18 September, 2020

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The SC’s Decisive Intervention Against The Impeachment

By Basil Fernando –

Basil Fernando

The Supreme Court of Sri Lanka, marking perhaps the greatest day of its 200 year history, today declared in a historic opinion that the Standing Order of the parliament, bearing no. 78/A, is null and void and has no effect in law. By this opinion, the Supreme Court of Sri Lanka has nullified the impeachment process against the Chief Justice Shirani Bandaranayake, which it was pursuing with extraordinary haste and unprincipled vigor.

Public opinion in Sri Lanka and the international community, including the UN Rapporteur for the Independence of Judges and Lawyers, had said in no uncertain terms to the government that the course that it was pursuing in relation to this impeachment was against universally accepted norms and standards relating to proceedings for the removal of judges of the superior courts in any democracy. The Supreme Court today confirmed this view and put the matter to rest.

The course open to the government is either to abandon the impeachment move altogether or to pass a law incorporating the international norms relating to the removal of judges, and thereafter place the inquiry before a competent and impartial tribunal. A proposed law by an opposition member and the president of the Bar Association, Mr. Wijedasa Rajapaksha, is already before the parliament. Given the majority that the government enjoys in parliament, this bill can be passed as a law in the shortest possible time.

The government’s claim, that since 117 members of parliament have placed a motion calling for the impeachment of the Chief Justice and that the Parliamentary Select Committee has already been appointed, and that the government members of that Select Committee have already made their report, is in no way legally justifiable now as the Supreme Court has declared that the Standing Orders under which such actions were done were null and void.

The Asian Human Rights Commission calls on the Sri Lankan government to respect the interpretation of law given by the Supreme Court, which, under the constitution, has the last word on the interpretation of law. We also call upon the people to now come forward ensure that their Supreme Court is respected by their government. It is also the duty of the international community to intervene so as to avoid any unnecessary confrontation at this moment.

If the government, instead of respecting the Supreme Court, enters into a collision course with it, the responsibility for that decision will be entirely on the government itself. There will be nothing to justify such an action. People have a right to resist any illegal move that the government may take and, whatever the consequences of such a situation, they will be squarely on the shoulders of the government itself.

The government now has an opportunity to correct many of the violations relating to the constitution that have been taking place for a long period of time. Thus, the government has an opportunity to act in a manner that ensures respect for the rule of law in the country. If the rule of law is further undermined, the government is doing so at its own peril.

We take this opportunity to convey our respect to the Supreme Court which has at last woken up to its responsibilities to be the guardian of the dignity and the rights of the citizens of Sri Lanka. This responsibility alone is the justification for its existence.

In the past there were at least four occasions on which the Supreme Court could have intervened to prevent fundamental abrogation: when the bill relating to the new constitution was placed before it in 1972; or in 1978, relating to the UNP constitution; or in 1984, when the then President brought the first impeachment motion against the then Chief Justice, it could have declared that the Standing Order number 78/A was illegal; or in 2010 when the 18th Amendment was. If they had intervened then, much of the historical tragedies thatSri Lanka has suffered during this period could have been avoided.

We reiterate that position which the Asian Human Rights Commission has repeatedly declared, that the extreme violence that took place in Sri Lanka in the recent period was a direct result of the constitutional aberrations that were done to deviate the country’s path from a democracy towards dictatorship. Now, there are people who declare victories over “a war”. However, the reality is that war could have been avoided and that bitter period with a large number of lives lost would not have happened if not for the failure of the courts to defend constitutionalism against the attacks that the executive was making.

The present decision thus paved the way for dealing with a number of pressing constitutional issues in the country. As Justice Wigneswaran stated last month, there is a situation of political instability created by the 1978 Constitution, and particularly by the 18th Amendment to that constitution.

The country has been pushed down a perilous course for over 30 years now and the impeachment motion, if it had succeeded in the manner in which it was pursued by the government, would have pushed us further down the cliff of lawlessness.

The three judges who made the present judgment have acted not in of the passion of the moment but with a chill of reasoning as the judges of the highest court are expected to do. This should be a sobering moment for the legal community in particular, to rally together purely on the basis of democratic duties to safeguard the system. The people of Sri Lanka, we fervently hope, will intervene to define the country’s future course.

Related posts;

Breaking News: Standing Order Is Not Law – Court of Appeal

Impeachment: Full Text Of The Supreme Court Determination Today

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Latest comments

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    The other failures of the Supreme Court preceding those you listed were permitting the D.S. Senanayke government to get away with its citizenship act, the S. W.R.D. Government to get away with its Sinhala Only act and the Sirimavo government to get away with its standardisation scheme. Three acts that set in motion that have brought this country to where it is. These acts were unethical and wrong by any measure of justice. The Supreme Court also sided with the government in the Kodeeswaran case. this decision was reversed on an appeal to the Privy Council. However, the Sirimavo government responded by delegitimising appeals to the Privy Councils. I am sure there are other such instances of subversion of justice by the Supreme Court that can be cited by others.

    The point I am making is that the rot started setting in a long time ago, at the very infancy of our independence. It is time we stopped this rot and concentrated on the monumental restorative task ahead.

    Dr. Rajasingham Narendran

    • 0
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      The British united the country under one Flag, which was previously ruled by many kings….and the Kandyan Kingdom was ruled by Sri Wickrema Rajasimghe…who is from India.(check google)

      When British gave Independence….the ever unqualified politicians who did not know the basics of ADMINISTRATION AND GOOD GOVERNANCE took over the country…..and the rest is history.

  • 0
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    I acually respect the British Justice system where the Judiciary execise authority over the parliament and abesence of a constitution makes the leagl system superior
    What Sri Lanka needs as abotion of current constitution by force and re establish a fair constitution to prevent such incidents
    SF can take the lead ?

  • 0
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    Wow, an excellent piece, and we say mea culpa, mea culpa, mea maxima culpa, for we voted the Govt’s who first dispossessed our Tamil Brothers and Sisters and then dispossessed us. The tyranny of the majority ruled and what a loss of life, waste of economic resources as we defended our ethnic values, not looking to the future.

    Imagine the possibilities if we used those resources to make Srilanka a modern and sophisticated state, Top class Learning Institutions in Each Province, churning out an English speaking employable workforce for the global market, export of nurses, teachers, skilled workers, alas the old bogeyman, sleeping under our skin plays it’s hand.

    Even now, the irritations are about the Rajapaksa antic. It is not about justice and fairness to all Srilankans, but only to the Sinhala majority.

    Here lies the rub, before we look at the Rajapaksas, we must look at our selves, we are responsible to the madness in the motherland through commission and omission.

    Perhaps the time has come to rectify these deficiencies in our constitution, we can start the journey now.

    • 0
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      Spot on! We the people are ever ready to bitch about the politicians, but we never ask ourselves why is it that we are continuing the elect the same set & help to propagate the tyranny!

  • 0
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    OK Basil, so far so good, but I am an old cynic. Either: The regime will ignore the ruling and do as it will – that is go through with an illegal “impeachment” in defiance of the law. Or: It will subvert the import of the SC determination by some strategem, and have its way by subtrefuge or other means.

    Have no illusions about the nature of this regime. Hence the basic task remains unchanged, to educate the masses and to mobilise them to safeguard their own democratic rights.

    • 0
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      Agreed. As long as the people are ignorant and act like the common buffaloes (that is how I describe the people of our country!), we have very little hope.

    • 0
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      I agree with Mr.Kumar David. Like most dictators in history, MR and his brothers don’t care for justice or the rule of law. All they want is to consolidate their power and form a ruling dynasty that will last forever and ever amen. MR did not keep company with the likes of Gaddafi for nothing. MR is the executive leader of the country, and will be so until his death because of the 18th amendment. The armed forces and police are controlled by his goat brother (including permanent rehabilitation of people against the regime via ‘White Unidentified Four wheeled Objects’) WUFOs :). The legislature is controlled by his eldest brother, and his 10% brother controls the economy while his sons are in charge of rugby, cricket, sports broadcasting, colombo night life and outer space. The only thing MR does not control is the Judiciary…and before too long that too will be in his pocket.

      In the last part of Tisaranee Gunasekara’s article, “2013: The Titanic Year?” https://www.colombotelegraph.com/index.php/2013-the-titanic-year/
      she states, “Once the impeachment is successful and the judiciary subjugated, the regime will be able to bring in any law it likes, including ones which violate constitutional provisions and/or the norms of natural justice. Bad laws will be passed by the subjugated parliament, and implemented to the letter by subjugated courts, rendering insecure the lives of most Lankans.

      When Mahinda Rajapaksa won the presidency in November 2005, if someone foretold that this moment will arrive in just seven short years, would we have believed it?”
      Well the answer to her question is a firm NO! But sadly this is what has happened. To those people who think that this regime can be changed by the ballot at the next election, all I can say to them is to wake up from their Rip Van Winkle sleep and lotus eating stupor. Only through a peoples revolution will we be able to wrest back this country from this hoodlum family and their henchmen and hangers on.

      • 0
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        Is it not utter stupidity if lessons are not learned from the fate that befell Ghaddafi, Mubarak and the likes. Even Mugabe has changed himself.

  • 0
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    Excellent analysis! Keep it up Mr. Fernando!
    Let’s hope that the UNP will come to its senses and boot out Ranil Wickramasinghe and his yes-men on the Kangaroo Court who did not even bother to go the the real courts after being summoned — on his instructions and AGAINST THEIR CONSCIENCE.
    Shows the level of the politicians in the abysmal parliament that does not even know the meaning of supremacy or the fact that to be supreme one has to first be ETHICAL!

    Now it is time to IMPEACH Mahinda and Chamal Rajapakse for causing great harm and disrepute to institutions and the sovereign people of Lanka.

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      Why impeach only Mahinda and Chamal? Ranil (and others) who defied the courts too should be impeached / held accountable for contempt of court!

      • 0
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        Absolutely, the UNP too hid behind the Parliament is supreme thinking and didn’t make things right.

        The JVP after all their troubles appear to be more mature than the UNP.

        It doesn’t smell good in the motherland. I think there is going to be more violence in the motherland. Something must give.

  • 0
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    I think GOSL has to think serious that it is no longer live in a vacuum.
    MR will use additional protests, media mud slinging and other intimidation methods….and if they fail…..and if CJ and the SC has sufficient willpower to stand….CJ will surely survive.

    There is not much Govt.could do now…..except to fold the whole PSC impeachment.

    • 0
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      Government’s last resort is the “white vans”. Don’t rule anything out with the King and his clan!

  • 0
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    The clash between the legislature and the chief justice has reached its climax, said media minister Keheliya Rambukwella today (Jan. 03).

    Keheliya has climaxed.

    • 0
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      ha ha, sexually perhaps.

  • 0
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    The Regime under no circumstance will give up the fight, instead it
    will maneuver a “Democratic” come back using the 18th Amend. and the
    services of the 27000 DN Bill newly contracted employees in all the Provinces, coupled with the 83,000 in the Police who have been bribed with an 100% Allowance increase. With the EC placed under “House arrest” the computers will reveal the results as required,just as “border-line” wins where necessary. There is no chance of the Regime missing the chance to establish a 100% “Democratic Dictatorship”, which if Zimbabe and Myanmmar could do, whilst maintaining UN Membership, why not SL with China/Russia to support it.! With new Ambassadors of henchmen to “banana” Countries,more UN Votes could be easily purchased for use at a future UN Gen.Assembly Vote, where the Diaspora will be
    influential. The metamorphosis to Dictatorship is very evident.

    The regime did not kill 40,000 of its citizens for nothing?
    Only the English readers do comment compared to the real voters, who prefer to be non-voters due to sheer disgusting economical status.

    disgust.

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