|State sponsored gangs parade with a man contemptuously impersonating CJ ( photo Courtesy Lankadeepa)|
For whom the Bell tolls! by Elmore Perera, Attorney-at-Law
01. The Parliament of the Democratic Socialist Republic of Sri Lanka purportedly consists of representatives elected by the Sovereign people of Sri Lanka. This Parliament is currently debating (on 10th and 11th January 2013), what is undoubtedly the most “momentous” issue ever placed on the order paper of Parliament. “Momentous” for the reason that their “inevitable”, “unlawful” decision will have “irreversible” and “drastic” consequences from the moment it is taken.
02. ‘Inevitable’ because the division in Parliament will be by name to ensure that our representatives will not be troubled by their consciences – if they have any. ‘Unlawful’ because our elected representatives seem to be either ignorant of or blind to the fact that we the people in the exercise of our inalienable Sovereignty have, by Constitution, delegated in writing only specific mutually extensive functions and powers to the Legislature, the Executive and Judiciary.
‘Irreversible’ because untimely death of the physical body resulting from rapidly escalating violence is irreversible as far as life on this earth is concerned. ‘Drastic’ because “civilisation” will be relegated to history and any civilised behaviour will be considered traitorous or even acts of treason, and expeditiously dealt with by Kangaroo Courts (with apologies to the Kangaroos) bound by the extrajudicial norms set by this incredulous PSC.
03. To avoid conflicts arising between our more literate and less literate representatives as to what the exact limits of the powers so vested in them are, the Sovereign people in their wisdom, have provided a very special mechanism. They have, by Article 125(1), entrusted the resolution of such disputes neither to the Legislature of wise and not so wise people, nor to the amiable and popular Executive President nor to the numerous Judicial bodies established by the Legislature, but solely and exclusively to the Judicial body established by Constitution and named as the “Supreme” Court. No other individual or institution has been deemed by the Sovereign people as being capable or worthy of being vested with any “supremacy”.
04. The Sovereign people did, however, by Article 74(1) specify that, “Subject to the provisions of the Constitution, Parliament may by resolution or Standing Order provide for –
(i) the election and retirement of the Speaker, the Deputy Speaker and
the Deputy Chairman of Committees, and
(ii) the regulation of its businesss, the preservation of order at its sittings and any other matter for which provision is required or authorised to be so made by the Constitution. Sarath N. Silva, Asoka Silva and Mohan Peiris who seem to be heading the team of experts counselling the President, well know that “any other matter” referred to above cannot, under any circumstances, include vesting of judicial power on pedestrians with no respect for the Rule of Law.
05. To faithfully and independently discharge such onerous duties it was imperative that the tenure of such judges should be guaranteed by law. By Article 107 it was provided that they could only be removed from office by the rigorous process of impeachment, on the limited ground of ‘proved misbehaviour or incapacity’. As a safeguard against arbitrary action it was clearly provided that Laws or Standing Orders were all subject to the provisions of the Constitution, and also that the Supreme Court alone could decide whether or not such laws or Standing Orders were in accordance with the Constitution.
In that context Article 107(3) provided that “Parliament shall by Law or by Standing Orders provide for all matters relating to the investigation and proof of the alleged misbehaviour or incapacity”.
06. After the motion to impeach Samarakoon CJ was tabled on 3rd April, 1984, Parliament hurriedly adopted Standing Order 78A on 4th April, 1984 but failed to impeach him. In a separate report MPs. Dinesh Gunawardena, Anura Bandaranayake and Sarath Muttetuwegama:
(i) conceded that seeking to inquire as to whether or not Mr. Samarakoon was guilty of “proved misbehaviour” under Standing Order 78A was violating the provisions of Article 4(c) of the Constitution,
(ii) urged that the matter be referred to the Supreme Court for an authoritative opinion thereon, and
(iii) urged the House to amend Standing Order 78A along the lines of the Indian provisions where the inquiry is conducted by Judges – and not by Parliamentarians! Having received many subsequent patronage appointments, the same Dinesh Gunawardena is now flexing his muscles to “crack the Government Whip” without any signs of embarrassment or remorse at the remarkable metamorphosis he has undergone in the past 28 years. The opinions of the plethora of self-proclaimed “Constitutional experts” in the House have been considered more “authoritative” than any opinion expressed by the Supreme Court.
07. On 3rd August 2000, Prof. of Law G.L.Peiris and Attorney-at-Law Dilan Perera, Member of the present PSC, presented a Bill to amend the Constitution proposing in Section 151(4) thereof, inter alia that “A resolution for the presentation of an address to the President for the removal of the Chief Justice shall not be entertained by the Speaker or placed on the order paper of Parliament unless an inquiry has been held by a Committee consisting of three persons, each of whom hold, or have held office as a Judge in the highest Court of any CommonwealthCountry”.
08. On 20th June 2001, Speaker Anura Bandaranayake, based on the advice of the late Mr. H.L.de Silva PC, rejected a misconceived direction of Sarath N. Silva’s Supreme Court to refrain from appointing a Select Committee to inquire and report on the allegations contained in a resolution to impeach Sarath N. Silva CJ. The Speaker also stated “However, MPs may give their mind to the need to introduce fresh Legislation or amend the existing Standing Orders regarding motions of impeachment against judges of the Superior Courts” and referred to the aforementioned provision tabled in the House in August 2000.
09. On 9th October 2012, Speaker Rajapaksa, with the purported concurrence of the Party Leaders, interpreted the Constitution in a patently puerile manner by stating that the delivery of the Petition or Determination relating to the Divineguma Bill to the Secretary General of Parliament without delivering it to the Speaker was tantamount to the “substitution of the Secretary General for the Speaker”, which substitution, he said, required a Constitutional Amendment. He thereafter entertained the impeachment motion on 1st November, 2012.
10. On 29th November, 2012 the Speaker interpreted Speaker Bandaranayake’s aforementioned June 2001 ruling as having “upheld Legislative Supremacy”, purported to act in terms of Article 107, and ruled that “he deems Court notices irrelevant” and that “notices served on him and members of the PSC appointed by him, have no effect whatever and are not recognised in any manner” – a far cry from the advice tendered by the late Mr. H.L.de Silva, PC.
11. On 31st December 2012, Cabinet Minister and member of the PSC Susil Premajayantha, also an Attorney-at-Law, stated that “the impeachment inquiry is not a legal probe but a legislative process and therefore proving of charges is not necessary”.
12. On 2nd January 2013 Leader of the House, Minister and member of the PSC, Nimal Siripala de Silva, Attorney-at-Law stated that the government was not worried about criticism by the International Community and would not, under any circumstances reverse the impeachment process.
13. On 3rd January 2013 the Supreme Court determination that “the PSC has no legal power or authority to find a judge guilty, as Standing Order 78A is not law,” was announced in the Court of Appeal.
14. On 4th January, 2013 the Deputy Speaker, Attorney-at-Law Chandima Weerakkody, in effect admitted that the finding of guilt by the PSC in respect of 3 charges was outside the mandate given to them and therefore ab initio void, by asserting that “the PSC was only mandated to investigate and report but was not mandated to make a finding of guilt”. This is undoubtedly the advice he would have tendered to the
Speaker before the Speaker made the aforementioned statement on 29th November 2012.
15. At a meeting of Party Leaders on 7th January 2013, morning, the Speaker had stated that “the determination by the Supreme Court was not recognised by Parliament”. Thereupon all opposition party representatives walked out. The Deputy Speaker later announced that the Speaker and the government representatives had decided to debate the PSC report on 10th and 11th January, 2013 and take a vote at 6.30 p.m. on the 11th.
16. The Court of Appeal, on 7th January 2013, in the exercise of the power to exercise “judicial review on findings or orders of persons exercising authority to determine questions affecting the rights of subjects” provided by Article 140 of the Supreme Law has quashed the findings of the PSC re the guilt of the CJ.
17. Addressing the ‘Swarna Purawara’ award ceremony at Temple Trees on 8th January 2013, the President said that “As a lawyer he had absolute confidence in the independence of the Judiciary and therefore everyone must work to protect the independence and respect of the Judiciary”. He went on to say that “No one can betray the Sovereignty of the people, and the Supreme Court has no right to go against the Legislature”. He was obviously referring to the Sovereignty of the people as set out in the 1972 Constitution in terms of which, the National State Assembly was “Supreme”.
Significantly, this was the position that prevailed when he was admitted to Law College on the basis of a “Quota for Political Parties” imposed on the Council of Legal Education by Prime Minister Sirimavo Bandaranayake. His numerous legal counsel have apparently failed to update him on the radical alteration of this position under the 1978 Constitution which is currently in force.
18. On 9th January, the JVP and the DNA announced that they would respect the Court’s rulings and refrain from participating in the impeachment debate. The Bar Association condemned the decision to debate the impeachment based on findings declared unlawful by the Courts and called on its membership to boycott Court proceedings on the 11th and 12th January. The Asia Director of the International Commission of Jurists stated that “the assault on the independence of the Sri Lanka Judiciary in recent months has brought Sri Lanka to the brink of a Constitutional Crisis”, and cautioned that “if the impeachment motion is passed in Parliament in defiance of decisions of the Country’s Judiciary, it will signal a massive breakdown in the rule of law and checks and balances.
This current crisis threatens to leave Sri Lanka with little or no means to hold State Officials accountable for serious human rights violations, imposing a climate of impunity in Sri Lanka”. He reiterated the call to the Government to take active measures to promote the independence of the Judiciary and the rule of law by adhering to international standards and practices in impeachment hearings.
19. Notwithstanding massive protests by politicians, lawyers and Trade Unionists the juggernaut moved relentlessly on. The late Mr. H.L.de Silva’s one time Instructing Attorney Nimal Siripala de Silva, opening the debate by referring to provisions in the 1946 and 1972 Constitutions, (seemingly unaware of the currently valid provisions in the 1978 Constitution) commented that “the Supreme Court’s interpretation that the PSC process was unconstitutional was no real interpretation of the Constitution at all. Only the legislature has the power to do what the Supreme Court had done.
We do not see this interpretation by the Supreme Court as guidance to us. It is misguiding us”, stating that only the legislature had the power to do what the Supreme Court had done. He concluded his learned interpretation of the Constitution by stating that “in case Parliament does not pass a resolution, the President has Constitutional powers to remove the CJ from office.”
20. Significantly, Professor of Law G.L.Peiris asserted that “the Supreme Court judgment is not worth the paper it is written on”, and that “Parliament must jealously guard its powers and rights and not allow them to be taken away.” He even said that “Judgments given regarding the PSC amounted to “Constitutional heresy” and no one should be allowed to usurp the powers of Parliament and set a wrong precedent. Significantly, most of his law books have been written on the basis of the 1946 and 1972 Constitutions. Perhaps he has deleted from his memory the relevant concepts incorporated in the 1978 Constitution, which he championed with vigour at certain times in his chequered, but consistently opportunistic, career.
21. The all-knowing Media Minister at a press briefing stated that the Government was willing to discuss the SC ruling, but emphatically asserted that there was no question of introducing retrospective legislation to accommodate the SC ruling, and the impeachment process against the CJ would be conducted under the present law. He is obviously unaware of the fact that the SC ruling is based entirely on the present law and not on any imaginary future legislation.
22. The grapevine reveals that a Committee of four hand picked beneficiaries of patronage appointments made by this President, is surreptitiously carrying out an investigation into allegations other than the three allegedly “proved” charges, with a view to holding out that there has indeed been justice and fair play in the impeachment exercise.
23. The writing on the wall is getting clearer with every passing moment. Just demands, strong urgings and even humble appeals to the President to act in a statesmanlike manner and reverse the unlawful process set in motion, have all fallen on deaf ears. The only response to these requests has been the brazen acts of lawlessness by obviously state-sponsored goons, both within and outside Parliament.
24. It seems inevitable that the bell will toll! But for whom or what will it toll? Not only for the “raped Constitution” nor for the “murdered Supreme Court”, but also for “Democracy itself”, and with it “all civilised behaviour”. The law of the Jungle reigns!
25. “Vengeance is mine” says the Lord. Justice will surely prevail! But “When?” and “At what cost to human lives?” Only time will tell!
The writer is an Attorney-at-Law Founder CIMOGG and Past President OPA
11th January, 2013