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Asian Tribune is published by World Institute For Asian Studies|Powered by WIAS Vol. 12 No. 914

Chief Justice Impeachment; President can restore fairness and righteousness

By Raj Gonsalkorale

Once some events are set in motion, they take their own course and they sometimes end with consequences neither predicated nor desirable. It appears that the Chief Justice Impeachment issue is one such series of events now almost running out control with undesirable and unnecessary consequences.

First of these events was the decision to impeach the Chief Justice. While no law abiding and law respecting citizen would argue for not impeaching the Chief Justice had she been proven to have acted in a manner unlawful and unethical, the very same law respecting and abiding citizenry would ponder two key questions. One, whether the decision to impeach the CJ was political rather than one of good governance, and secondly, whether the alleged impeachable offences were known to those who decided to impeach her for a long period prior to commencing the impeachment proceedings, and if so why no action was taken earlier.

Explanations have been given by the authorities and they have been disputed by their distractors. There is an impasse or at least a crisis in confidence as regards the bona fides relating to the decision to impeach the CJ. Except some government supporters it is unlikely that there are many amongst the citizenry referred to earlier who would be convinced that the decision to impeach the CJ was purely an act of good governance.

Secondly the interpretation of the constitution and the law relating to the impeachment itself. As the writer is neither a lawyer nor a student of law, he can only highlight an increasingly vocal view that appears to believe that the process adopted to institute impeachment proceedings is flawed.

In this respect they are referring to what a leading member of the current government and a senior cabinet minister, Mr Dinesh Gunawardena then in the Opposition, and two other Opposition Members of Parliament at the time, Mr Anura Bandaranaike and Mr Sarath Muththettuwegama, said in respect of the Parliamentary Committee appointed to pursue impeachment proceedings against then Chief Justice Neville Samarakoon in 1984.

“Although Mr. Nadesan’s arguments have considerable cogency they were unable to come to a definite conclusion on that matter. Therefore they urge H.E. the President to refer this matter to the Supreme Court for an authoritative opinion thereon –under Article 129(1) of the Constitution” Moreover the separate report goes onto state that “The signatories to this statement however feel that the procedure that Parliament finally adopts should be drafted along the lines of the Indian provisions where the process of inquiry which precedes the resolution for the removal of a Supreme Court judge should be conducted by Judges chosen by the Speaker from a panel appointed for this purpose. We therefore urge the House to amend Standing order 72A accordingly.”

On this second matter of the constitutionality of the impeachment proceedings, similar to the first matter relating to the motive behind the impeachment, there is an impasse or at least a crisis in confidence as regarding the interpretation of constitution and an obvious lack of agreement amongst the lawmakers, with the likes of Mr Dinesh Gunawardena who appeared to hold a differing view earlier, now remaining silent.

The third matter of concern to many law abiding and law respecting citizens is the fairness of the impeachment process itself. The Chair of the PSC, Minister Yapa on the one hand, and Opposition members, Mr Kiriella and Mr Vijitha Herath on the other, have given interviews stating diametrically opposing interpretations of the process. These opposing views and much that has been written about the flaws in the process, appears to point out that there are serious questions about the fairness of the process.

An increasingly vocal view also seems to be saying that the government members of the PSC had pre-determined the CJ’s guilt even before PSC commenced proceedings and they acted contrary to the age old maxim that one is innocent till proven guilty.

Like on the first two events, the third one on the impeachment process itself has raised serious questions and created not just doubt, but even a conviction in the minds of some that the process was flawed and it had not afforded the CJ an opportunity to present her evidence and prove her innocence. Even worse, rightly or otherwise, a rapidly building view appears to be that ordinary citizens would not have a ghost of a chance to prove their innocence in politically motivated cases, if the Chief Justice of the country had no chance to do so.

Explaining why the four Opposition members walked out of the PSC, John Amarathunga, one of the four MPs who sat in the PSC had told the Washington Post that the four of them walked out of the sittings of the committee because they could not be a party to an unfair process. He had stated further the government members using their numerical majority rejected what they said were reasonable demands to establish a procedure for the inquiry and to give Dr Bandaranayke an opportunity to cross examine the accusers and enough time to pursue the three hundred documents relating to the case.

He further stated that too many of the accusers and judges in the case were from the same group – government law makers, whereas in other countries such inquiries were assigned to separate legal professionals appointed by Parliament. He further stated that government law makes treated Dr. Bandaranayake in an insulting and intimidating manner and their remarks clearly showed they already found her guilty.

The same newspaper reported that the US State Department spokesman Mark Toner as saying, “US is deeply concerned about actions surrounding the impeachment trial and urge the government and ensure due process. These latest developments are part of a disturbing deterioration of democratic norms in Sri Lanka including infringement of the independence of Judiciary. He called upon the government to uphold the Rule of Law.

What are the possible and unintended consequences in respect of the three events mentioned above?

Firstly, if the government pushes ahead with the impeachment based on questionable motives, unclear constitutional interpretations and provisions, and a flawed process that will depict the CJ as a political victim convicted without a fair trial, it will sap the confidence of the law abiding and respecting citizenry of the country in the way justice is meted out in the country.

Some well-meaning and concerned sections within this citizenry, as well as other opportunistic elements will internationalise this unsavoury episode and it will result in a reinforcement of the negative view held by several Western nations on Sri Lanka’s human rights record. For those LTTE supporters still smarting from the defeat in the hands of a determined President and the Sri Lankan Armed Forces, justice denied to the Chief Justice of the country will be manna from heaven to push for censuring and punishing Sri Lanka.

Secondly, it will reinforce the view amongst some that Sri Lanka is a totalitarian State where dissent is not welcome and is not tolerated. They will say that a Chief Justice and a judiciary that dared to differ with the Executive are being punished.

Thirdly it could tarnish the good name of the President who defeated terrorism and achieved peace that the country had not known for some 30 years. It may dwarf the economic achievements spearheaded by the President and draw away many supporters of the President denying him the level of popular support he currently enjoys in the country, and based on which the ruling UPFA has won one election after another over the last few years.

A serious drop in such popular support will embolden those from within who have chosen to be silent at least for the moment, to raise their heads and destabilise the government and even precipitate a government change. The President no doubt knows that political friendships can be very unstable and short-lived.

The country needs President Rajapaksa to guide and lead the reconciliation process to bring true and long lasting amity amongst all its wounded people and also lead the economic war to make Sri Lanka the wonder of Asia were justice is done and is seen to be done. A regime change is not what is needed.

A normally pragmatic person who knows how to read the pulse of the people, it appears that he may have listened to and been guided by some who do not understand the pulse of the people. It is well for the President to remember that he is safe from his enemies, but not necessarily from those who pretend to be friends.

If the Chief Justice has acted unlawfully and ethically, she has to pay a price for that. That is not the issue here. The issue is about asking the question whether she has been given a fair opportunity to prove that she has not acted unlawfully and unethically, and whether the government has gone through a constitutional process that is clear, unambiguous and unchallenged.

Unfortunately in the minds of many, there are doubts about the motive to impeach the CJ, about the legality of the process and about the fairness of the process.
The President has the capability and the commitment and above all the heart to ensure that fairness and righteousness is restored and there are no doubts left about the Chief Justice’s guilt if indeed she is found to be guilty after a fair inquiry.

The Parliament may be supreme, but that supremacy comes from the quality of those who are inside it and not from its ornate settings. Many people in the country do not regard some of our Parliamentarians as being worthy custodians of that supremacy. They may repose their confidence in them as being true custodians of that supremacy if they demonstrate they are impartial and fair, and they divorce politics from the judiciary when they are judging the judiciary.

This is probably an impossible task for politicians from all persuasions, and this may be why in 1984, the Dinesh Gunawardena, Anura Bandaranaike and Sarath Muththettuwegama dissenting report concluded “The signatories to this statement however feel that the procedure that Parliament finally adopts should be drafted along the lines of the Indian provisions where the process of inquiry which precedes the resolution for the removal of a Supreme Court judge should be conducted by Judges chosen by the Speaker from a panel appointed for this purpose.

We therefore urge the House to amend Standing order 72A accordingly.”

Two wrongs do not make a right, and Mr J R Jayewardene’s position in 1984 refusing to accept the recommendation in the dissenters report, should not be emulated now and cited as a precedent, as what would be far more righteous and fair would be to adopt the position articulated by Messrs Gunawardena, Bandaranaike and Muththettuwegama in respect of the impeachment of the former Chief Justice Mr Neville Samarakoon.

- Asian Tribune -

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