Choosing Constitutional Governance over Jackboot Governnance

| by Shanie

"I know

that anything is possible

Any time.

There is no safety in poems or music or even in Philosophy. No safety

in houses or temples of any faith.

And no one knows at what dark point

the time will come again of blood and knives, terror and pain, of jackboots and the twisted strand of rope. - Anne Ranasinghe

"An individual can live his/her life seeing the injustice around them, show a blind eye and die a forgotten entity or you can stand up against tyranny and make a stand. Which side, you the citizens take defines who we are as Sri Lankans." - Shaveen Bandaranayake

( November 24, 2012, Chennai, Sri Lanka Guardian) The misguided attempt by the Government to impeach Chief Justice Shirani Bandaranayake seems to have finally awakened the conscience of our people. For far too long, we have succumbed to gross assaults on the rights of the citizens by lapping up tales of threats from the rump of the LTTE, from the Tamil diaspora and an international community trying to destablise our country. Even today, the state media reports of the Professsor of Law of the University of Colombo, obviously referring to the mounting protests against the impeachment process, saying that no international organization or the UN could state that the procedure being followed was unconstitutional. He pathetically fails to face up the fact that the protests in Sri Lanka have come from every independent media and other independent organsations.

The latest to add their voices to the growing protests are the Civil Rights Movement of Sri Lanka, Friday Forum and the Citizen’s Movement for Good Governance. These three organisations have been taking a consistent stand on issues of civil rights and liberties and democratic values and good governance. The Civil Rights Movement has been in existence for over forty years ever since the southern insurgency of 1971, trying to safeguard the democratic rights of the people from the jackboot governance that we have become accustomed to and which the apologists for the government want us to continue living under.

Violating Article 4 c

Even Minister Dinesh Gunawardena, who normally is not prone to polemical statements, defending the impeachment procedure adopted has said that the government was committed to safeguarding the supremacy of parliament. Gunawardena also served on the Parliamentary Select Committee that heard the Neville Samarakoon Impeachment case during the Presidency of J R Jayewardene. That Parliament also had adopted the same procedure as being presently adopted. That eight member PSC had found the charges of misbehavior against the then Chief Justice were not proven. Gunawardena was one of the three members who, whilst agreeing with the rest of the PSC that the charges were not proven, submitted a separate report. In that minority report, Anura Bandaranaike, Dinesh Gunawardena and Sarath Muttetuwegama stated, inter alia:

"The point made by Mr Nadesan (Senior Counsel for Samarakoon CJ) was that in the context of a Constitution such as that of our country, in which the separation of powers was jealously protected, the PSC inseeking to go with this inquiry as to whether or not Mr Samarakoon was guilty of ‘proved misbehavior’, was violating the provisions of Article 4 c of the Constitution which stipulates that except in matters concerning parliamentary privileges – judicial power of the people shall be exercised exclusively through the courts.

The signatories to this statement, while conceding that Mr Nadesan’s arguments have considerable cogency – are not in a position to come to a definite conclusion on this matter. We would urge that H E the President could refer this matter to the supreme Court for an authoritative opinion thereon – under Article 129 (1) of the Constitution.

The signatories to this statement, however, feel strongly 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 Orders 78A accordingly."

Article 4 c of the Constitution referred to in the statement by Dinesh Gunawardena et al states that: "the judicial power of the People shall be exercised by Parliament through the courts, tribunals and institutions created and established, or recognized, by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, wherein the judicial power of the People may be exercised directly by Parliament according to law.

The Civil Rights Movement in their statement referred to the impeachment proceedings begun against the then Chief Justice Neville Samarakoon by the Government of J R Jayawardene. At that time, the Civil Rights Movement sent a telegram to the Speaker stating that the proposal to impeach the Chief Justice by a Parliamentary Select Committee was unconstitutional as it violated the concept of the independence of the judiciary which was part of of the basic structure of our constitution. "The actions of such a Select Committee would be ultra vires the powers of Parliament as they are not ancillary to the exercise of legislative power. Parliament has no judicial power (except in respect of its own privileges). Parliament enjoys no supervisory function over judges, in respect to whom its power is limited to removal from office for proved misbehaviour or incapacity. Such misbehaviour or incapacity has to be proved by proper procedure as envisaged by Article 107 of the Constitution. It follows that any inquiry must be by an independent judicial tribunal similar to that provided under the Judges Inquiry Act of 1968 in India. In Sri Lanka no such procedure has yet been created … The fact that so far this machinery has not been provided does not justify parliament resorting to unconstitutional methods which in effect undermine the independence of the judiciary."

Lawyers for democracy

The unconstitutionality of the present process and its violation of the rules of natural justice is also underscored by the Lawyers for Democracy, a group of practising lawyers who are concerned about justice and democracy in our country. In a statement signed by Lal Wijeynayake, a senior member of the Kandy Bar, and others on behalf of LfD, they state: (we quote the statement extensively because this excellent statement has not received the newspaper publicity it deserves:

" Lawyers for Democracy (LfD), raises serious concerns with the process that has commenced to impeach the Chief Justice of Sri Lanka, Hon. Dr. Shirani Bandaranayake. The impeachment follows in the wake of several other attempts in recent times to interfere and intimidate the judiciary, most recent incident being the attack against the Secretary of the Judicial Services Commission (JSC) in October 2012. These incidents, have now culminated with the attempt to impeach are a direct attack against maintaining an independent judiciary, a fundamental element in a functioning democracy. LfD urges that the process to impeach meets basic principles of rule of law and natural justice and ensure that the Chief Justice of Sri Lanka be provided with a due process and there be justice.

LfD is also dismayed with the recent developments in the Parliamentary Select Committee (PSC) which has been appointed to inquire into the 14 charges brought against her by 116 Members of Parliament (MPs). While desisting from commenting on the charges and terms of the PSC at this present moment, LfD is though concerned with reports indicating that the PSC is to exercise judicial powers in its deliberation in the impeachment process. Based on the limited information publicly available, LfD believes that the impeachment procedure provided by Standing Order 78 of Parliament contravene natural justice and is incompatible with the Constitution of Sri Lanka. LfD therefore supports and aligns itself with the view of the Special Rapporteur on Independence of Judges and Lawyers, Gabriela Knaul, that the present procedure to impeach the Chief Justice is incompatible with both the principle of separation of power and Article 14 of the International Covenant on Civil and Political Rights (ICCPR).

LfD wishes to point out at the outset that with a two third majority, the government has caused a Motion for impeachment to be forwarded, signed by 117 of members of Parliament, all from the government side. This process begins with this Motion and ends when the Parliament takes a vote to decide on the Chief Justice’s fate on a simple majority. Therefore the ‘proof’ of any misconduct has to be decided by a body that can look at the allegations objectively, impartially and not politically. But, the composition of the Parliamentary Select Committee is also lop-sided with 7 members for the government and 4 members for the opposition, raising a fundamental issue of bias and fairness.

In addition to the political dimension of the impeachment and irreparable damage such an exercise will have on the independence of the judiciary and the rule of law in Sri Lanka, LfD is also alarmed with developments in the PSC last week. Media reports have highlighted the speed with which the PSC has commenced its sitting, with the Speaker appointing 11 MPs (7 Government MPs and 4 Opposition MPs) to the PSC at 10.00am on 14th November 2012 and having its first sitting on the same day at 4.30pm. At 6.00 pm on the same day, the Chief Justice was personally served with the resolution containing the 14 charges. While such efficiency is to be applauded in any inquiry and investigation, it is unfortunate that such speed is not evident in other such processes. The unprecedented speed in constituting the PSC and commencing proceedings is also evident in the extremely short time of one week provided to the Chief Justice to show cause for the 14 charges. Such speed within the first few ayes of commencing proceedings begs the question whether the Chief Justice and her counsel will be provided sufficient time to adequately prepare and respond to charges made against her.

LfD is also dismayed with the lack of due respect shown towards the highest sitting justice in Sri Lanka. Reports indicate that the PSC has attempted to limit legal representation for the Chief Justice to one counsel, a limitation not provided in any known law nor the Constitution. LfD was also informed that although the Chief Justice through her counsel had requested for a six week period to respond to the charges, at the time of issuing this statement, this was not agreed to by the PSC, with correspondence informing her of her need to personally present herself at the PSC on 23rd November.

As practising lawyers in Sri Lanka, we hold that the general practice is for court to grant approximately six weeks or more for any Respondent to reply to allegations. Further, disciplinary inquiries against public officials are conducted generally after a preliminary inquiry is completed. LfD also notes that there is no limitation regarding the number of counsel that can appear for a client in a court of law. LfD is dismayed that the present PSC did not examine previous PSCs, in particular the one established to investigate into allegations made against the then Chief Justice Hon. N.D.M Samarakoon Q.C., where several counsel marked appearance. LfD is shocked that the Chief Justice of Sri Lanka is not provided with basic legal protections, raising further concern of independence and impartiality of the entire impeachment process."