From the moment that Minister Keheliya Rambukwella announced to the media that the CJ would not be impeached, it was rather obvious that that was precisely what the government intended doing. He fooled nobody. 117 MPs have signed a notice of a resolution containing charges including acts committed in her personal capacity for the presentation of an address and handed it over to the Speaker on 1st November, 2012. The proviso to Clause 107(2) makes it mandatory for the Speaker to satisfy himself that the said notice sets out full particulars of the alleged misbehaviour of the Chief Justice before entertaining such resolution and placing it on the Order Paper of Parliament. If, as contended by the UNP, no Court has defined misbehaviour, the Speaker is required to act quasi-judicially in arriving at his decision.
He cannot, and indeed he dare not, claim to be acting judicially and will be well advised to bear in mind that his definition of misbehaviour is subject to scrutiny by the Supreme Court for consistency with the Constitution. There certainly cannot be any automatic appointment of the Select Committee, as contended by the UNP The Speaker will do well to bear in mind the view of the majority of the Committee comprising of Lalith Athulathmudali, Ranjit Atapattu, Festus Perera, C. Rajadurai, M.A. Abdul Majeed, Paul Perera, Anura Bandaranaike, Dinesh Gunawardena and Sarath Mutetuwagama stated in respect of the charges against Chief Justice Neville Samarakoon, viz. “The standard of proof required is very high. In all the circumstances of this case, while this Committee cannot but condemn this speech, we cannot come to the conclusion that the Chief Justice is guilty of proved misbehaviour”.
Even though this opinion is not binding on him, he will be well advised to bear in mind that the said opinion was expressed in the face of a powerful President who commanded a 5/6th majority in Parliament. It is reported that the Speaker will take steps to appoint a Parliamentary Select Committee the same day, after a party leaders meeting, consisting of four members from the government and three from the Opposition. This step could be taken only if the Speaker declares that he is satisfied that the notice does in fact, set out full particulars of the alleged misbehaviour.
The four from the government cannot obviously include anyone of the 117 signatories to the notice of the resolution because they cannot be judges in their own cause. The Select Committee shall notify the Chief Justice of the alleged misbehaviour that she may make a written statement in defence within a stipulated time and/or be heard by the Committee in person or by representation. The burden of establishing the charges by placing evidence admissible under the Evidence Ordinance, before the Committee is on the 117 members who made the allegations.
From the time it appoints a Select Committee, the Parliament acts at most in a quasi-judicial capacity and certainly not in a judicial capacity as contended by the UNP. Since no Court has defined misbehaviour, the determination made by the Parliament according to its own definition, has necessarily to be subject to Judicial Review. Expecting MPs now in Parliament to act in a judicial capacity bringing their minds to bear on the facts as Judges would do, and to refrain from acting politically in this instance is wholly unrealistic and fanciful, in the present context.
The success or failure of any organization depends largely on the head of that organisation. The standards are set by the Head who puts in place the necessary measures to ensure compliance with those standards by adopting various strategies – the least sustainable method being through instilling fear into the minds of the rank and file. The sovereign people of this country were blessed to have Chief Justice Neville Samarakoon to set the standards as high as they should be. His successors have not been able to arrest the steady erosion of those standards by interference by the powerful Executive using both carrot and stick as deemed necessary. For the first time after Samarakoon CJ we are fortunate to have a Chief Justice who, like all human beings, may not be perfect, but is prepared to stand up and defy the tyranny of the Executive.
I well remember the hue and cry made by many lawyers when she was appointed to the Supreme Court, in 1997. By then I was already disillusioned by the arrogant attitude displayed by many Judges when dealing with litigants and their counsel. I believed then, from reports of her conduct as a member of the Human Rights Task Force, that she would possibly be as good, if not better than most other judges. She has since displayed an exemplary judicial temperament and I have never seen or even heard of reports of her being deliberately rude or unfair. She has now reached the pinnacle of the judicial branch of the state. Surmise, fuelled by the grapevine, gives us a fair idea of who is likely to be appointed as Chief Justice if this attempt at impeachment succeeds, and only the outcome is certain. The state will ride rough shod over us, the sovereign people, and wreak havoc throughout the country.
Bandaranayake is an individual and cannot, under any circumstances be held guilty for the conduct, of her spouse or any other individual, unless of course it is established by clear evidence that she was the one who caused such conduct. “He who avers must prove” and the charges that has been levelled, must be explicit and established by those who bring them, with evidence admissible according to the Evidence Ordinance. The accused must necessarily be deemed innocent until proved guilty, as clearly set out in Article 13(5) of our Constitution.
The Chief Justice has asserted clearly that she has always acted in keeping with the hallowed traditions of an Independent Judiciary and she is prepared to face any impeachment motion brought against her. We, the sovereign people of this blessed island cannot be passive onlookers. The possibility of a sham trial being conducted as in the infamous case of there Samurdhi employee who was tied to a tree cannot be ruled out. Civil society must gear itself to ensuring that justice is done to their Chief Justice. If justice is denied to her, Sri Lanka is in for turbulent times leading to anarchy. We can no longer go about our own business expecting that someone else will be the target.
The famous words of Pastor Nicacoller, who was arrested by the German Gestapo in 1938 ring loud and clear. “In Germany, the Nazis first came for the Communists, and I didn’t speak up because I wasn’t a Communist. Then they came for the Jews and I didn’t speak up because I wasn’t a Jew. Then they came for the Trade Unionists, and I didn’t speak up because I wasn’t a Trade Unionist. Then they came for the Catholics and I didn’t speak up because I was a Protestant. Then they came for me, and by that time there was no one left to speak for me.”