1 October, 2020

Blog

Towards A Country Called Tomorrow

By Malinda Seneviratne –

Malinda Seneviratne

‘It is better to impeach too often than too seldom; if those in positions of power cannot be virtuous, they should at least be nervous’ [after Joseph Sobran]

President Mahinda Rajapaksa promised that the ruling party will show its strength when necessary. The ruling party did so on Friday, passing the impeachment motion against Chief Justice Dr. Shirani Bandaranayake, courtesy the massive number advantage, 155 for 49 against. It was a foregone conclusion. The argument in favor of the motion referred heavily to the notion of parliamentary supremacy and the weight of Standing Orders (in particular 78A) vis-à-vis the word of the courts.

The debate itself was held in spite of and in contradiction of the Court of Appeal (CA) upholding writs of certiorari and Prohibition petitioned for by the Chief Justice, where the Parliamentary Select Committee (PSC) appointed under and in terms of Standing Order 78A was determined not to have legal power or authority to find anything that affects the legal rights of the CJ. The court thereby quashed the report of the PSC. The CA in fact refereed the larger question of constitutional interpretation to the Supreme Court (SC), which had ruled that 78A violates the constitution. The other elements of the petition (bias, deviousness etc.) the CA did not have to determine on, therefore.
The above, then, can be described as the butt-ends of parallel processes where the legal muscles of the relevant lines tested themselves against one another.

Processes are never clinical. People and interests are naturally parts of the story. Rhetoric has a say. Words are used. In high profile cases the stakes are high, not just for the protagonists but their hangers-on and anyone and everyone who senses that there are morsels or even something more substantial to be lapped up if the cookie crumbles their way. There has been, therefore, much vilification across the board.

The charges against the CJ are serious to the point that those against Neville Samarakoon seem utterly trivial. Details of her bank accounts and activity therein warrant, in the very least, query of post-suitability. Details of the Trillium transaction and related discounts indicate infringement of Article 110(2) of the Constitution, ‘No Judge of the Supreme Court or Court of appeal shall perform any other office (whether paid or not) or accept any place of profit or emolument, except as authorized by the Constitution or by written law or with the consent of the President.’ Financial experts would maintain that the term discount indicated loss to the seller and profit to the purchaser. ‘Gift’ is indicated. As such the legality of the move notwithstanding decisions regarding the bench hearing the relevant case raises serious questions of objectivity and dignity of office. Allegation needs to be proved, though. For such, there should be provision. The CA determination leaves one to conclude that there are none.

Many who have opposed the impeachment process have studiously sidestepped such issues, choosing instead to focus on matters of moral authority and perceptions of vindictiveness, both of which can be argued cogently. Political readings where logic is mixed with selectivity make heady cocktails. Allegation can be read as vindictive finger-pointing and this can be confronted by finger pointing in return. For every single matter on which the CJ’s behavior is questioned, one could argue, similar queries can be directed at her detractors. The politics of convenience, therefore, marked the process from the beginning to end.

That kind of politicization could have been avoided, if for example the process was a product of separate investigations, subject to the caveat that nothing can stop objectors crying ‘foul’ and alleging premeditation. It could have been minimized if process was not padded by a campaign to ‘educate’ the public. It can be argued also, that such efforts may have fed into the interests of those who have an axe to grind against the regime, spurring frenzied commentary about attacks on the independence of the judiciary, dictatorial tendency. The notion ‘international conspiracy’ naturally acquired currency.

It was not a matter of determining guilt or innocence, as far as the CA was concerned, but rather one of propriety. If 78A is unconstitutional, then it should be transformed into an Act of Parliament, the constitutionality of which the SC has to determine. Parliament, in such an eventuality, could have insisted that the incumbent CJ should absent herself from the inconsistency check, since we were in impeachment mid-stream. At this point, Parliament would have been forced to assume the integrity of the bench, whose ‘independence’ is clouded by the composition of the Judicial Services Commission, the Chairperson of which is the CJ herself, ex-officio. ‘Mid-process,’ however, is the rhetorician’s ‘home turf’. That’s where ‘foul’ is heard the loudest. Given the degree of politicization, sobriety would have been obtained dearly for suspicion is at a peak and egos at risk of disintegration.

The fact of the matter is, without 78A and until such time some new measure is introduced, the 1978 Constitution would remain one where there are no provisions whatsoever to oust an errant judge of the higher courts. That’s an unacceptable state of affairs. Introducing something now would set a bad precedent, but one could argue that there’s no choice but to do so.

Those who object to the CA determination can argue that judicial review is never conferred in the abstract or in every conceivable situation. Permissibility is detailed. Powers are caveated with limitations. They can also state that constitutional provisions for ousting of judges of the Supreme and Appellate courts in countries that subscribe to the Latimer House Principles have applied them only to the subordinate judiciary. In both Britain and Australia, Parliament has close to absolute power in determining the ways and means of impeaching judges of the higher courts, noting however that both countries have second chambers which are less about political parties.

The problem is that review of impeachment measures was not done when they had to be done and were neglected when necessity was pointed out. Queen’s Counsel Nadesan’s submissions on the matter in his defense of Justice Samarakoon is almost three decades old, so few can claim that no one noticed. Bandaranaike, Muttetuwegama and Gunawardena (of the PSC relevant to that process), in their dissent, urged sending the matter to the SC for a determination. Nothing was done and so the flaw remained.

On the other hand, those objecting to the CA ruling could claim that Article 107 (3) gives Parliament the option of providing procedure for impeachment either by Law or by Standing Order. The Legislature can perforce choose to ignore determinations of the judiciary, they would argue, contending that the ruling traverses the jurisdiction and powers of the Legislature. They would, like their objectors, refer principles of power separation.
It is then the lack of clarity regarding the separation of powers that makes for multiple interpretations. This is why political convenience is enjoying a field day. This is why, regardless of the seriousness of allegation and the guilt or innocence of the accused, it is possible for all protagonists to present cogent expositions of respective positions.

For all these reasons, it is objectively impossible to salute one or the other of the interpretations as ‘true’, ‘valid’ and/or ‘overriding’. When one or other is upheld as ‘The Relevancy’, what is in fact being asserted is political preference and/or political objection, propriety being a convenience, an alibi shaped by preferred outcomes.

As things stand, the President (who is both Executive and Commander-in-Chief of the Armed Forces) has the power to give effect to the Parliament’s determination, by word and if necessary deed (of enforcement). The President can, in the name of the people and dignity of the post of Chief Justice, go ahead to sack her and appoint a successor. This, however, will not untie the interpretive conundrum pertaining to the matter of ousting judges of higher courts. Just as erring on the side of the Court of Appeal determination would not indicate a superior-anterior positioning of judiciary and legislature respectively, this course of action would not make Supreme Court slave to Parliamentary master forever, even though precedent is a powerful referent and ally in the machinations of the pernicious.

The statesmanlike option would be to desist, not out of deference to interpretive superiority of the Court of Appeal or fear of possible censure by unfriendly movers and shakers in the international community and consequent political discomfiture, but because CJ, impeachment and constitutional conundrum are trivial to someone who has vision and has the larger and sustainable interests of the country at heart.

This is perhaps a moment for deep and sober executive reflection. The President may, if he so chooses, declare that inasmuch as he (let us say) respects the determination of the Parliament and inasmuch as he (let us say) finds error in the court determination, he recognizes that a serious constitutional flaw exists, one which blurs dangerously the boundaries that separate the three branches of government. He can add that moreover the 1978 Constitution has many other errors, including those pertaining to checks and balances, those of transparency and accountability in particular. He can therefore declare that this crisis (as some brand it) calls not for amendment but overhaul. The matter of infusing clarity and robustness and moreover dignity to appointment processes, positions themselves and ousting procedures would be thereby resolved but only as part of a larger and necessary process of elevating the constitutional document to one consistent with democracy, in spirit, in word and deed.

*Malinda Seneviratne is the Chief Editor of ‘The Nation and his articles can be found at www.malindawords.blogspot.com .

Print Friendly, PDF & Email

Latest comments

  • 0
    0

    If my memory serves right, this President and the one before him promised to abolish the executive presidential system, but forgot that promise as soon as they got hold of power. The current one has gone one step further and set himself up to contest beyond the second term. So, what faith can you possibly have that he will work towards making life better?

    • 0
      0

      Chandra:
      I think you forgot a couple of words here. Shouldn’t your last sentence read “….better FOR HIM AND THE REST OF HIS FAMILY?”

    • 0
      0

      The title to this article should have been, “Towards A Country Called Sri RajaPakistan.” ;)

  • 0
    0

    The proof of guilt of the Chief Justice,determined by the PSC should be made available to the people by publishing the entirety of evidence led before it.
    This is necessary,as many MPs to whom this ‘evidence’ was made available,have voted against the impeachment motion inparliament.
    Some have even abstained.

  • 0
    0

    “This is perhaps a moment for deep and sober executive reflection. The President may, if he so chooses, …”

    You can bet your bottom rupee that “deep and sober reflection” will not change anything that will take away any of his almost unmitigated power.

    Or that he will “…declare that this crisis (as some brand it) calls not for amendment but overhaul. The matter of infusing clarity and robustness and moreover dignity to appointment processes, positions themselves and ousting procedures (think of Mervyn, Duminda, etal) would be thereby resolved but only as part of a larger and necessary process of elevating the constitutional document to one consistent with democracy, in spirit, in word and deed.”

    Really wishful thinking!!

    • 0
      0

      Peter

      Malinda writes:

      “He can add that moreover the 1978 Constitution has many other errors, including those pertaining to checks and balances, those of transparency and accountability in particular.”

      The major omission that I consider a serious misreading of history is the non recognition of my people, their language, their inalienable right to their ancestral land, ………in the constitution.

  • 0
    0

    Malinda Seneviratne has written much, while actually saying very little. He has gone to great lengths to present what he believes to be a “balanced” view of two opposing positions, which is a useless exercise because the matter is already clear to most reasonably intelligent people.

    I am no lawyer and make no pretence of understanding legal niceties, but I do have a reasonable amount of common sense. Malinda says that a discount is a “loss to the seller and a profit to the purchaser” and the discount may be therefore be viewed as a “gift” to the CJ. The important point that he, and presumably the PSC appear to have missed, either accidentally or deliberately, is that the CJ was not the purchaser. She was only acting under power of attorney granted by her sister who was the purchaser. Hence any “gift” was to her sister and not to her. One further point that should have been clarified is whether similar discounts have been given to other purchasers of apartments in the Trillium complex. Discounts are given for a variety of legitimate reasons. Sometimes, one gets a discount for full payment in cash. Sometimes, discounts are given as seasonal offers. Sometimes to boost flagging sales. It should have been verified whether the CJ’s sister was the only buyer to be offered such a discount, for whatever reason. Also, in the matter of failing to declare certain bank accounts in her annual declaration of assets and liabilities, one wonders whether a bank account with a zero balance can be described as an asset. I don’t know. Maybe Malinda can enlighten me.

    • 0
      0

      Kingsley Wijesinhe says:

      “the matter is already clear to most reasonably intelligent people.”

      Reasonably intelligent people in Sri Lanka?

      Where are these reasonably intelligent people? If they do exist please preserve them in museums. One day we can show these rare breeds to our future generations, with the cation

      “once upon a time these people did walk on this island”

      Can you name a few?

    • 0
      0

      Marking the price up and offering discounts to attract customers is a very simple aspect of capitalism — every second hand car salesman does that. As you rightly say, these things are all too clear to most reasonably intelligent people. But the likes of MS, DJ, GLP, VN and RW have are so gifted that they can take temporary leave of absence from their intelligence to defend the King.

  • 0
    0

    No proof is necessary. If our Maharajano says CJ is guilty that is more than enough. Leela

  • 0
    0

    Yes the time is now ripe for a new Constitution with the appropriate checks and balances, and it is only this President who has the electoral two thrids majority in Parliament to do so.

    However the question of if he would do it for the best interests of the governance of this Country, rather than for his personal future longevity, cannot be answeredm with clarity, making the whole process suspect.

    What a crying shame when there exists such a great chance for a hopeful future for all who currently live in this country! Let us all wish that sense will prevail out of this conundrum in the interests of the future of Sri Lanka. What a chance for a place in history! If only they had a vision.

  • 0
    0

    Governance of a country cannot be carried out in the fashion of a slanging match or street fight. The whole farcial process is a poor reflection on the govt and its members. Thugs and hooligans they qualify to be, not respected members of parliment. Even if the constitution is flawed there is no excuse for people not using their common sense or obtaining legal advise. All these precedents were known beforehand.

  • 0
    0

    Readers,

    You forget that we need to respond critically to the writers point of view. No purpose is served in trying to highlight the flaws in the system. Look at the writers flawed argument.

    Here are some pointers

    01. Is the parliament representative of the people? No. Does it matter to the writer? No

    02. Was there due process? No does it matter to Malinda? No

    03. Should the CJ stand up for her rights? No according to Malinda

    04. Is he interested in the aftermath of the impeachment? No

    05. Look at this quote again “He can therefore declare that this crisis (as some brand it) calls not for amendment but overhaul”. Until then mayhem is fine with Malinda!

    He carefully couches his pro-government stance with seemingly balanced statements. The fact remains that the impeachment was a witch hunt and was done with political expediency. Malinda must see the impeachment for what it is.
    Thereafter we can debate the merits and demerits of impeachment, the lacunae in the constitution, and imputing checks and balances

  • 0
    0

    Malinda Senevirathne, as usual, has become the obedient guard dog of the govt.

    President Rajapakse or the ruling party did not use the power for the betterment of the country. They made more cracks in the system. While many, mostly powerful people, escape the system (e.g. Duminda and Mervyn De Silva just two of those who escape). President Rajapakse knows that and he blames JR Jayawardane’s Constitution while uses it for his personal advantage.

  • 0
    0

    We all know that Mr Senevirathne is writing all these articles whilst sitting on Mahindas lap.

  • 0
    0

    MALINDA SENEVIRATNE IS A …

    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy
    https://www.colombotelegraph.com/index.php/comments-policy-2/

Leave A Comment

Comments should not exceed 200 words. Embedding external links and writing in capital letters are discouraged. Commenting is automatically disabled after 7 days and approval may take up to 24 hours. Please read our Comments Policy for further details. Your email address will not be published.