| by Ranga
Jayasuriya
( December 16,
2012, Colombo, Sri Lanka Guardian) Elsewhere
in these pages Prof. Rajiva Wijesinha tells how he had been asked to come, and
then told to sign a resolution calling for the impeachment of the chief
justice, even without showing him the content of the motion. The learned
professor refused and he may have drawn
wrath from the powers that be, who in fact had appointed him through the
national list. But 116 parliamentarians of the ruling party were too eager to
please their political bosses and signed the resolution. They did not give a
damn if they were oblivious to the contents of the resolution they put their
signatures to. That is proof of the pathetic state of affairs in politics in
this country and the quality and the character of the people, we the voters,
have sent to the august House of Parliament.
 |
It is not clear whether the parliamentary process related to the impeachment would be suspended until the independent committee reaches its decision. Should Parliament decide to do it at the behest of the executive, that would question the much clamoured supremacy of the legislature, which Speaker Chamal Rajapaksa cited when announcing his decision to disregard the Supreme Court directives.
If it was
tempting for a bunch of ruling party parliamentarians to initiate the process
to impeach the chief justice and score brownie points, it also appeared to be
equally tempting for some elements within the inner circles of power. The Supreme Court ruling on the Divineguma
Bill had come as a rude shock to the
government, which appeared to believe that it has consolidated all powers.
However, now the
chickens have come home to roost.
After a highly
flawed Parliamentary Select Committee found Chief Justice Dr. Shirani
Bandaranayake guilty of three charges, paving the way for her impeachment, the
looming possibility of an international and even local backlash bleeped in the
government’s radars.
For a government
which strives hard to repair bridges with the civilised countries of the world,
the impeachment of the chief justice would bound to be a fatal blow. However, those calculations were missing in
the government’s game plan. The Bar Association of Sri Lanka (BASL) has
resolved not to recognise any replacement to the incumbent chief justice and
ask its international counterparts to follow suit. Yesterday, BASL in an
extraordinary meeting, passed three resolutions to this effect.
One of the first
salvos have been fired by the International Commission of Jurists, which on
December 6 issued an statement condemning the move.
“The impeachment
process against Chief Justice Shirani Bandaranayake ignores international
standards and practice,” the ICJ stated.
That was
followed by concerns raised by the three leading legal bodies of the
Commonwealth: The Commonwealth Magistrates and Judges Association (CMJA),
Commonwealth Lawyers’ Association (CLA) and the Commonwealth Legal Education
Association (CLEA), which raised grave concerns that the ‘judiciary and the rule
of law have been severely damaged’ due to the flawed procedure adopted in the
impeachment.
The three
associations noted that the PSC trial has violated the Commonwealth Latimer
House principles on the accountability and the separation of power.
“By its arbitrary
actions, and its failure to follow even its own constitutional safeguards for
the removal of judges, the Sri Lankan Parliament has seriously undermined that
principle and called into question its adherence to the shared values of the
Commonwealth,” the three associations had noted.
However, behind
the barrage of public statements, the government was evaluating worst case
scenarios.
One of such
would be the re-evaluation of Sri Lanka’s hosting of the much publicised Commonwealth
Heads of Government Meeting (CHOGM) in Sri Lanka next year.
Hence the
volte-face and another ‘independent commission.’
President Rajapaksa, speaking at an event to
ceremoniously declare open a building at the Institute of Chartered Accountants
in Sri Lanka, said that he would appoint an ‘independent committee’ to
re-evaluate the charges levelled against the chief justice.
“Personally, I
disagree with the stance taken by the government parliamentarians over the
impeachment motion. Some Members of Parliament are adding 4-1more problems to a
person who is already facing enough problems,” he said.
He had said the
independent committee which would be appointed by him would look into all
aspects of the matter and “on that basis I will take my decision.”
Later in the
week, during his breakfast meeting with newspaper editors, the president ruled
out claims that he had been compelled to appoint the committee due to
international pressure. “I alone appointed it,” he said, adding that there is
no constitutional provisions that require him to appoint the committee. This so
called committee is bound to further complicate the constitutional process.
This will be
detailed in this column.
The president
said his actions were not meant to challenge the PSC. Whatever the content of
the report, it would be forwarded to the independent committee, he said.
He complained
that the chief justice was continuing to hear cases and said that it was
‘unethical.’ Understandable enough, he saw another ‘international conspiracy’
behind the activism against the impeachment of the chief justice.
The president
cited that the Chief Justice of the Philippines was impeached, and appeared to
suggest his government has unduly been targeted. However, there is a rub. The impeachment of
chief justice Renato C. Corona of the Philippines was conducted in a televised
public trial, after US$ 2.4 million in
foreign currency was found in his deposits. His impeachment was cheered by
human rights groups and legal bodies which viewed it as ‘a constitutional process that protects the
independence of the judiciary’ as described by the Asian Human Rights
Commission. On the other hand, the impeachment of Chief Justice Bandaranayake
is being viewed by a discerning public as a veritable witch-hunt. Chief Justice
Bandaranayake has now written to the Speaker asking action against PSC members, who called her a
pissugeni (mad woman) and api me nonawa
thiyagena madawanawa (threatened to give her a hard time).
The president’s
decision to appoint an independent committee – as a way out of an increasingly
embarrassing situation – would likely further complicate the constitutional
process related to the impeachment.
Article 107 (2)
of the Constitution sets out the procedure for the removal of judges.
“Every such
Judge shall hold office during good behaviour, and shall not be removed except
by an order of the President made after an address of Parliament supported by a
majority of the total number of Members of Parliament (including those not
present) has been presented to the President for such removal on the ground of
proved misbehaviour or incapacity.”
“Provided that
no resolution for the presentation of such an address shall be entertained by
the Speaker or placed on the Order Paper of Parliament, unless notice of such
resolution is signed by not less than one-third of the total number of Members
of Parliament and sets out full particulars of the alleged misbehaviour or
incapacity.”
It is not clear
whether the parliamentary process related to the impeachment would be suspended
until the independent committee reaches its decision. Should Parliament decide
to do it at the behest of the executive, that would question the much clamoured
supremacy of the legislature, which Speaker Chamal Rajapaksa cited when
announcing his decision to disregard the Supreme Court directives.
Should
Parliament proceed to debate the impeachment motion and vote to remove the
chief justice, it is not clear as to what the impact the president’s so called
‘independent committee’ would have on the procedure.
But, all above
possibilities are largely theoretical. We, the Sri Lankans, know that
Parliament, two thirds of which is
dominated by the ruling party, is a rubber stamp of the Executive. It would
servilely kowtow to the Executive, just like 116 MPs who signed the resolution even without seeing
it.
( The Writer, Editor of the Lakbima News, where this piece was originally appeared)
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