| by Manik De
Silva
( December 16,
2012, Colombo, Sri Lanka Guardian) The ongoing attempt to impeach Chief Justice
Shirani Bandaranayake continues to hog the national limelight and is the
subject of learned debate and conversations in the drawing rooms of the elite
and the tea boutiques patronized by ordinary people. President Mahinda
Rajapaksa, with his much publicized remark made a few days ago that that he
intends to have the whole matter looked at by an independent committee, implied
that the finding of the Parliamentary Select Committee and the UPFA’s steamroller
majority in Parliament was not the last word on the matter. However, he was
clearly not willing to be drawn into the subject of this committee when he met
newspaper editors and media heads on Thursday morning, fending off a question
on this matter by saying that he’s still not got the report. But the president
was obviously prepared to face a barrage of questions on the impeachment
judging by the fact that he had most of the members of the PSC on hand when he
met the press. He, in fact, encouraged them to respond to questions and express
their opinions and Messrs. Anura Priyadharshana Yapa, Susil Premajayanth, Dilan
Perera and Wimal Weerawansa had quite a lot to say. The president did not in
any way show that he disagreed with the PSC in possibly seeking other opinion -
quite the contrary.
As our front
page indicates today, Mr. K.N. Choksy, PC, has now raised a further conundrum
on the subject in a statement issued on Friday. It is useful that a lawyer of
his eminence, now living in retirement, chose to raise this topical matter at
the present moment. Once President Premadasa’s trusted counsel, Choksy has
served UNP governments as a senior minister responsible for subjects like
justice, constitutional affairs and lastly finance. He is clearly of the view that
in the event the so-called independent committee adopts a view different to
that of the PSC, the view of Parliament – that is that of the PSC and the
majority of MPs – must prevail. Formulating the matter at issue briefly and
succinctly, Choksy posed the question: Whose view prevails? That of Parliament
or the President? His answer is unambiguous. ``My considered view is that the
opinion of Parliament prevails and takes precedence,’’ he has said. He has gone
on to explain why, saying that both Parliament and the President are elected
representatives of the people.
``Upon a
consideration of Article 107, my opinion is that the decision of Parliament
will be given effect to. I state so because Parliament represents the
collective will of the people. Furthermore, Article 107(2) stipulates that the
Address of Parliament to the President must be supported by the majority of the
total number of Members of Parliament. This would be 113 Members, who voice the
view of the people whose representatives they are.’’
This opinion, if
accepted, would obviate the need for the appointment of the ``independent
committee’’ in the event the president does receive the address to remove the
Chief Justice. What is said there is that the president’s hands are tied and
there is nothing more he can do about the matter. He can, of course, ensure
that the necessary majority is denied by Parliament. But only the totally naïve
would believe that this whose exercise was without the president’s blessing and
if there is to be any back pedaling, it is the president who must do so. Given
the way that the system works since the executive presidency was foisted on
this country by the J.R. Jayewardene Constitution of 1978, everything flows
from the top. It would be generally accepted that even when letting then Chief
Justice Neville Samarakoon off the hook with a stricture, the then president’s
nod would have been obtained. After all that PSC sat for several months until
Samarakoon reached his age of retirement. That select committee did not conclude
its sittings at breakneck speed like this one has. The extensions that
Parliament granted that body to complete its work also enabled tempers to cool;
and Samarakoon, who had demonstrated a sturdy sense of independence and
integrity on the bench, was eventually allowed to retire and emigrate. He did
so with dignity, saying nothing about the ordeal he had to suffer and held his
peace for evermore. Not so at least one of his successors who is ever willing
to freely express his opinions on controversial matters.
No doubt the
president will refer the independent committee matter to the Attorney General
who is the principal Law Officer of the State if he is serious about taking
such a step. Despite the protests building up both domestically and externally,
the government at least at present appears intent on pressing this matter to
the bitter end. Everything that has been said on this subject up to now,
including at the president’s meeting with editors last week and the stridency
of the state media, points in that direction. Minister Yapa insisted that the
CJ had been treated courteously at the PSC although her lawyers have written to
the speaker quoting some words allegedly used. Yapa said the proceedings were
taped and a verbatim record is part of the report. Editing is of course always
possible and public are well aware that not everything said in the
parliamentary chamber appears in Hansard. One former secretary general of the
assembly once said that Hansard is ``the clerk’s minute of proceedings’’ and not
necessarily a verbatim record as commonly believed. Eventually the whole
business of any pissu geni references will be one person’s word against that of
another.
It is
unfortunate that given the fact that all the charges that were made were
published, they were not all examined. The PSC’s rationale was that three of
the charges on which it had determined guilt were sufficiently grave
(presumably warranting impeachment), it was not necessary to go into all the
charges laid at the CJ’s door. That position also suggests the desire to finish
off the inquiry quickly, something which was borne out by the speed with which
the report was written. Not everything said at the president’s meeting with the
press was correct. One example is the statement that only Mr. Nadesan was
permitted to represent CJ Samarakoon at the previous PSC. Other lawyers were
present there, those familiar with the matter have told us. To our minds the
most serious among the charges appears to be that the CJ, acting for her sister
in the purchase of a residential unit from a Ceylinco Group company or
associate, had chosen to preside over a Golden Key case in the Supreme Court.
Hopefully, all that is material in this matter will be quickly laid in the
public domain so that the people can make up their minds on whether or not
there was any conflict of interest.
( The Writer,
Editor of the Sunday Island, where this piece was originally appeared)
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