their crony capitalism and will rally round the CJ for a LARGER CAUSE – TO GET RID OF THE RAJAPASSA DICTATORSHIP, joining with professionals and Trade Unions who are all up in arms.. The LANKA SPRING is on the way, but MS cannot see the writing on the wall, because he is a moron like the rest of 117 in the parliament of crooked and half-educated fools and goons who are operating the Kangaroo Courts!
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dinuk / December 5, 2012
This guy MS likes to state the obvious because he has nothing to say – of course – is his theme song..
“Much of it is beyond control of course.”
“The bone of contention is of course the Parliamentary Select Committee…” etc.
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Anti-Boru / December 6, 2012
Chanaka de Silva:
Are you seeking an honest answer from one who is an Ananias even by the standards of the Rajapassa sycophants? If you are it is a colossal waste of time.
However, you certainly have gone to the heart of this matter when you say, “either this is right or it is wrong.” That’s the kind of morality that the Malinda Seneviratne’ seek to avoid with their never-ending drivel.
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Naga / December 5, 2012
I am in total agreement with Malinda that the current furore over the move to impeach the Chief Justice is unnecessary and highly politicized. Members of Parliament are constitutionally entitled to bring the impeachment motion and proceed with it according to the procedure laid out in the constitution and in the parliamentary standing orders. Those who are opposed to the government have clutched on to this impeachment motion and have become champions of democracy. The impeachment process in Sri Lanka is not arbitarary. The accused Chief Justice is entitled to appear before and defended her case. Chief Justice Shirani Bandaranaike is indeed doing that.
Constitutions and constitutional conventions in many western democracies provide for the removal of justices of the highest courts. Appointments and removal of judges will have to be regulated by relevant provisions in the basic law of a country.
In Britain, for example, from where Sri Lanka inherited parliamentary democracy, the Imperial Act of Parliament 1701 laid down the basic principles relating to the appointment and removal of judges.
According to this British statute, the commission of judges (meaning the mandate to function as judges) can be exercised only during good behaviour. It further laid down the rule that it was lawful to remove the commission of a judge upon the address of both houses of Parliament. The generl view is that Parliament can remove a judge notwithstanding good behaviour.
In the United States, like in Sri Lanka, the federal constitution provides for the impeachment of justices of Supreme Court. This is a two stage process; the first stage is where charges are presented and the House of Representatives determines whether there is sufficient evidence to warrant trial. If so determined, the impeachment motion is put to the House vote which needs only a simple majority. After the passage of the motion at the House of Representatives, which is in fact an indictment of the accused judge based on articles of impeachment, the Senate conducts a trial to determine the accused judge’s guilt or innocence.
The Senate trial is similar to a criminal trial and the Senate makes a determination on the basis of the evidence presented at impeachment. A committee from the House of Representatives (called Managers) take upon the role as the prosecutor. An “Impeachment Trial Committee” of Senators acts as the judges and hears testimonies and evidence against the accused judge. These testimonies and evidence are then presented in the form of a report to the full Senate. The trial phase of the Senate ends there. The Full Senate is required to vote on the report and a two-third majority is needed for the conviction of the accused judge.
In the US impeachment process, there is no role to play for the Supreme Court and the Supreme Court has declined to interfere in the process.
The process to remove a Supreme Court judge in Sri Lanka is no different to the one put in place in the United States. However, in the absence of a second chamber in Sri Lanka, the House of Representatives take upon itself the role of the Senate. In Sri Lanka, instead of the “Impeachment Trial Committee” of the Senate, we have in place the “Select Committee” of the House of Representatives which will act as the trial judge. The Select Committee is required to hear the testimonies and other evidences put forward and will have to make its recommendation on the guilt or otherwise of the accused judge. As in the United States where the full Senate is required to vote by a two-third majority, here in Sri Lanka the full House is required to vote on the recommendations of the Select Committee.
Given this similarity in the process of the impeachment of a Supreme Court judge in the United States and Sri Lanka, how anyone could argue that there should be a trial by a court or any other judicial body to decide on the guilt or innocence of Chief Justice Shirani Bandaranaike.
Rightly speaking the Sri Lankan Supreme Court should not have entertained the petitions presented by various interested groups against its own Chief Justice Shirani Bandaranike. It should have rejected outright without even accepting them for consideration in the open court. How can the Supreme Court headed by the accused Chief Justice make a determination in its own cause, namely, the cause of the head of the Supreme Court itself? Does not the principle of natural justice prevents any authority sitting in judgment of its own?
In Australia, section 72 of the Commonwealth Constitution provides a similar procedure for the removal of justices of the High Court of Australia, which is the apex judicial body in that country.
Section 72 of the Australian Commonwealth Constitution provides:
“The Justices of the High Court and of the courts created by the parliament —
(i) ……;
(ii) Shall not be removed except by the Governor General in Council, on an address from both houses of the parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity;
(iii) ……”
Like in Sri Lanka, there is no interpretation in the Australian constitution as to whose satisfaction the alleged misbehaviour should be proved or as to what standard of prove is required. Similarly there is not interpretation of the meaning of “incapacity”. These problems have not been resolved in Australia perhaps because there had not been any occasion that warranted the removal of an Australian High Court judge in Australia’s constitutional history.
The State Constitution of Australia’s Victoria State contains a constitutional provision for the removal of judges of its Supreme Court. The other Australian States have similar provisions for the removal of superior court judges. In an article on the appointment and removal of judges, the former Australian Chief Justice Anthony Mason has said that “it would seem that parliament can remove a judge for any reason it chooses. There is also the possibility that the Crown could remove, without an address, on the ground that misbehaviour itself terminated a judge’s commission”( Sir Anthony Mason. “Appointment and Removal of Judges”, Education Monograph 1, Judicial Service Commission of New South Wales).
Note the emphasis of Justice Mason that parliament can remove a judge for any reason it chooses. This is also the generally accepted view in relation to the British statute relating to the appointment and removal of judges.
Judges should not be seen to be engaged in trade union action and passing resolutions against the impeachment motion when what in fact is happening is a due process of law, namely, the process to impeach a judge of the highest court in Sri Lanka in accordance with the Constitution of Sri Lanka and the Sri Lankan Parliamentary Standing Orders. A Chief Justice has been accused of improper conduct. She cannot be judged by a court of law that comes under her direct supervision. That is the reason why Sri Lanka has put in place a special impeachment process.
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Dodo / December 5, 2012
Hey Naga, sid Basil Mr. 10 percent pay you to write this long-winded tosh?!
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Medamulana Ralahamy / December 5, 2012
Basil will not acccept 10% anymore and it should be 25% or more now.
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An outsider / December 5, 2012
Well Naga, the problem is whether the law makers do have powers to impeach CJ; they do have. The problem is they do it only after this lady had fallen from grace and they do bring about impeachment only against her. What about all other in the government who also have committed the same offences? When will the law makers use their powers to bring them before the law?
The answers to these questions may enlighten you and MS.
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Raigamrala / December 5, 2012
What action the same Govt has taken against the culprits of the infamous billion Rupee tax scandal that even the COPA (chaired my Wijedasa Rajapakse) examined and found guilty?
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Yakki / December 5, 2012
You must be the biggest BS artist that waked this plannet! What a load of rubbish! Would you like to be judged by Weerawansa the wormin? You do take the Cake the Bun and the Bakery!!!!
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Dave / December 5, 2012
Thanks Naga for this post. I did not know the position of impeachment of judges in other jurisdictions.
this being said, I beg to disagree in certain aspects of your post:
1. Can a non judicial body be able to determine a purely judicial issue? Particularly when analysing what is happening in Sri Lanka, Justice doesnt seem to be done at all. The PSC has not been given any procedural guidelines or even to determine the issue of “Burden of Proof” – is the Judge “Innocent until proven guilty” – the most basic of all legal rights/principles that are upheld, or as in the case of Standing Order 78A, does the Judge have to “DISPROVE” the purported allegations?
I believe this is the focal point and the point that needs to be addressed. I dont think any right thinking person would say the a Judge cannot be impeached. Its the manner in which it is done that is pertinent.
2. In consideration of such a dire situation, where a Judge is blatantly deprived of his/her most basic right of the presumption of innocence, you cant held but expect Court to intervene so as ensure that the basic tenements of legal jurisprudence is upheld. Therefore, considering all this, the Petitions in the Supreme Court cannot be criticised.
3. I also think it is wrong to take the position that such a matter cannot be decided by Court as it related to a Judge. If that argument is to hold water, that would mean that a sitting Judge would not be able to seek relief from a Court of Law until that Judge is no longer in office. Say for eg. a Judge’s property is encroached upon by some squatters – if YOur argument is correct, that would mean that the Judge cannot go to Court against such Squatters as the other judges cannot hear his case. This would bring about an absurd situation. The judiciary is expected and required to give a reasoned decision that would and can be publicly analysed. In such an event it is absurd to shut out Courts all together.
4. The proceedings in the PSC are held in camera and are not open to the Public. Regardless of whether this is so in other Jurisdictions, it cannot be accepted. The impeachment of a Judge is very much a Public affair. It greatly affects the People – the only Sovereign component. This MUST be looked into.
All in all, this process is not right. I really dont care about who is being impeached. She had done neither good or bad to me. What I care about is the Office. The ONLY independent Organ of the state.
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Dr.Rajasingham Narendran / December 5, 2012
Naga,
Your are right about the constitutional provisions and standing orders to impeach a judge Sri Lanka . Similar recourse are also available in many mature democracies as you have pointed out. What makes the unfolding impeachment process in Sri Lanka stink are the nature of the accusations and the circumstances surrounding it.
The legitimacy of the process as laid down and precedence may justify it in strictly legal terms. However, the process has been stripped of its ethical and moral moorings by the circumstances that have triggered the process. This will undermine the quality of democracy and governance further in Sri Lanka . The judiciary is the first institution to assert its constitutional role in the post-era, despite its serious failures before. This assertion should be encouraged as the first step in bring about a balance of power between the executive, legislature and the judiciary.
Dr.Rajasingham Narendran
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M Y FOOTE / December 5, 2012
Naga,
d
My foot! Malle pol. Were you drunk or something. Of course CJs may be impeached. But for what reason, by whom and is there a due process, does the process pass the basic test of fairness, is the process universal and does it apply to all?
Well I don’t think you want to consider the above because most of you are so virulently racist and rush to defend this government not realizing that you will end up with egg in your face
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Kautilya / December 5, 2012
Malinda talk bullshit through his freely gifted Laptop.CT is wasting it valuable space for this guy and Thadi Priyantha.
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John Bunyan / December 5, 2012
Kautilya
Now what makes you think Malinda is so desperate for a laptop , Ha ??? You obviously know nothing about him. Just do a bit of research on the web before jumping in to conclusions
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Safa / December 5, 2012
The question is not whether the CJ is above the law but whether parliment can interpret the contitution and if the PSC is a tribunal duly constituted in terms of the constitution. The appointement of 07 against 04 is a serious flaw suggesting that the PSC is preloaded against any judgement in favour of the CJ.
The lack of adherence to the principles of Natural Justice have rendered the PSC to the level of a rogue tribunal that makes its own rules and procedures as the trial progresses. In a matter as serious as the impeachment of the CJ of the Supreme Court there cannot be loose ends and abitrary ad hoc measures.
It is usless comparing with other countries like US who have two houses and advanced laws and political systems where even the President is not above the law.
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Yakki / December 5, 2012
I honestly did not realize that There really are Sri Lankans who are walking around more brain dead than Duminda Silva. They do not understand what you are saying. Naga Leela and Malinda
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Appuwa / December 5, 2012
People of country are divided today as never had been in the history- poor masses that are uneducated and educated masses who want just the justice.
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Naga / December 6, 2012
I am not saying that Chief Justice Shirani Bandaranaike is guilty or those Parliamentarians who presented the impeachment motion are wrong.
What I hate is the politicization of the whole issue. The MPs are entitled to bring the impeachment motion. They as representatives of the people with whom sovereignity lies are making some serious allegations against the Chief Justice. Let Chief Justice Shirani Bandaranaike clear her name by presenting convincing evidence. She is being assisted by the best lawyers of Sri Lanka. Let us allow the process to run its own course and wait to see what happens. In case if she is found guilty by the Parliamentary Select Committee and removed as Chief Justice, and if the people feel it was an injustice they will turn against the government of Mahinda Rajapakse.
All this debate and support for the Chief Justice show that democracy is not dead in Sri Lanka. Mahinda Rajapakse or anyone else will not dare to turn Sri Lanka into a dictatorship. The Sri Lankans are a more matured people. All Sri Lankans, except the Tamil Diaspora, approved the destruction of LTTE and its leader Prabaharan. There was not much angst when JVP rebellion was put down and JVP leader Rohana Wijeweera was killed.
There are excesses committed and not everything is right in Sri Lanka now, but Sri Lankans will not put up with dictatorship of any kind. Sri Lankans are more matured than even the Indians.
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Anti-Boru / December 8, 2012
naga:
Is there a contest going here that we are not aware of? One that seeks to establish who is the bigger pandankaraya of the Rajapaksas, you or Malinda?
Unfortunately for you and MS, most people who read CT have neither the time nor the inclination to vote for either of you. In any event, it must already pay handsomely to perform this kind of vaasa-kutti task, one as Editor in Chief of a Rajapaksa-owned paper and you, doing God only knows what!
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