There is the Constitution of the Democratic Socialist Republic of Sri Lanka prepared by a UNP President in 1978. He was very authoritarian and used his executive powers to the full. He believed America was his friend until he became aware of the hypocrisy of America when he was dropped like a hot brick when he needed America most.
However the Constitution of Sri Lanka is now a legal document containing XXIV Chapters and 172 Articles. It defines the Executive , the legislature and the Judiciary. Article 107 is on “Appointment and removal of Judges of the Supreme Court and Court of Appeal”
The procedure set out in Article 107 of the Constitution is as follows:
“(2) 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 misbehavior 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.”
Hence Impeachment Motion presented to the speaker of the Parliament is according to the Constitution and is not arbitrary or totalitarian. It is a democratic procedure according to the Constitution of Sri Lanka. A PSC has been appointed to inquire into the charges and it is therefore up to the PSC to decide on the matter. Hence any body making statements against the Impeachment motion against CJ is ill informed and only making an issue of it to discredit the Government.
Though the Executive, Legislature and Judiciary are separate institutions, and the Judiciary stands independent of the rest does not mean that the Judiciary could act to limit the power of the Executive or the Legislature. Judiciary has to take independent decisions but such decisions should not be a barrier for the legislature or the executive to take decisions for the development of the country or the welfare of its people and the country. Judiciary as an Independent Institution within the Constitution of Sri Lanka, cannot stop a Parliamentary bill but it interprets and point out its defects and advises a revision.
A former U.S. Supreme Court Justice Sandra Day O’Connor had said: “The concept of the framers of our Constitution in creating three branches of government, when they came to the judiciary, they wanted it independent of the other two branches, so that it could do its job to fairly and freely interpret the laws [of the] Constitution …”
But it has also been argued that “…. in addition to independence, the Framers believed in another virtue as well – the virtue of accountability. As James Madison wrote in Federalist 39, the “persons administering” our government must “be appointed, either directly or indirectly, by the people….Even the judges [under the Constitution] be the choice, though a remote choice, of the people themselves.” This is why Justice O’Connor was appointed by a president who was elected directly by the people and confirmed by senators also directly accountable to the people.
“Independence does not mean a lack of oversight and accountability; judges can be disciplined for serious misconduct on or off the bench. All states have some sort of commission to investigate complaints about judicial behavior. The commissions can recommend removal from office, public or private reprimand, censure and suspension, as well as involuntary retirement. State judges may also face impeachment or recall (where judges are elected.) Federal judges are also impeachable. It is important that people know what judges do.” (lwvnoc.org)
However the Judiciary cannot be a law unto itself. It has to be independent but it has to help the government carry on with its political manifesto with which it has come to power. It can therefore interpret the law within the accepted rule of law for the betterment of the people.
Sri Lanka after three decades of terrorism has an uphill task of reconciling the Communities and create an environment of peace and trust to set right a dislocated society to take it forward to progress and development. The Government, and the Armed Forces with its redefined role as a partner in development have done a wonderful job of work that no other government any where in the world has done coordinating with its Armed Forces. The Armed Forces of Sri Lanka are not synonymous with destruction but with construction. They destroyed evil to bring back peace and goodwill.
In USA the Soldiers who retuned from Vietnam, Iraq and Afghanistan were psychologically wounded.
“….. a very large number of veterans haven’t made it all the way home from the war in Southeast Asia. By conservative estimates, at least half a million Vietnam veterans still lead lives plagued by serious, war-related readjustment problems. Such problems crop up in a number of ways, varying from veteran to veteran. Flashbacks to combat… feelings of alienation or anger… depression, loneliness and an inability to get close to others… sometimes drug or alcohol problems… perhaps even suicidal feelings.” (suicidewall.com)
Those returning from Iraq, and Afghanistan came with invisible wounds of war such as post traumatic syndrome. “Most of those troops also came home with traumatic brain injuries and post-traumatic stress disorder, which in many cases were not recognized for months.” (The New York Times)
Thanks to the Sri Lanka Defence Secretary Mr. Gotabhaya Rajapakse our soldiers were able to psychologically redress themselves and adopt to the progressive climate of development.
This deviation from the topic is to point out the necessity for every one, every institution, agencies , including the Judiciary have to adopt themselves to the situation we find ourselves after the thirty years of suffering under terrorism.
Therefore the Legislature, Executive, the Judiciary, the University Professors, the Sri Lanka Media, the Opposition, the Marxists, the conservatives and the members of the respective communities etc have also a duty to adopt themselves to the need of the day for the development of the country , bringing the Communities together to put right the wrongs of the past.
The Impeachment Motion against the CJ, is just an impeachment Motion and nothing else and we have to let the procedure continue without making unnecessary criticism. The Judiciary is independent but the Legislature is supreme. Judiciary cannot instruct the legislature how to function, though it may interpret the laws and advise the legislature on the correct procedure. But the legislature may accept it and make amendments or not accept it.
Because certain parities are against the government they cannot say that the democratic process put in motion by the Government is a, "…. misuse of disciplinary proceedings as a reprisals mechanism against independent judges …..." because an Impeachment Motion in terms of the Constitution has been prepared and present to the Speaker of the Parliament. There is now a PSC in place inquiring into the Impeachment Motion, and it is up to that Committee to take a decision.
Amal Jayasinghe of the AFP reported, “Rights groups have said the impeachment is the latest sign of efforts by President Mahinda Rajapakse to tighten his grip on power after crushing the Tamil Tiger separatist rebels in 2009 at the end of a decades-long war.”
This is just twisted reporting to fit into an Agenda. It was reported today by BBC that the Egyptian President Mohamed Morsi has taken over the Judiciary putting himself above the Law. President Mahinda Rajapajkse would be the last to do that, as he did not taint his Office, as President JR Jayawardhana of the UNP, by using his executive powers. President Mahinda Rajapakse is also a Lawyer who had practiced law and he knows the importance of the Independence of the Judiciary.
He would not do that to avoid criticism of the International Community, but because he is more sincere and democratic. He has demonstrated so on many occasion and had not precipitated into action without evaluating a situation, when all around may have wanted him to react. One instance is the TNA “jokers” who leaving aside their Parliamentary responsibilities go round visiting other countries requesting their intervention on the ethnic problem they continue to perpetuate with vehemence.
In the mean time the Bar Association of Sri Lanka which should normally be well informed of the legal mechanisms has requested the speaker to reconsider the Impeachment Motion knowing very well it is now out of the Speaker’s hand.
Former President Chandrika Kumaratunga too has spoken out, as it is a must for her to oppose what ever decisions taken by the President Mahinda Rajapaksa. She forgets that Sri Lanka is far away from what it had been during her term office. Even she has to be more cautious about criticising the government which has been doing things far better than the government under her leadership.
Chandrika Kumaratunga writing to the Colombo Telegraph says, “A Member of Parliament who submitted the motion to the Speaker has publicly stated that the reason for the impeachment motion is the Supreme Court’s determination on the Divineguma Bill . As that Bill seeks to make severe inroads into the areas of competence of Provincial Councils while concentrating power in the hands of a single Cabinet Minister, such a determination was only to be expected. But, in the intolerant political environment that pertains today, judicial decision unpalatable to the Government are not tolerated.”
If the Impeachment Motion has something to do with the Divineguma Bill, there is reason to believe that CJ was trying to usurp the Parliamentary Procedure, and resort to a delaying tactic for whatever reason with out taking a positive or a negative decision. This judicial lethargy would only delay the implementation of the Bill, which is damaging to the country as progressive Bills should take priority without leaving room for critics and interferes to intervene to hamper the progressive development of the country. But this is not directly or indirectly raised in the Impeachment Motion, therefore it is only to divert the attention from the actual Charges under investigation.
However, Ground View in an article adds as an Editors Note, “The Supreme Court ruling on the Divineguma Bill presented to Parliament just before this article was published noted that the Bill has to be passed with 2/3rd majority in Parliament and that Clause 8 has to be approved at a referendum.”
It seems there are unknown hands to stop the Divineguma Bill taking effect, if not at all at least for some time.
The Daily Mirror in an article To thine own self be true, writes ,” The Government is resorting to the impeachment of the Chief Justice, whose appointment was signed and approved by the head of the same regime. To facilitate this process, the Government had sought and collected 117 signatures from the members of Parliament, for this motion to be handed to the Speaker, so that the death knell could be expedited against the last bastion that protects democracy and the fundamental rights of the people.
Can one understand how an Impeachment Motion could be the death knell of Democracy ?
The UNP Media Spokesman Gayantha Jayatilleke, MP had said, “The whole world knew what the real reason for presenting an impeachment motion against the Chief Justice was. She was being targeted due to her constitutionally correct order that the Divineguma Bill had to be approved by all the Provincial Councils before the Supreme Court could rule on its validity, the MP said.”
Doesn’t he exaggerate when he says that the whole world knew the real reason for presenting the Impeachment Motion ? The Divineguma Bill may have been the cause but the result is the availability of evidence to bring 14 charges for an Impeachment Motion. The Motion does not site the Supreme court decision as a Charge.
In an article in the Financial Times of London reproduced in the Indian Express by Venket Narayan states , “ …………, many observers say Mr Rajapaksa is moving in the other direction, with fresh threats to judicial independence and recent moves to centralise yet more power in the hands of his family, notably his brothers Gotabhaya and Basil, who control the army and economic development, respectively. The highly-regarded newspaper quoted one unidentified western fund manager as saying: "Sri Lanka has lots of potential, but only if the megalomaniac tendencies of the President and his brothers can be brought under control;”
We see which way the diabolic Western Media goes. They have not hesitated to bring in the President and his family into the fore as at a drop of a coin-rallying around the Impeachment Motion to bash Sri Lanka.
The reason of undue concern of the West about what ever is taking place in Sri Lanka boils down to the following extracts taken from the same article referred to above: “According to the newspaper, concerns in western capitals have focused on Sri Lanka’s new ports, which some defence analysts think could form part of a series of military bases and other Chinese-backed projects around the Indian Ocean known as the "string of pearls."
The daily wrote: "Such developments worry India too, which frets about any Chinese presence close to its borders and about domestic political pressure from its 61 million Tamil citizens seeking action to help their fellow Tamils to the south."
They have nothing to do with the Impeachment Motion except to make it an occasion to bash Sri Lanka, but their main concern is China’s influence in Sri Lanka.
In addition the USA not wanting to be left out in the imbroglio has issued a Statement, through its State department spokesperson Victoria Nuland, “..in a statement referring to the impending impeachment of Sri Lanka's Chief Justice Shirani Bandaranayake on Friday, was in fact expressing its concern that this South Asian nation's administration is on its way of making the nation's judiciary a captive branch.
In saying "We urge the Government of Sri Lanka to avoid any action that would impede the efficacy and independence of Sri Lanka’s judiciary", the State Department is concerned that the measures taken by the Sri Lanka government erodes or removes the effectiveness of the nation's judiciary. “
This is from a country which even impeached its own President.
She adds: "The United States, along with our partners in the international community, continues to urge Sri Lanka to address outstanding issues of the rule of law, democratic governance, accountability and reconciliation."
At the moment America is in a bit of a “hell hole” , with the economy not redressing, poverty line increasing, people affected by natural disasters still not attended to, and continued war in Iraq, Afghanistan and Pakistan not seeing a quick end with more and more civilians being killed, Syrian war likely to turn into another Libya, continuing embargoes in Cuba etc. But yet they are poking their nose into the affairs of Sri Lanka where in reality they have nothing to do.
These multiple attacks on the government of Sri Lanka goes on inside Sri Lanka with the Opposition political parties, and outside with the International Community and their stooges.
But all the fuss about an Impeachment Motion against the CJ is not necessary as the Motion has been placed before a PSC for investigation. If the charges against the CJ are not proved the Impeachment Motion will be declared void, if proved her services will be terminated. Therefore there is nothing for any one to worry about and make uncalled for allegations against the President or the Government of Sri Lanka for a simple democratic procedure by the elected representatives of the people in the Parliament.