21 September, 2020

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Scheduled Impeachment Debate Is Not Constitutional

By Laksiri Fernando

Dr Laksiri Fernando

With the quashing of the Parliamentary Select Committee (PSC) ‘Report, findings and decisions’ by the Court of Appeal, the highest judicial authority in the country on this matter, the impeachment procedure so far conducted by the ruling Rajapaksa regime has come to a dead end. If they try to bypass or jump over this ruling and conduct the impeachment debate based on the quashed PSC report it would be highly controversial, morally repugnant and contrary to the letter and spirit of the Constitution.

It is not only a ruling by the Court of Appeal. The Supreme Court previously determined that Standing Order78A is not law and contravenes Article 107 (3) and several other provisions in the constitution which governs and should govern any impeachment procedure against a judge in the Supreme Court or the Court of Appeal.

Missing Component

What is terribly missing in the impeachment procedure in Sri Lanka is an ‘independent judicial component’ where any charge against a judge could be investigated before debating an impeachment motion in Parliament. There is a judicial component in the impeachment procedure for the President, but not for the Chief Justice or any other judge.

Therefore, if the ruling Rajapaksa regime stubbornly goes ahead with their scheduled impeachment debate on 10-11 January, it would not be a proper procedure and not even a proper Parliament, but a mock one like their Kangaroo Court of the PSC. Both the moral and the legal legitimacy of such a debate would be at the lowest ebb. Any sensible President who wishes to respect the rule of law and the constitution of the country cannot consider a resolution based on such a debate a valid ‘Address of Parliament’ to remove the Chief Justice.

It is not merely a question of the weak nature of the charges levelled against the Chief Justice on which the President has already expressed his opinion at the meeting of the Institute of Chartered Accountants some weeks ago, but the flawed procedure followed by the PSC now quashed by the Court of Appeal. There was a clear admission by the President that the ‘charges were weak’ and it is the nature of the Sri Lankan culture to ‘hammer a person when the person is at the receiving end’ and his ‘conscience was pricked’ for one or the other reason. Whether those utterances were genuine or not is completely a different matter. In view of the all above there are two options left for the government.

  • First, if the Rajapaksa regime is serious about the alleged ‘misbehaviour’ of the Chief Justice and genuinely believes that there is still a prima facie case against this highest officer in the entire judiciary then what it should do is to take the rulings of the Supreme Court and the Court of Appeal seriously and bring proper legislation to create an independent judicial procedure under Article 107 of the constitution to impeach the Chief Justice by abrogating the now much maligned Standing Order 78A.
  • Second, if the Rajapaksa regime frankly admits, as the President has hinted in his above mentioned speech, that the charges are frivolous and that he may have to appoint ‘another independent committee’ to look into the matter, then in view of the judicial determinations, what they have to do is to honourably withdraw the impeachment proposal in Parliament without complicating the constitutional and political matters in the country. There is no point in appointing another committee to look into the matter.

Flawed Procedure

It is more than ironic and an obvious indictment on the impeachment procedure in Sri Lanka that the highest officer in the judiciary, the Chief Justice, had to plead before the Court of Appeal that she was ‘not given a fair hearing’ by the PSC based on ‘natural justice’ and to point out that the ‘root cause’ behind the whole debacle perhaps is the unconstitutional procedure followed on the basis of the ‘mere standing order’ without proper law and legislation on the matter.

It should be noted that she never questioned before the Court of Appeal the impeachment proposal before Parliament initially signed by 117 members and this means that the right to bring an impeachment proposal in Parliament is not at all a dispute in her view. Those MPs were not respondents in her application. What was at dispute was the procedure followed without a constitutionally sanctioned law governing the procedure ensuring a fair trial for any judge who would be accused now or in the future.

The Deputy Speaker, Chandima Weerakkody, has given an interview to the Daily Mirror (6 January 2013) in which he has interestingly stated that the task of the PSC was to make a report on the impeachment charges but not to find the Chief Justice guilty or innocent! This has contradicted what the PSC Chairman, Anura Priyadarshana Yapa, stated to the media after the conclusion of the PSC proceedings that they investigated five charges and the Chief Justice was proved guilty for three charges. It appears that the regime is now changing the position in view of the court determinations and they are making the law and the constitution of the country a mere mockery in the eyes of the public and the international community by resorting again and again to untenable arguments.

The whole debacle started because of some of the megalomaniacs in the legislature probably on the advice of the executive President, first were not happy with the recent independent decisions of the Supreme Court (i.e. Divineguma Bill) and then thought perhaps they should also exercise judicial powers or should usurp them from the judiciary for the conveniences of their arbitrary rule of the country. A crude form of this argument was repeatedly expressed by MP Wimal Weerawansa claiming that the ‘judiciary is subordinate’ to the legislature and it is only an ‘instrument of the legislature.’ It is the same argument in slightly a sophisticated form that Weerakkody has attempted to advocate.

New Argument

First he rejected any ‘judicial review’ of the impeachment process based on a ruling by the Speaker, Chamal Rajapaksa. He argued that “as per Article 4 (c) (i) the jurisdiction regarding the powers of Parliament is not delegated to the judiciary to exercise. The Parliament directly exercises the jurisdiction regarding the powers of Parliament.” What he conveniently forgot to mention is that the impeachment is not solely a power of Parliament. It is and should be a combined effort of the Parliament, a judicial tribunal and the executive. The task of the Parliament is to properly legislate for its procedure following the democratic norms without relying merely on untenable standing orders.

Then he denied even the very clear constitutional position that it is only the Supreme Court which has the sole authority in interpreting the constitution if there is any dispute. Therefore, his or the Speaker’s interpretation of Article 4 (c) (i) is not the valid interpretation. He said the following quite alarmingly and factually contradicting even the impeachment provisions in the constitution under Article 107.

“In the instance of the power to removal of the judges, the word used is the removal of the judges of the Supreme Court and the Court of Appeal, is a power entrusted on the Parliament by Article 107. Article 107 (3) is very clear that it is the Parliament that should conduct these proceedings by law or by standing orders as per the provisions of the constitution.”

It should be mentioned that the removal of the judges according to Article 107 is not vested in Parliament. It is factually incorrect. It is vested in the President on the basis of an Address by Parliament after the procedure of an impeachment investigation. In his second sentence he has disputed not only the ruling by the Supreme Court but also given his own interpretation in essence usurping the powers of the Supreme Court to the Parliament.

Mere Lunacy  

It may be possible that the mere lunacy of the present ruling regime might want to consider the sessions scheduled for the impeachment motion on 10 and 11 January what they claim as an ‘exercise of the judicial power of Parliament’ in respect of the impeachment motion against the Chief Justice.

If the PSC has not found the Chief Justice guilty on any of the charges according to the Deputy Speaker then who is going to find her guilty or not?

Obviously it would be the Parliament itself. They even might find the Chief Justice guilty of all the 14 charges instead of the three that the PSC has declared to be proved. This is quite possible given the recent most salvos by the President against the Supreme Court saying that the ‘SC has no right to go against the legislature’ at the Swarna Purawara award ceremony yesterday. Going against the legislature is not the point but ruling on constitutional interpretations is the right and the obligation of the Supreme Court under the country’s constitution. If the Supreme Court cannot perform that function without the interference or threats of the executive what is the point in talking about independence of the judiciary as the President has uttered?

It is unfortunate that the President as the appointing and the removing authority of the highest officers of the judiciary has himself got embroiled in the impeachment saga of the Chief Justice expressing his biases and partiality blatantly. This is a conflict of interest at the highest order. He is expressing his pre-judgements even before the impeachment proceedings are over. This merely shows that the impeachment against the Chief Justice is not a matter of ‘misconduct’ but a matter of ‘independence.’

There had been several transgressions of constitutional provisions and constitutional rights of citizens in recent times by the ruling regime. The frivolous and unconstitutional impeachment effort against the Chief Justice is not the only issue. The disregard of the constitutional rulings by the Supreme Court and the Court of Appeal, the denial of the Supreme Court’s power to interpret the constitution and making their own arbitrary interpretations and going ahead with the scheduled debate on the impeachment tomorrow are some of the others.

It is in this context that it might be appropriate for the Leader of the Opposition to ask for a clear clarification from the Speaker on the scope and the intentions of tomorrow’s debate before participating in anything unconstitutional in the eyes of the discerning public and the international community. What is at stake is not only the independence of the judiciary but the whole constitutionality and rule of law of the system of governance in the country. If a joint opposition of all parties fail to safeguard the constitutionalism and rule of law in the country or at least mark a strong opposition to the cause of action that the government is going to unleash it is going to be a quick slippery slope for open authoritarianism and even dictatorial rule. All the checks and balances existing today at least partially will be destroyed totally very soon.

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Latest comments

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    The educated fool is at it again!

    How long have we had this debate? The Courts can’t intervene in a case of judicial impeachment.

    Get this in to your head my dear fellow.

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      You would never convince this fellow, Truth Teller … He is so narrow minded that he would not see any reality at all … He is simply blinded by the hate towards the Rajapases and the government …

      • 0
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        It is the same thing I can tell Bruno Umbato. Why are you so covered to hide behind a fake name?

        Rajapaksa regime is increasingly hated by the right minded people. Its demise is a matter of time. Mark it as my prediction in my own name, not a fake one.

        Dr Laksiri Fernando

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      Ranil Wickramasinghe the moron is still playing palace politics in the parliament of morons rather than abandoning the place. denying its legitimacy since it has ceased to exist SUBSTANTIVELY since the Kangaroo Court was set up, and leading the people’s protest on the streets..
      Ranil the clownish pathetic dictator is afraid of the people and not fit to lead the opposition in or out of the Diya-wenna parliament of thugs, thieves, leftist geriatrics etc.

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      Why does this so-called ‘truth teller’ so angry about the truth? Why is he/she so covered to hide behind a fake name? Impeachment debate is unconstitutional by the decisions of the Supreme Court and the Court of Appeal. Don’t go behind the cheap politicians for constitutional interpretations. Impeachments are subject to judicial review.
      I’ll give you a proper reply if you come up with your real name and credentials.
      Dr Laksiri Fernando

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    Parliment is not a civilised place to debate or do anything. Opposition speakers are hooted down. The Govt whip bellows like a bull in heat. The monkey in the red cap jumps up and down. Koparage Verin makes some senseless utterances to keep people entertained. The Modaya threatens the judiciary etc.

    When a debate cannot be held in a serious manner then having an illicit debate is nothing for these monkeys. They are their just to carry out the bidding of the Raja Paksha. No need for brains or intelligence. If you can raise one hand up its enough, no need for two.

  • 0
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    THE ONLY beneficiary is the UN, one of the conditions UN need to fulfill in order to establish an intentional tribunal to investigate past atrocities is interference and intimidation of the Judiciary. Lack of independent Judiciary and violation of constitution would justify further action. It is very difficult to understand why these politicians are so stupid and arrogant.

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      Andrew”THE ONLY beneficiary is the UN, one of the”
      UN :) – they are exactly like government servants who can get a kick up their backside.
      Money and the luxurious DPL life is better than worrying about some idiots who don’t even belong to your culture isn’t it? When we go to the airport in the US or many western nations we have to be there 3 hours ahead and remove our shoes get frisked etc. while they are shown the red carpet- which is better?

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    Ultimately President himself gets into serious trouble. Uncompromising and illegal stance of the UGC chairmen and the additional secretary for admissions put the leadership into serious trouble, as long as Judiciary is tamed and controlled for their advantage and the Chief Justice is removed to continue with irregular procedures, they do not care what ever the consequences to the political leadership.

    How many intellectuals requested the leadership to remove them. By the time they understand realities it may be too late. No body can change the ultimate fate. If they deserve that, nothing in the world can change their fate.

  • 0
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    Dont waste your time by writing stupid articles like this. Just read the constitution then you will know the truth

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    Look at all the Singhala traitors and big mouthed Pundits who continuously attack Mahinda. It is the Singhalese way. These Singhalese traitors were very quiet when LTTE and JVP were killing the Singhalese. Now they have come out of the woodwork and abuse Mahinda and his government who saved the Country. The UNP were willing to handover one third of SriLanka to the Sun God Prabakaran and also were willing to make him the Chief Minister of the North and East. Why worry about an impeachment of a dodgy Chief Justice? She was appointed by Mahinda but she was found to be of questionable character. So what Mahinda could not tell before hand the CJ was going to be like that? He appointed CJ in good faith and why blame him for that. The Legislature is supreme and appointed judges cannot go above an elected government. If the government has no faith in the CJ then she must go. Who is she after all? The will if the Parliament carries the day and not a dodgy CJ or the Black Coats who are called lawyers and are members if the Opposition. For example the leader of the Black Coats is a UNP Member. I say sack the Appeals Court and the Supreme Court Judges too as they are biased and prejudiced and not fit to be Judges.

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      Not only CJ but also – he appointed and ever has further been supporting Mervin – so what do you have to say about that stupid Akka ?

      Mahinda is the curse that the lanka ever produced. This you will see in the months to come after CJ being removed – damaging the entire justice system.

      You people are also a curse so long you dont even try to grasp the gravity of the problems that the island nation as whole are facing today.

  • 0
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    Hello Samare Malli, I read your comment above regarding Mahinda being a curse. From which mouth are you talking Malli? If not for Mahinda you will be pulling a rickshaw with the Sun God Prabakaran seated in it. You lot are either extremists from the JVP or you suffer from Chronic UNP ism. The CJ is history Malli and instead of talking rubbish you should go and help your wife in the kitchen and also be doing the washing instead of talking crap and cursing our dear leader Mahinda. Just look at Mahinda you have to do merit even to look at the gentle lovely man Mahinda. Can you ever compare Mahinda with any if the opposition goons? Ha ha ha ha I still love you Samare Malli now go and do as I say and help your wife if you are fortunate enough to have one! Love Sudu Akka

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