23 September, 2020

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The Constitution And The President’s Conscience

By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

Is the Constitution or the President’s conscience paramount in deciding the notion of legality in Sri Lanka?

Abandoning the courts and the law books

A person’s conscience is of course, variable. A Presidential conscience cannot certainly be any different. In contrast, the very core of the concept known as the Rule of Law is its fixed application to all, the powerful and the powerless, a Chief Justice and a common criminal. If we are to be a country governed by the conscience of whichever Head of State who is in office at a particular time, then we may as well abandon our courts, our law books and our self respect as a people bound by the law.

These matters spring immediately to mind in the wake of President Mahinda Rajapaksa exerting his considerable thespian talents this week to claim that, despite the government driven impeachment process finding Sri Lanka’s Chief Justice culpable on certain charges, he would act ‘according to his conscience’ and appoint an ‘independent committee’ to further inquire into the findings handed down by a majority of the Parliamentary Select Committee (PSC).

Undeterred and unsurprisingly, his detractors promptly argued that this signified a Presidential double-take and an admission that the PSC process, driven by his own government, was flawed. These gleeful reactions then led to the sorry sight of the President tying himself up in proverbial knots in trying to explain in one breath that he had all confidence in his Select Committee members whilst saying that the proposal of a further inquiry was mere ‘procedure’, whatever that meant.

Legal justice required and not executive mercy

But before we venture to address this rider regarding an ‘independent committee’, certain important questions need to be examined. And we return to our original question as to what is paramount, the Constitution or the President’s conscience? As a wag shouted with pertinent purpose during the 2nd Special General Meeting of the membership of the Bar Association of Sri Lanka convened on Saturday December 15th unprecedentedly within two weeks of the last such Meeting, what needs to be shown is legal justice for the Chief Justice and not mercy from the executive. This is a crucial distinction that needs to be maintained at all costs

First and foremost, has the Chief Justice has been impeached in a manner that is constitutionally proper? To be clear, we are not talking here of the constitutional propriety of Members of Parliament inquiring into the misbehavior or incapacity of a superior court judge over which much hot air has been wasted since the beginning of this fracas. The issue is more basic and far simpler. It goes to the roots of a fair inquiry which underwrites all the rights that the Constitution guarantees us. A person is therefore innocent until proven guilty by an impartial inquiry before a competent body. These are fair trial and natural justice rights which in the context of the Sri Lankan law, have been expanded to span the entire breadth of the criminal, constitutional and administrative law spheres. For decades, the courts have themselves been applying these rights to all categories of persons, even common criminals. In particular, appointments to, and removal from public offices must be open, fair and accountable. As much as public officers can claim these rights, surely judicial officers of the superior courts are similarly entitled when impeachment motions are lodged against them? To argue to the contrary would be an absurdity.

Violation of all rights of due process

So let us examine as to whether the PSC process which found Sri Lanka’s Chief Justice culpable, satisfied these basic requirements. The PSC operated sans due and proper procedure, the majority of its members denied her the right to cross examine adverse witnesses and claimed that oral testimony would not be called, only to promptly go back on their word once the Chief Justice and her lawyers withdrew from the proceedings after being repeatedly insulted. They refused to allow her more time to answer allegations contained in a humongous bundle of documents handed over to her to which she was peremptorily ordered to respond within the next day.

This is quite apart from the vulgar abuse leveled against her by some government members of the PSC as detailed in a letter issued by the Chief Justice through her lawyers, copies of which were passed around at the BASL meeting this Saturday. Unconvincing denials by the Chairman of the PSC in that regard carry no credence. Even with the Chief Justice requesting that the hearings be held in public, this was not allowed. Up to now, the purported findings of the majority members of the PSC have not been furnished either to her or to the opposition minority members of the PSC who also walked out in protest.

Notwithstanding this excruciatingly painful spectacle which is undoubtedly without parallel in the Commonwealth, we had the Deputy Speaker of Parliament protesting that the Chief Justice had been afforded all facilities and had been even offered lunch at the House. To what depths of profound farce have we descended to? Are we expected to weigh the offer of a lunch as against the basic requirements of natural justice in the scales of equity?

Predictably the Chief Justice had no recourse but to issue letters through her lawyers to the general public, describing the humiliation that she had undergone and the indignities that she had been subjected to. It is unfortunate that President Mahinda Rajapaksa, in this week’s meeting with national editors, chose to rebuke the Chief Justice for making public statements under the quite mistaken impression that ‘she is a public servant’ (Daily Mirror, December 14th 2012). Yet the President, being a lawyer himself, should be quite aware that judicial officers are assuredly not public officers. In any event, his lawyers, assuming that they possess the necessary competence which is by no means a given, should surely advise him to that effect.

An unholy mess of the government’s doing

If the Government thought that they could wrap up the inquiry against the Chief Justice clothed in a garb of secrecy, frighten off independent commentary and generally enter into adverse findings without critique, it was sadly mistaken. Indeed, these clumsy attempts have led to far more opposition than it ever bargained for, ranging from the Congress of Religions to the heads of religious bodies and judicial bodies both here and in the Commonwealth.

Moreover, the activism displayed by Sri Lanka’s Provincial Bar Associations has been astounding. The President of the Bar demonstrated deft and highly commendable handling of the record numbers that turned up this Saturday, culminating in the passing of three resolutions including an unequivocal assertion that the Bar would not welcome a new Chief Justice if this unjust impeachment is proceeded with. Anti-impeachment contenders dominated the meeting to the extent that an opposition parliamentarian and signatory to the impeachment motion who tried to parrot the government line, found himself unable to proceed and was forced to retreat in vastly amusing disorder.

This shameful impeachment cannot be reversed through a supposed ‘independent committee’ appointed by the President. Indeed, given the circumstances, it is hard to believe that any person of erudition or integrity will agree to serve on it. The issue can only be resolved through strict adherence to a new inquiry process adhering to constitutional guarantees of fairness that the Chief Justice is entitled to, through amendment of the relevant Standing Orders if needs be.

It is this minimum that should prevail and not reliance on the President’s conscience, an uncertain force as this must undeniably be. Let us acknowledge this essential truth, even at this late juncture.

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Latest comments

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    High time the Presidents brother the Speaker admits that the PSC is not a body suited to the dispensation of justice nor are their adequate procedures or competencies in parliment to host such a process.

    The whole process is flawed from the bogus and unsupported nature of the accusations to the hastily prepared final report. This was a simply useless process and an utter waste of publics time and mnoney. The Speaker has to bear the full responsibility for this fiasco and if he is an honourable man should resign forthwith.

    • 0
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      Kishali, thanks for another excellent piece!
      Now you lawyers must turn your attention on ways and means to turn the tables and impeach Rajapassa and his sybling for lies, contempt of court, bringing harm and disrepute to the Judiciary, the legislature, the Chief Justice and the sovereign people of Sri Lanka by running a Kangaroo Court in the Parliament of dead leftist geriatrics, uneducated thugs, goons and fools..

    • 0
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      Elementary my dear Watson!
      The fact that a Rajapassa syblling was in charge of the PSC nullifies it.

  • 0
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    The Learned and Respected Judge Weeramanthry has laid down in simple
    language how to mete out Justice to an accused . FOLLOW IT .

  • 0
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    I think the wording of one sentence is most unfortunate.

    “To be clear, we are not talking here of the constitutional propriety of Members of Parliament inquiring into the misbehavior or incapacity of a superior court judge OVER WHICH MUCH HOT AIR HAS BEEN WASTED since the beginning of this fracas”.

    The constitutional propriety, or otherwise, of the PSC is an importnat issue, not “hot air”, and its pursuit is quite proper. (I do not have problems with the rest of KPJ’s piece).

    • 0
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      My dear Kumar David, perhaps you must understand better the subtlety of strategy and what works best in a specific political climate rather than preaching from academic or polemic ivory towers!

      From my point of view, I would advise that you should try and analyse a bit better, the various ramifications of the counter arguments that those who are against the impeachment need to come up against. Beware! those who are pushing for this are neither stupid or dense.

      My opinion on this issue is that quarelling over whether MPs have the authority to look into the impeachment raises a whole lot of questions that are difficult to answer, as for example as to why these same objections were not raised whenSarath Silva was sought to be impeached. I have seen this question raised by some in the CT forum itself. Doubtless this must be the most useful weapon used by government lawyers to whack their opposing side. To say that the curent procedure is unconstitutional is different to saying that the procedure is wrong and must be amended. It is interesting to see that Weeramaantry also, in his considered and relevant piece which the CJ has used in her response, has carefully ommitted that aspect and discussed only the aspects of fair trial.

      This is the most strategic way to go with greater possibility of bringing even on the fence people over to the side of those who are against. We are in danger of missing he wood for the trees if we go on arguing that the current impeachment is unconstutional, which seems to have dawned on all – including Kumar David – for the first time despite the fact that three attempted impeachments have preceded this one in parliamentary history under this constitution.

      To my knowledge and as a retired public servant who also passed the bar exams in life as a retiree, I have not seen a single article taking this line in regard to the two attempted impeachments of Sarath Silva for example!

      • 0
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        so what is sauce for the gander (Sarath) is not sauce for the goose (Shirani) to Kumar and others who like to furiously maintain that the law does not provide for MPs to inquire into judges’ conduct in SL?

        I have read it that some people like to say that this is a conflict between one constitutional provision (peoples’ sovereignty) and another constitutional provision which specifically authorises procedure to be laid down re impeachment coupled with Standing Orders putting the matter in the hands of MPs).

        But even as a layman, is it not obvious that a direct constitutional provision coupled with a direct Standing Order takes precedence over an implied argument coming from Art. 4?

  • 0
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    President’s conscience – Does he have one? my foot.

    • 0
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      Realise the power of satire and language, Philip…with that, you can beat even the worst dictator.

  • 0
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    I am shocked that there were four “lawyers” representing the government at the PSC (Yapa, Siripala, Premajantha and Dilan) and they did not know what the “Rule of Law” or “Due Process” are. How did they become lawyers? Are they real lawyers or impersonators “Gaya Yata Perakadortuwas”? If they have any self-respect, they (and the President) should withdraw their registration as Attorneys. When they are no more in the Parliament, no one will bring any briefs for them.

    Th President is advised on legal/ judicial matters by none other than a retired CJ. That’s why we pay him (Tax payers money) for doing that. Didn’t he advise the President how this should be handled or is he such incapable? Although the President tells that he was not aware of this Impeachment Motion by 117 MPs until it was handed over, isn’t that another “cock and Bull” story that people wouldn’t believe. He probably thinks the public are all “Konda Bendapu Cheenas”

    • 0
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      this so called retired Chief Justice who is advising the president, Asoka de Silva is the worst scoundrel of all! What advise from people like these.

  • 0
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    My Lady, you will now realize that no one can anticipate fair justice. Now its proved that, Reasonable prudent man would say that, Even if the Chief Justice of this country was not given the opportunity of due process of the Law, what could be anticipated or ,achieved by the ordinary citizen from Judiciary?

  • 0
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    “Conscience”? What conscience? If he does have one it must be seriously warped.

  • 0
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    What has happened cannot be deleted or changed. It’s important to consider how to prevent such abuse and disregard of natural justice and due process. But we need to proceed with minimal damage and reach a consensus on prevention of such abuse in the futire and disrespect shown to the CJ, and of calling for accountability of what has taken place. People who should know better, as members of our profession who swore before the Cheif Justice and the Supreme Court to always uphold the law and be of conduct above reproach. What is their higher duty? To the Oath or on being selected voted to parliament? It is also important to all professionals especially lawyers, to raise awareness in the public of their rights and ensure their respect for the profession and the justice system. The conduct at the Special General Meeting, to say the least was unbecomming. SANJAY

    • 0
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      How can one be polite against thugs Sanjay? Please explain. I only hope that you will not embark on Gandhian principles. Gandhi was very well for his day and age but Gotabhaya would have just mowed him down.

  • 0
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    The Leader of the Opposition pointed out the danger of expulsion from the Commonwealth of Nations, if this impeachment process is not carried out according to Latimer House Principles. He pointed out that Sri Lanka is a signatory to the relevant document. The best we can expect is an independent panel that meets the Commonwealth guidelines.

  • 0
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    Safa you are sadly mistaken. How can an ex cop the Speaker undestand the suitability of PSC to investigate the Charges against CJ?.

  • 0
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    I BET ALL THESE SO CALLED THUGS, HOOLIGANS, DRUG DEALERS, RAPISTS, MURDERERS, THIEVES, LOOTERS ETC ETC WILL NEVER STAND A CHANCE IF THEY DID THESE ATROCITIES ON THEIR OWN. ESPECIALLY GOTHA BAYA GULLA, I WAS TOLD, IS A GUY WHO USED TO SHIT IN HIS PANTS AT ANANDA VIDYALAYA WHEN HE WAS BULLIED BY HIS JUNIORS. HE THINKS HE IS TOUGH, BUT, ON HIS OWN AND, WITHOUT THE BACKING FROM THE UNIFORMED ASS HOLES, HE WILL RUN SHITTING ALL OVER HIS PANTS.

    THEY ARE ALL A GANG, STARTING FROM THE DEVIL DANCERS FROM RUHUNU, AND THE ONLY WAY TO ERADICATE THESE SOUTHERN TERRORISTS FROM THE SOCIETY IS TO GET TOGETHER LIKE WE DID TO ERADICATE THE NORTHERN TERRORISTS.

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      Danny Boy,
      You mean to say that by your getting together you were able to get rid of the Northern Terrorists?
      The whole world knows that India, with the help of USA and the west
      joined by China, Russia, Pakistan, Iran who helped SL Govt. to defeat the Northern Terrorists.

      India had a grudge with LTTE and the West has respect for India believing it is a the largest democracy!
      Even Gota who fled the island to USA returned when things were favourable.
      So nw who will support you to get rid of the Southern Terrorists?

  • 0
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    Kishali’s professional calling is law, and her sole emphasis and focus remains the law. In an ideal world, her writings would have much merit and utility, but alas, there are several sociological, political and psychological aspects to the occurences in Sri Lanka which form an inextricable nexus that need the attention of other contributors….

  • 0
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    @Lasantha – I find your comment impossible to understand. Is it that lawyers should not comment or analyse what is happening around us? I have seldom heard a more ridiculous suggestion!

    When the country is sees the Law being thrown away, lawyers should be the very people who should speak out as they have the skill and the expertise to speak of the law where ‘other contributors’as you mention do not. My daughter who is a lawyer in Australia, speaks of demystifying the law and I agree with her. We need to see that here.

    The great tragedy of Sri Lanka is the inability of people to speak out honestly, clearly and truthfully. On your own argument, where are the sociologists, political scientists and psychologists who should also be speaking out on these matters?

  • 0
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    As far as I understand there is no dispute over the procedure relating to removal of the Chief Justice as described in Para (2) of Article 107.There is no ambiguity in the provisions in Article 4 either. The problem has arisen due to the failure on the part of Parliament to have appointed a proper tribunal or a committee of inquiry as required by Para (3) of Article 107 in consonance with the letter and the spirit of Article 4. The Parliamentary Select Committee appointed by the Speaker to probe the charges clearly conflict with the provisions of the Article 4 which clearly spells out the instances where the Parliament can directly use the judicial power vested in it by the people.But in an instance where there is a conflict between the Standing Orders and the Constitution,it is common sense that the Constitution should prevail. If there is a lacuna in the provisions in Article 107, it has been rectified in the aborted 2000 Constitution. Its Article 151 (4) (b) (1) reads as follows: ” in the case of Chief Justice, by a committee consisting of three persons each of whom hold or have held office as a judge in the highest court of any commonwealth country.” If there is a flaw or ambiguity in the law, the people expect the authorities to set it right, not to perpetuate it with any ulterior motive.

  • 0
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    Saman, I like your comment and cannot agree more that the procedure ought to be rectified. However, you are wrong when you say ‘The problem has arisen due to the failure on the part of Parliament to have appointed a proper tribunal or a committee of inquiry as required by Para (3) of Article 107 in consonance with the letter and the spirit of Article 4.’

    Please read that provision – available on http://www.lawnet.lk. Para (3) of Art. 107 does not require a committee of inquiry or ‘proper tribunal’ to be set up. All it does is say that Parliament shall by ‘law’ or by ‘Standing Order’ provide for the procedure. So this is what Parliament did all those years ago – provided the procedure by Standing Orders in direct order to to that provision even though this was not a desrable procedure.

    I agree that this procedure is wrong. But what baffles me is how and why all our learned intellectuals, lawyers and law lecturers had to wait all this time to raise Cain on the matter of parliamentarians deciding the future of judges? Did we not have the individual or collective knowledge to realise this earlier? The draft constitution of 2000 did raise this and suggested an alternative but it died a natural death with that. Where were our voices during that time?

    But yes, of course. At least now we should set it right. The problem is that we have a MARA dictator and his family who do not care a jot for constitutional provisions!

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