( November 04, 2012, Hong Kong/ Colombo, Sri Lanka Guardian) Under the present circumstances and under the
1978 constitution, when the president does not want the Chief Justice, the
president just tells them to get out and go home. The way he does it is called
impeachment proceedings. Once the president decides to file such proceedings -
he has a two thirds majority in parliament - the victimized person has no real
option. His or her fate is sealed and the only options open are to resign and
go away, as Chief Justice Nevil Samarakoon, did it or be impeached and thrown
away.
Impeachment is an act of might. The rights and
wrongs are not weighed in the matter. So-called charges can be cooked up and
may be about the most trivial matters. In an article to a Sinhala paper, Gomin
Dayasiri, a senior lawyer, stated that in Sri Lanka a judge can be impeached
very small reasons. The charge against Chief Justice Neville Samarakoon was
about some comment he made at some school prize giving.
Just last week, at Maha Veediya in Galle man’s
leg and hand was cut off and he was stabbed and left in the road struggle and
die. A video footage about this incident was a circulated in the internet. It
was a gruesome sight of extreme barbarism. The act of impeaching of judge is
symbolically more or less a similar kind of act of might in Sri Lanka. The
knife with which the judge will be stabbed is the two thirds majority that the
ruling party has in the parliament.
Thus, looking into the impeachment process with
the idea of finding some kind of rationality is falling for a basic fallacy.
Under the conditions in Sri Lanka and under the 1978 constitution it is just
public stabbing and nothing more.
J R Jayawardana’s mean scheme
No one as mean as J R Jayawardana has held the
position of the head of the state in Sri Lanka since the time of his
self-appointment as the president of Sri Lanka. Having obtained a four fifths
majority in parliament due to exigencies of the time and clever campaign by his
deputy R Premadasa, and not due to J R Jayawardana’s popularity, he was able to
obtain this four fifths majority. Realizing how fast things change in Sri
Lanka, J R Jayawardana quickly created a constitution just to suit himself and
to enjoyed absolute power. In the constitution he created provisions that made
it next to impossible to remove a president by way of an impeachment. On the
other hand, he made provisions to make it quite easy to remove a superior court
judge, including the Chief Justice.
Once the impeachment decision is taking by the
president, there is no room at all to ensure any kind of justice. Thus a
superior court judge, whose task it is to ensure justice for everyone, is
himself or herself without any possibility of justice, as has been pointed out
by a former Chief Justice.
It is difficult to understand why the judgers of
Sri Lanka, the lawyers and also the intellectual community, cowed down to the
1978 constitution, which declared the president to be outside the jurisdiction
of the court for any matter whatsoever. The head of the executive place himself
above the law. Once this was done, there was hardly any possibility of
preventing the entire scheme of the rule of law breaking down, and this also
turned constitutionalism upside down. However, there was hardly any resistance
by the judiciary or by the legal profession. Perhaps they were all mesmerized
by the four fifths majority the government had in parliament. Even the
otherwise honorable Neville Samarakoon QC accepted this constitution and agreed
to be Chief Justice of Sri Lanka, over the heads of the other judges of the
Supreme Court. At this point in time, the legal intellect of Sri Lanka froze or
got paralyzed. The consequences that came, about which there are a lot of
lamentations now, are a direct result of the failure to resist the imposition
of this constitution.
There are many lamentations and one is a book
publish by S L Gunasekara, a senior lawyer, entitled Lore of the Law and
other Memories, the latter part of which is worth reading to get some idea
of what has happened to the judiciary and the legal profession in Sri Lanka.
There he quotes D.S. Wijesinghe,
President's Council, who said, "We now have a new Parliament and with
it democracy vanished. We are now about to get a new Superior Courts Complex
and with that justice will vanish".
Making the judiciary a branch of the Executive
The separation of powers is basic to democracy.
The legislature, executive and judiciary are the three separate branches. While
they complement each other as three branches of the system of governance, one
cannot be a branch of the other. Their independence is at the essence of the
judiciary. This independence is inherent into the task of defending the law and
protecting the dignity and the freedom of the individual.
In the scheme of 1978, the whole structure was
rebuilt in a way to have only one unit and that is by putting the judiciary and
the legislature all as branches of the executive, while the jargon of
separation of powers was kept.
It was easy to make the legislature into merely
a branch of the executive, and the symbolic gesture by which this was done was
by demanding letters of resignation from all the members of the ruling party,
which had to be handed over to the Executive President. This was held as a
threat over them. The task for the legislature was (and is) clearly to vote for
whatever that the executive dictated them to.
However, with the judiciary, it was a more
complex affair. That was why a conflict soon developed between the Executive
President and Chief Justice Neville Samarakoon. That conflict was manifest at
the very inspection of the 1978 constitution and it took a long time for
executive to maneuver its way to suppress the judiciary into a position that it
would accept being a branch of the executive.
The present impeachment is perhaps the final
stage of settling this and making sure that the judiciary of Sri Lanka is
nothing more than a branch of the executive.
The massage that this impeachment is giving to
the next Chief Justice and the other superior court judges by the Executive
President is to be his stooges or the stick of impeachment will be on you.
The place of lawyers under this scheme
When the judiciary is a branch of the executive,
the idea of the independent legal profession also goes under with that. The
role left for lawyers is also to be stooges to the executive and to go behind
this or that person to get favours from them on behalf of their clients. In fact,
that has already happened to a great degree; there are some who have learned to
make a fortune by playing that role, but, for those who wish to pursue law,
there is already no room.
Under such circumstances, what happens is that
the courts become something like a marketplace. Litigating there is to use
various forms of bargaining. There, again, there are those who have their way
with the executive, and they can even get out of committing bloody murder, as
has already happened on several occasions in broad daylight.
The implication of all this is that there is no
big drama or a struggle between forces that will manifest itself in the days to
come over the impeachment proceedings. It is a pre-arranged drama, where
political cruelty and mean cunningness will demonstrate how it has
destroyed all the possibilities of justice in Sri Lanka.
- AHRC Statement
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