( December 8, 2012, Colombo, Sri Lanka Guardian) “I see the Resolution for the
Impeachment of the Chief Justice as being one giant step taken by the present
government to control the judiciary and/or bring it under its heel and/or
destroy its independence,” warned well known senior lawyer in Sri Lanka, Mr. S.L Gunasekara in his
letter to the President of the BASL.
Full text of the letter is
follows;
Mr. Wijayadasa Rajapakse PC,
President,
Bar Association of Sri Lanka,
153, Mihindu Mawatha,
Colombo 12.
Dear Wijayadasa,
Impeachment Of Chief Justice
As you are presumably aware, I am
not and was never an unqualified admirer of the Chief Justice. Indeed, I was one who publicly opposed her
appointment as a Judge of the Supreme Court way back in 1996 and expressed my
views forthrightly in a television `talk
show’ on TNL. At the same time I was
and continue to be a supporter of the present Government, not because I have
any illusions about it’s claims to perfection or competence etc but for the
simple reason that I cannot see a credible alternative thereto or any
persons/set of persons who is/are in any way suited to take over the reins of
power from Mahinda Rajapakse and his government. That is solely by way of introduction.
Despite the aforesaid I am deeply
concerned about the Resolution for the Impeachment of the Chief Justice which
is currently being inquired into by a purported Select Committee. My concern is
not for the CJ personally – I believe that if she has misconducted herself &/or behaved in a
manner unbecoming of the holder of her office she must go or be dismissed.
However I am very strongly of the view
that she must have a fair trial and given a fair opportunity if defending
herself. As things stand, I have no doubt that she will get neither because now the whole `impeachment process’
has become a political exercise with some despicable clowns who, to our
Country’s sorrow and shame, are MPs sinking so unbelievably low as to sign an
`impeachment resolution’ that contained no charges leaving it to the `managers’
of the `drama’ to insert what charges they like !!!
I see the Resolution for the
Impeachment of the Chief Justice as being one giant step taken by the present
government to control the judiciary and/or bring it under its heel and/or
destroy its independence. This fact was
firmly confirmed by a statement made by a coterie of ignorant ministers [two of whom were `purchased’ from the UNP in
the not too distant past] who held a press conference after the last
sitting of the purported Select Committee and are alleged to have said that the
judiciary should lay off and/or keep their hands off Parliament.
This to my mind is
nonsensical. The issue with regard to
judicial intervention in the impeachment process revolves round the question of
whether Standing Order 78A is or is not ultra
vires the Constitution. The Standing Orders of Parliament, it must be
remembered, do not constitute law. Had they constituted law the Courts would
have been powerless to intervene or pass any judgment with regard to the
Impeachment process. At the same time,
had the provisions contained in Standing Order 78A (which is the impugned Standing Order) been incorporated in a Bill
as a prelude to making such provisions a part of the law of the land, that Bill
would have had to be gazetted consequent to which the Bill for the introduction
of such law which would have to be submitted to the Supreme Court for a determination whether it needed to be passed
by a 2/3 majority or by a 2/3 majority and approved at a referendum.
Accordingly, any law providing for the procedure of trying a judge of a Superior
Court on a resolution for his/her Impeachment would be subject to judicial
review prior to enactment. Standing
Orders however, are essentially internal rules of Parliament governing its
debates and they do not have to be scrutinized by the Supreme Court prior to
their enactment.
Thus, the warning given by the
coterie of ministers to the judiciary to keep their hands off Parliament which
was uttered vis-à-vis the several
actions pending before the Supreme Court in respect of the vires of Standing Order 78A and hence the appointment of members of
the Select Committee was ominous. It
would mean for instance that Parliament would not tolerate any Court declaring
to be invalid, a Standing Order which, to take a hypothetical example, decreed
that any person who criticizes a Minister or the President should be subject to
a death penalty. This of course is an
extreme example but one cannot rule out the occurrence of such an extreme eventuality,
particularly in the present day.
These, I believe are matters of
which the Bar Association should educate the public. They should also educate the public about the
fact that if the Government succeeds in subduing the judiciary they would be at
the receiving end of a stooge judiciary when they are out of power. It would be stupid for them to presume that
they would remain in power for good. I
believe that is a delusion under which
several dictators laboured till they were thrown out.
I have seen a barrage of
criticism about the stance taken by the Bar Association in respect of this
matter where many have felt that the Bar Association has not taken sufficient
meaningful steps to oppose the Impeachment.
I tend to agree with them.
I do not, for a moment mean that
the Bar Association should organize strikes or noisy demonstrations such as
those staged by some exhibitionists of the Bar by congregating, around the car
of the Chief Justice when she was going to Parliament and returning therefrom
or that the Bar Association should organize the members of legal profession to
engage in such childish acts as breaking coconuts which as we all know brings
no results. Even at the risk of sounding
presumptuous. I suggest that the Bar Association takes some
meaningful steps to oppose this madness of the incumbent government.
My suggestion is that the Bar
Association adopts a resolution and/or makes a public pronouncement that it
requests all its members to refrain from accepting appointment as
Chief Justice in the event of the incumbent Chief Justice being impeached. Similarly I believe that the Bar Association
should call upon all others who are not
members of the Bar Association also to decline to accept that post if it
was offered to any of them; and also that the
Bar Association should call upon all its members and others to boycott and
boycott completely, both socially and professionally, any person whoever
it may be who accepts appointment as Chief Justice in the event of the
Impeachment of the incumbent Chief Justice being effected. Such boycott should in my considered view go
to the extent of refusing sit with such new Chief Justice (if any) on the Bench of the Supreme Court [if a Judge], or to appear before such new Chief Justice (if any) as the case may be. [if an Attorney-at-Law].
I realize that adopting such a
course of action would be fraught with
danger, particularly to the person who proposes it and those who take the
lead in executing it. However, such
dangers are as nothing when compared to the dangers to the entire populace of
living with a `stooge judiciary’ and hardly anything worthwhile can be achieved without some measure of
sacrifice. While devices like instituting actions and organizing/sponsoring
demonstrations will only bring publicity, I cannot see them being effective.
Indeed such demonstrations could result in counter demonstrations [such as that which we witnessed today -28.11.12]
which could only result in the
further demeaning of the judiciary and/or the position it holds and/or should
hold in the minds of the People.
Having regard to the importance
of this matter I wish to copy this letter to all members of the Executive
Committee but I have been unable to do so because I am unaware of their names
and addresses. Accordingly, I shall be
grateful if you would kindly instruct the office of the BASL to furnish copies
hereof to every member of the Executive Committee or to send me urgently, the
names and addresses of every member of the Executive Committee so that I may
send copies thereof to them.
Thanking you.
Yours sincerely,
 “I see the Resolution for the Impeachment of the Chief Justice as being one giant step...){kind=link}