| by Udaya
Gammanpila
Views expressed
in this articles are author own
( December 19,
2012, Colombo, Sri Lanka Guardian) The impeachment motion against the Chief
Justice passed an important milestone last week. The Parliamentary Select Committee (PSC)
submitted its report to the Speaker after the completion of its inquiry. According to the Standing Orders of
Parliament, the parliamentary debate on the report should commence only after
the lapse of one month. Hence, all
parties are expected to maintain silence on the issue for this month. Unfortunately, nobody wants to observe this
rule. This columnist does not make an attempt
to break the rule by discussing the contents of the report. Nevertheless, let us shed light on the events
associated with the impeachment.
According to
him, the then government did not allow the CJ to enter the Parliament premises
in his vehicle. When Gunawardena was
travelling towards the Parliament, he found the police was body searching the
CJ. He shouted at the police officers
and got the CJ into his vehicle.
Further, the CJ can appoint only one lawyer to represent him in terms of
Article 107. The then government
strictly implemented the provision and the CJ was allowed to appoint only one
lawyer. The CJ had to wait outside the
Committee Room for nearly two hours before being called inside.
A cordial
beginning
Fortunately,
there were no such unpleasant incidents when the present CJ attended the
proceedings of the Parliamentary Select Committee (PSC). Although the CJ was entitled to nominate only
one lawyer, six lawyers nominated by her were accepted by the PSC. Not only the CJ but also her lawyers were
allowed to enter the parliamentary premises in their own vehicles. This was an exclusive privilege afforded to
them, because even a Chief Minister is expected to use the shuttle service from
the first security point onwards. There
were no long waiting times for the CJ before commencing the proceedings. Indeed, it was a cordial beginning.
Unfortunately,
the CJ lost the grip of the impeachment process and it is now controlled by the
opposition. Hence, it was heavily
politicized by her camp. The CJ chose
the Court premises instead of her residence, to leave for the impeachment
investigation at Parliament. Strangely,
she used the public entrance in place of the judges’ entrance to come out of
her office, creating an opportunity for lawyers to shout slogans in her
support. Lawyers shouted slogans such as
‘Long live our CJ!’ and ‘Down with the impeachment!’ There might have been lawyers, who wanted to
support the CJ with a view to receiving favours in the cases heard before
her. This behaviour was unprecedented
because Chief Justice Samarakoon, Justices Collin-Thome and D. Wimalaratne
never behaved in that manner. Nobody
knew their departure times and venues.
The CJ behaved
more like a politician than a judge on the first day of the impeachment
investigation, the day she faced an inquiry held by her disciplinary
authority. Parliament plays a judicial
role in respect of the President and Senior judges. People closely observe the manner the judges
respect their Court to decide how they should respect the Courts headed by
judges. If people behave like the CJ
when they also come to Courts, the judiciary will become a mockery.
The Prime Minister
is ranked before the Chief Justice in the Protocol of Precedence. However, if the juniormost Magistrate
warrants him to appear before the Court, he will dutifully do that. The PM stands and respects the magistrate
when he arrives in Court. He respectfully
accepts the order of the Magistrate irrespective of its reasonability or
severity. Although the Prime Minister
has not been summoned by criminal Courts in the recent past, a senior minister
was bailed out by a Magistrate recently.
Minister S. B. Dissanayake was imprisoned for two years. Several parliamentarians, provincial
councillors and heads of local authorities had been in remand for years and
months.
When the Supreme
Court held that President Kumaratunga’s term would end in 2005, instead of
2006, she did not organize protest marches.
She did not criticize the judgment.
She bowed her head to the Supreme Court and left the office. Several years ago, the Magistrate’s Court
decided to remand the son of the minister, who is notorious as a ‘thug
minister’. However, he did not organize
a protest before the Court. He did not
threaten the magistrate. Instead, he
addressed the media and said “I respectfully bow my head to the order of the
Court of Law”.
Imagine the fate
of the Courts of law, if an indecent minister decides to follow the example set
by the CJ. When a minister is warranted
to appear before a Court, the minister decides to leave for the Courts from the
ministry. The supporters shout slogans
such as “Down with the Courts! and “Let’s ignore Court orders”. We cannot
expect the ministers to stop at the same point where the CJ stopped. The ministers may go beyond that. Hence, the supporters of the minister may
come to the Court as well. It is quite
possible since Courts are not restricted places like the Parliament. They may use abusive language on the judge
and demand him to discharge the minister.
If the order is against the minister, they may occupy the Courts until
the order is changed. They may
physically abuse the judge and police officers would ignore these happenings
because of the presence of the minister.
Hence, the precedence set by the CJ is the biggest threat to judicial
independence, in my point of view.
When the
impeachment proceedings were in progress, the CJ decided to walk out stating
she had no confidence in the process.
She should have participated in the process until its conclusion, as a
mark of respect for the Constitution of the Nation, although she was not satisfied
with the process. She had the opportunity
to challenge the report of the Select Committee nationally and internationally
after the conclusion of the proceedings.
There is a risk
of politicians, leading businessmen and notorious thugs withdrawing from legal
proceedings claiming they have no confidence in the legal proceedings following
the precedence set by the CJ. If they
withdraw from the process, the judiciary can warrant them. If they say “We have the right to boycott the
Courts as the CJ did”, Police will not arrest the warranted persons.
The judiciary
can maintain its dignity only if the Courts are respected by the
Executive. In the present context,
Police arrest and produce warranted persons before the Courts. Prison Officers remand the accused as ordered
by Courts. The Government Analyst
Department and other agencies produce reports and documents as directed by the
Courts. If the Court orders are ignored
by the Executive, the judges will be helpless as much as a beggar on the street. Hence, the CJ’s decision to leave the
impeachment proceedings may bring long lasting repercussions.
Rude behaviour
unbearable
According to
certain reports, the CJ decided to leave the PSC because the committee members’
rude behaviour was unbearable. I felt really sorry for her when I heard this
because she was very Courteous as a judge of the Supreme Court. I have never seen her being rude to lawyers
or litigants. She used to apologize when
she failed to commence the Court proceedings at the scheduled time. However, Minister Anura Yapa, as the Head of
the PSC, officially denied this rumour.
Since I was disturbed by this news, I personally inquired from Minister
Susil Prema jayantha about this incident.
He categorically denied the rumour and said the CJ in fact did not speak
at all. He admitted there were heated
arguments between her lawyers and the members of the PSC.
I, as a lawyer,
have been subjected to the rudeness of the judges. Some judges are very rude to both lawyers and
litigants. In addition to judges,
litigants are subjected to the rudeness of the lawyers as well. Most of the rape cases are withdrawn on the
basis there is no evidence. In reality,
the rape victims want to withdraw the cases as they do not want to be verbally
raped by the lawyers.
The CJ’s legal
team consisted of seasoned lawyers.
Hence, she should have kept her legal team there if she really wanted to
leave, as in terms of Article 107 of the Constitution, she can appear in person
or by representative. Unfortunately, she
did not rely on this provision. Because
of her conduct, there is a risk of powerful persons withdrawing from Court
cases, claiming they have no confidence in the Courts.
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