We Don’t Know In This Drama Who Judas Is Behind The Chief Justice
This is for the first time in our parliamentary history, that we are debating an impeachment against a Judge of the superior court namely the Chief Justice of the Republic. Whether it will be left as a grey patch or as a purple patch in our parliamentary history, I leave it to the posterity to decide.
Article 03 of our Constitution precisely and categorically states that in the Republic of Sri Lanka sovereignty is in the people and is inalienable. Sovereignty includes powers of government, fundamental rights and the franchise. These have become a much-debated topic since the impeachment against the chief Justice is moved in the Parliament.
While the incumbent coalition government is vociferous in taking up the position that the legislature is supreme to the judiciary those who are learned in political science and fair minded people strongly demonstrate that the 3 pillars on which the temple of justice rests are equal within their scope and power. In the absence of evenness of the three pillars, namely the legislature, the executive and the judiciary, the golden shrine that rests upon them would collapse. The Golden Shrine denotes democracy.
There is no debate that people while exercising their franchise, repose their sovereignty in the hands of representatives in the Parliament on a contract basis for a limited period. Therefore Members of Parliament are only the custodians of the people and they are obliged to exercise legislative powers within the parameters of the Constitution. In the absence of checks and balances, objectives of democracy would be rendered nugatory and absurd.
That is the reason why in the 18th century, French political philosopher Charles- Baron de Montesquieu introduced the concept of separation of powers based specially on the system of Westminster Parliamentary democracy in the United Kingdom. During the period of British Colonial domination in this country, they had introduced a system based upon that concept, and it is well enshrined in the Soulbury Constitution as well. Even at present, Article 4 of our Constitution has given due recognition to the concept of separation of powers without any ambiguity, which is regarded as a rule by all jurists all over the world. Concentration of powers in one or in a few, always tempts to dismantle democratic structure and take a lead role towards a dictatorship. That is the reason why Lord Acton said, that;
“Power tends to corrupt and absolute power corrupts absolutely”.
The independence of the judiciary is the greatest achievement of people in the annals of human civilization. It was not bestowed upon people as a sovereign gift but it is the outcome of longstanding struggles launched and sacrifices made at the expense of a multitude of lives. It was 24 centuries ago that the greatest Greek philosopher Aristotle said;
“Every fool in this world thinks that he is born to rule the others”. That is the reason why the great leaders of the world explored the possibility of creating an alternative rule to dictatorship and found the system of democratic governance, after tremendous efforts.
The historical proclamation of Magna Carta by King James, as far back in 1215 is considered the cornerstone in English government, in which it is enshrined that;
“To no one we will sell, to no one deny or delay the right of justice.”
It is in our time that one of the most respected British jurist Lord Denning who said;
“It is the greatest constitutional document of all times – the foundation of freedom of the individual against the arbitrary authority of the despot”. It has immensely motivated people to fight against vulnerable rulers.
At a time when the judicial independence was at stake in United Kingdom in 1688, people staged a revolution and King James, II was ousted from the Crown, and people had accepted his successors William and Mary, on the condition among other things, that they shall guarantee the tenure of Judges essential for their true independence of mind and action. That revolution achieved the goal to ensure that in England, brutal intimidation of Judiciary would not occur again, by passing the Act of Settlement in 1701. Thereby the most essential and cardinal duties of all representatives of the legislature as well as of the members of the Judiciary are to protect and safeguard the independence of the Judiciary, above all.
In the midst of the great Civil War to preserve United States as a country, speaking at a dedication of a national cemetery at Gettysburg, in 1863, the 16th U.S. President Abraham Lincoln addressed the nation and stated that; “Democracy is a government of the people, by the people, and for the people” which is considered perhaps the best definition for democracy in the modern world.
It is an inherent and an embedded attitude of human beings that they refuse to be slaves of others and abhor to be subjects of any dictatorship. Article 1 of the UN Charter on Human Rights, as well as Article 12 of our Constitution has guaranteed that all persons are equal before the law. The Rule of Law is a precious right, the people in democracies all over the world enjoy, and that is considered the most vital and predominant concept in law. Theodor Roosevelt, the 26th president of US said that;
“No man is above the law and no man is below it, nor do we ask any man’s permission when we ask to obey it. Obedience to the law is demanded as right; not asked as a favour.”
From time immemorial Greek philosophy held that;
“Nobody has a more sacred obligation to obey the law than who makes the law.
Former Chief Justice Bhagawathi of India has once said that;
“The Judge infuses the life and blood into the dry Skelton, provided by the legislature and creates a living organism appropriate and adequate to meet the needs of the society.”
It is within such parameters that the rulers are obliged to perform their respective duties and obligations.
Notwithstanding all the inimical consequences of the British Rulers, we have inherited an illustrious judicial structure which had been operative even under the British domination. It was in 1930s, Abraham, C.J., Martinez, J., and Sooertz, J. who were appointed by the British Rulers ordered that the British Governor’s order to extradite Mark Anthony Bracegirdle, a British planter in Sri Lanka, was illegal and quashed the decision concerned. .
It is all the more significant to note that the said extradition order was given at a time when it was said that the sun never sets on the British Empire.
In the case of Queen Vs. Liyanage in 1960s T.S. Fernando, J., L.B de Silva, J., and Sri Skandarajah, J., who were appointed as members of the Trial-at-Bar to try the coup-d’etat, held that the amendment of Section 440 A of the Criminal Procedure Code to empower the Minister to appoint judges to the Trial-at-Bar was illegal, and held that their own appointments were bad in law. The legislature accepted that judgment without any challenge and with much respect to the Rules of Law.
In an election petition filed by Wijeyananda Dahanayaka against Albert Silva, Nevil Samarakoon, Q.C., the Chief Justice of the Republic decided that while having the powers to make laws on a particular matter under the Constitution and if the Parliament has failed to do so, Parliamentarians should not be given the benefit of their own folly, omissions and negligence. It was in that spirit Asoka de Silva, J., and Hector Yapa, J as then Justices of the Court of Appeal issued a writ of quo warranto nullifying the membership of Parliament of Dr. Rajitha Senarathna, in which Hon.Dilan Perera, MP was the petitioner.
There is no doubt that this government is overwhelmed by triumph and raptures of war victory. It is our duty to remind the rulers that the great leaders in the world, while knowing dire consequences of such conduct never rejoiced and were not under a spell of illusions and hallucinations.
One of the greatest leaders in the world, Winston Churchill, after winning the World War II, said that, he was guided by the maxim that;
“Magnanimity in victory, defiance in defeat”. We are also aware that Nelson Mandela, after languishing in prison over 29 years, achieved the freedom for his nation in South Africa. When his advisors suggested celebrating the victory, he scoffed at them and said “Don’t celebrate revenge.” That demonstrates the humble approach of great leaders in their efforts to effect reconciliation of all communities in their countries. But if they were not prudent enough, they also would have divided their countries by labelling people as patriots and traitors, which would have culminated in catastrophes and devastations. But we have seen that there had been rulers in the recent past who thought that were invincible, for example; President Zine Ben Ali in Tunisia, President Hosni Mubarak in Egypt, and President Colonel Ghadhaffi in Libya. Therefore they had resorted to their own whims and fancies with no regard to repercussions and dire consequences.
It is appropriate to admire the conduct of Nelson Mandela; in 1995 the Constitutional Court of South Africa struck down the proclamation made by President Mandela in an Electoral Boundary Delineation matter. On the same day, President Mandela appeared in the media and said that he honestly believed that the Parliament had given him power for such a proclamation. Since the Constitutional Court found otherwise, he said he respected the decision of the court and added that;
“This decision clearly demonstrates that, in the Republic of South Africa, even the President is subject to the Law”.
It was in 2004, when British Government headed by Prime Minister Tony Blaire presented Asylum and Immigration Bill with an ouster clause that no court shall question the validity of the decision arrived at by the Immigration Tribunal, Chief Justice Lord Woolf cautioned the government that it would be a blot on the reputation of the government and in any event, court will not be bound by such a restriction in the exercise of its judicial functions. That government was humble enough to avoid any confrontation among the executive, legislature and the judiciary in a most prudent manner.
At present we have a problem on the rule of law. It is relevant to note what Michael Tamplet said;
“We have a problem when the same people who make the law get to decide whether or not they themselves have broken the law.”
In the present scenario, the country has almost come to a state of anarchy. We are not concerned about the individual who is holding the office of Chief Justice, but we are seriously concerned about the Institution.
Anybody who holds that post shall be given due recognition and respect, as Roman Emperor, Justinian the Great, said that;
“Justice is the constant and perpetual wish to render everyone his due.”
The present Chief Justice Dr. Shirani Bandaranayake has every right as any other citizen of this country, as guaranteed by our Constitution. At present the coalition government is led by Sri Lanka Freedom Party which was formed by late Mr. S.W.R.D. Bandaranayake, in which his wife as well as his daughter became the head of the State, several times after winning elections. But under the present regime, all Bandaranayaikes have been receded to the background for reasons best known to everybody.
It is the opinion of the greater majority in this country as well as of the international community that the Chief Justice has not been given a fair trial. On the other hand as we understand, the Chief Justice has poised herself with the firm belief that she should not compromise with this issue as she is innocent. It reminds us that the former Prime Minister and the founder of SLFP who sacrificed his life for it, late Mr. S.W.R.D. Bandaranayaike said, that;
“If you go in search of the Holy Grail, why should you settle for a silvern tankern”.
Holy Grail means the plate used by Jesus Christ at his last supper. It may well be that Chief Justice Bandaranayake wishes to see that justice is meted out at the end.
There had been exemplary characters in the world, who were victims of concocted charges and denied of fair trials.
It was in the 4th century BC, Great Greek philosopher, Socrates was charged for corrupting the youth and for his blasphemy. With the majority decision of the Jury, he was convicted and killed by giving him hemlock. (poison) His associate Plato was ready to take him out of the country secretively to save his life. But Socrates firmly said that it was important to obey the law of the State than saving his life. As a citizen he considered the existence of the State with law and order was essential and that every person was bound to be a law-abiding citizen.
Thereafter in the 17th century, Italian astronomer and philosopher, Galileo Galilee, the father of modern science, was convicted for discovering heliocentric theory. Although the teaching in that era was that the Sun was rotating around the Earth he discovered that it was otherwise. Such a discovery in astronomy was considered an offence deserving capital punishment.
In the human history, the most aggrieved victim was nobody else other than Jesus Christ who was denied a fair trial. The only offence allegedly committed by him was that he has said at the last supper that he was above the King. Judas who was one among 13, at the last supper betrayed Jesus Christ and King Herod wanted to kill him on those charges alone.
Although Pontius Pilate found Jesus Christ was not guilty, but due to the influence of the King and the Priests he was crucified while saving the thief Barabbas who had been in fact convicted for crimes. This amply demonstrates that throughout in human history those who deserved to have fair trials were given it, only rarely.
That shows politics of those in the higher echelons, could, at times be stupid.
We do not know in this drama who Judas is behind the Chief Justice. But the fact remains that what has happened today will be written as history tomorrow. Knowing as we are of those happenings, the fate that might befall the Chief Justice, Dr. Banadaranaike, cannot spring a surprise to us.
There is a saying that;
“Advice is least heeded when it is most needed.” Specially, people with power are tempted not to heed any good advice, as they are excessively intoxicated with power.
At this juncture, let us not forget what Abraham Lincoln said;
“Let every man remember that to violate the law is to trample on the blood of his father and to tear that charter of his own and his children’s liberty.”
At last please do not forget what Mahathma Ghandi in his wisdom referring to justice said. that;
“There is a higher court than the court of justice and that is the court of conscience. It supersedes all other courts.”
We are shocked and dismayed by the disastrous consequences that would befall our people by this array of events. However, viewed from a political dimension, the opposition is not that bewildered, because we are certain that this coalition government is now expediting its inevitable downfall by this ludicrous tendency to debilitate the judiciary.
*Speech delivered by Wijeyadasa Rajapakshe, P.C., M.P. at the impeachment in the Parliament on 11th January 2013.