| by Basil Fernando
( December 30, 2012, Hong Kong, Sri Lanka Guardian) In
a morning programme on SLBC today (29th December) Minister Rajitha Senaratne
was interviewed. Here are some of the basic points from what he stated in this
interview:
That the independence of the judiciary recognized
within the 1978 constitution is only for the purpose of hearing cases; citing
articles of the constitution, he took time to explain that the only
independence that this constitution recognizes is for hearing cases, where no
one can interfere with the powers of the judges to hear and determine cases.
Besides that, there is no other independence. The implication of the statement
was that universally recognized principles relating to the independence of the
judiciary, which include, among other things, that the removal of judges should
be done only on the rarest grounds and that it should only be after fair
inquiry by competent tribunal, are not recognized by Sri Lankan constitution.
This way the objections that have been raised locally and internationally -
that the hearing by the PSC did not amount to inquiry by free and fair tribunal
- was made out to be irrelevant in terms of the 1978 constitution. This also
implies that judges have no right to interpret the constitution.
That those who did not raise objections to the
standing orders under section 107(3) have no right to raise those objections now;
he said that there were 28 years to raise these objections, and if they failed
to raise those objections then, they have no right to raise them now.
That, according to the provisions of the constitution,
the president controls all the matters relating to judges and that therefore
the president also has the power over the dismissal of judges. This is similar
to the position earlier taken up by Dr. Nath Amarakoon, that the Chief Justice
is an employee of executive and therefore should behave accordingly.
That what is important is not the process but the
substance of the charges. He then went on to demonstrate how gravely wrong the
issues in terms of substance are. Going into process without talking about
substantive issues was described as not entering into the field but talking
about it from outside. According to this argument, if a man is charged with a
gruesome murder, nobody is should be talking about providing a fair trial for
such a person as the substance of what he has done is gravely wrong. Also implied
is that there is no presumption of innocence when you are charged on matters
that are grave.
That, according to the constitution, the parliament
has all the powers and once the parliament decides on any matter there is no
right for court to issue writs or summons to members of parliament regarding
such matters. That, he said, is the tradition in England.
That the opposition to the impeachment arose due to
the people being unprepared when the impeachment motion was filed. As the
people were ignorant of the charges, they were surprised. He has in fact told
the president that all these problems arose due to people not being aware of
the charges beforehand. Had they been given the time of one month before filing
the motion for impeachment, none of these problems would have arisen.
As these matters mentioned above are so important,
this broadcast will be aired again in the afternoon, said the chairman of the
Sri Lanka Broadcasting Corporation, who was the moderator of the programme.
By way of comment, it may be said that the government
is now very clearly indicating that it will not recognize any independence of
the judiciary other than the right of judges to hear and determine cases. In
essence, this is a complete rejection of the recognition that the judiciary is
an independence branch of government. The argument is that the concept of the
separation of powers as recognized within a democracy is not what is found in
the 1978 constitution.
A similar view was expressed in the English
counterpart of this programme, under the inappropriate title ‘Peoples Power’,
which also stated that the issue of process is irrelevant as everything was
done according to the book, meaning the 1978 constitution. What is blatantly
expressed is that the ‘democracy’ in Sri Lanka is a very unique one as defined
by 1978 constitution and it should not be criticized on the basis of other
principles that are recognized in other democratic countries. This also implies
that even the right to a fair trial is not a substantive part of Sri Lankan
law.
In my previous article, “Why People Oppose The
Undermining Of The Judiciary”, I mentioned how Cambodians used to do things by
their book and how in Myanmar the book that Ne Win gave was followed. Now, the
constitutional tomfoolery that JR Jayawardene did with the Sri Lankan
constitution has become Sri Lanka’s book. The government’s argument is that, if
this book was okay for the last 28 years, it is also okay for the future.
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