| by J.C. Weliamuna
(December 31, 2012, Colombo, Sri Lanka
Guardian) There was much publicity given in State media, run by a group of
well-known hate campaigners, that the impeachment of the Chief Justice is the
right thing in the anti-corruption discourse and that that Sri Lanka can be
proud of such an impeachment.
We are not at all surprised with this line of
crusades, particularly at a crucial time in our history when the Government
will do anything possible under the sun to use its hidden investments and human
resources.
Firstly, no sensible person will disagree
that any allegations against a judge must be investigated. Such allegations
must be investigated by an impartial and independent body and within a
framework of the Rule of Law. The objections from the lawyers and others
against the current impeachment on the Chief Justice is that the entire
impeachment process is politically motivated and has been done without
following the basic principles of natural justice or Rule of Law.
Secondly, there is evidence on how the seven
members of the Government conducted the impeachment inquiry; no sensible person
would disagree that the inquiry was a sham and no reasonable opportunity was
given to the Chief Justice to defend herself. She was humiliated and no
disclosed procedure was adopted for the inquiry.
Let us forget for the moment the
constitutionality of the impugned Standing Order 78A. In and outside
Parliament, the Government and its propaganda tools – print and electronic
State media – carried out an extensive hate campaign against the Chief Justice
and the lawyers.
The Chief Justice was forced to leave the
inquiry and the four Opposition Members were also compelled to leave. Finally,
in a one day inquiry, the seven Government MPs found the CJ guilty of some
charges! We now know that the other four Members were not even given the draft
report for their consideration. Instead, two Members out of the seven have come
out openly in a shameless attack on the Chief Justice on state media.
Thirdly, all basic norms, nationally and
internationally, requires the Governments to follow the basic principles of
Rule of Law in any inquiry, even in relation to corruption investigations. For
example, the United Nations Convention against Corruption (UNCAC), ratified by
Sri Lanka, recognised the need to follow basic rules of law in relation to
corruption investigations and trails, etc.
UNCAC is not introduced to replace the
concept of Rule of Law and hence it is not possible to hang a convict or cut
the hands of a convict, when a person is convicted of corruption. Why?
Anti-corruption movement, like the human rights movement, are there to promote
Rule of Law, and not to entomb the Rule of Law. What is expected in the
anti-corruption movement is to establish a cherished society that respects the
Rule of Law, instead of the rule of the jungle.
UNCAC is not about prosecutions and
investigations; rather a broad framework to prevent corruption and much more.
The anti-corruption movement is a progressive movement. The United Nations
Office of Drugs and Crimes (UNODC), responsible for many aspects of UNCAC, and
the Rule of Law Unit of the UN, chaired by Deputy Secretary General have no
different views on the rule of law and anti -corruption. It states:
“Fostering respect for and
adherence to the rule of law is at the centre of the international community’s
efforts to address crime, drugs and terrorism. Governance and anti-corruption,
strengthening justice systems and improving safety and security are key aspects
of UNODC’s work in promoting the rule of law worldwide.”
There are examples the world over on
anti-corruption investigations by independent bodies; probably the Hong Kong
Anti-corruption Commission is the most effective and has won the respect of
all. It gives all opportunities for any suspect to face a fair inquiry, whilst
the legal system in Hong Kong ensures full and impartial trial for the suspect.
No rights have been taken away from the suspect. Why? A country respecting a
social stability cannot forget basic values of a civilised nation.
The practical and theoretical arguments
against the impeachment of the Chief Justice are based on one fundamental
issue; she was not given a fair hearing and she was thereby deprived of basic
protections under Rule of Law.
Merely referring to a bank account details
(obviously obtained unlawfully) or unproved charges (made by some MPs) do not
establish the guilt of a person (in this case the Chief Justice), unless the
trial was conducted by a competent body, in accordance with accepted norms. If
we do not accept the presumption of innocence, we do not need a trial.
The world has seen similar mock trials and
those who respect Rule of Law and democracy do not consider those trials as
fair. We do not consider those who are convicted in such a trial as guilty;
rather we consider it a trial against the very tribunal for lacking integrity.
Personal bias had first infected some of the members of the Parliamentary
Select Committee but now we see personal bias has also infected others as well.
This is the test case to prove whether we are civilised – individually and as a
nation.
At a time false propaganda is a matter of
national policy, there is a duty on the part of honourable individuals to stand
up to it, rather than becoming a part of the propaganda machinery.
As Mr. Kanag-Iswaran PC opened
his submissions in courts on the reference cases on impeachment: “We are at
a critical juncture of our nation. The barbarians are at the gate of the Temple
of Justice. You let them in, they will destroy all that is sacred to us and
install in the altar of justice false prophets.”
The propaganda of the Government, now joined
by a chosen few, tells the nation that false prophets are already being
installed. The barbarians are at your doorstep!
(The writer, LLM, is a
Constitutional Lawyer, human rights activist, Eisenhower Fellow and Senior
Ashoka Fellow and former Executive Director of Transparency International Sri
Lanka.)
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