Thursday, 8 November 2012

Impeachment of a Chief Justice.

There is an avalanche of articles, reports , editorials  by those who have been scandalised by the Government’s decision to impeach  the Chief Justice.  

Harim Pieries writes in the Island  of 8 November,2012 as follows: “….However, the Rajapaksa regime should well consider that its track record and practice of fighting with friends and falling out with those in the higher echelons of the state structure is not conducive to either good governance or the long term political interests of the Administration itself…..”

The Island news paper puts  the Army Commander and Chief Justice on the same footing. and  writes in its Editorial: “……They are striving to do to her what they did to Gen. Sarath Fonseka, whom they once called the best army commander in the world but unflinchingly vilified as a traitor when his presidential ambitions became known and he fell from grace…...”

Elmore Perera Attorney at Law writes: ….I well remember the hue and cry made by many lawyers when she was appointed to the Supreme Court, in 1997. By then I was already disillusioned  by the arrogant attitude displayed by many Judges when dealing with litigants and their counsel. ……... She has since displayed an exemplary judicial temperament and I have never seen or even heard of reports of her being deliberately rude or unfair. She has now reached the pinnacle of the judicial branch of the state…..”

Gomin Dayasiri Says, “….Justices are presumed to maintain higher standards in propriety since they hold the legal scales to distinguish the good from the bad…..”.

And the Association of  High Court Judges  and others say , “Civil society must gear itself to ensuring that justice is done to their Chief Justice. If justice is denied to her, Sri Lanka is in for turbulent times leading to anarchy. We can no longer go about our own business expecting that someone else will be the target.”

Karu Jayasuriya dissappointed UNP MP , told the media that, “.. the government has posed a great threat to judicial independence and there won't be democracy in the absence of an independent judiciary….”.

With regard to the matters relating to Tax evasion and other irregularities included in the impeachment motion against the CJ had not obviously been known to the President when Shirani Bandaranaike was appointed to the High Position. There is no screening  for  a CJ because normally one is selected from among the Judicial luminaries spotlessly clean and without reproach.

Therefore  the President cannot now be found fault  with for her appointment.  Gomin Dayasiri a prominent lawyer  himself admits she was a good judge.  She may not have known  that her husband’s activities would have led him to be accused for bribery and corruption, in which case there was no  conflict of interest  for   Shirani Bandaranaike to continuing as the CJ. 

But when charges of bribery and corruption was made against her husband  she should have resigned from her high position as the CJ to  avoid a conflict of interest.

Unfortunately in Sri Lanka which is coming up from a developing country status to be an Upper Middle Income Country, there are many  anti Sri Lanka forces all out to push it down the precipice to where it had been before. In that effort everything is seen in a negative light by the local opposition and the foreign enemies of the Nation. One cannot understand why everybody should not put their  shoulders to the wheels to push forward the country towards development and progress without each one hanging on watching for  political fall outs for their benefit without thinking of the country and the people at large;

Elimination of a ruthless terrorism has received no applause but rampant accusations for violation of human rights, war crimes, disappearances . The assassination  and disappearances of journalists have led Sri Lanka  to be  called a nation without press freedom. The  pushing  forward with progressive laws to make Sri Lanka a  poverty free developed nation has brought accusation of  interfering into the independence of judiciary.  When the remaining last batch of IDPs from  more than3000000 were finally settled and Menik Farm was closed  the International Community questioned why was that haste to close the Menik Farm, while the local opposition accused that the last batch of IDPs   said to have been settled down were  sleeping in the forest and under trees.

Now,  when a Judge has been impeached they howl as it is something that has been invented by the President Rajapakse and his family to  take revenge from the CJ for not making a favourable judicial decision  on  a Bill that was really not meant for the welfare of the Rajapakse family but to ameliorate the  living condition of the people and eliminate as far as possible poverty in Sri Lanka. 

Impeachments of judges are not undemocratic and it is not the  first time that it has happened  in Sri Lanka nor is it without precedents in other foreign governments .  Hence it is difficult to understand the wrath from many quarters locally and  from abroad. Most of those complaining that the Government is acting  unconstitutionally assume the  cause to be the President Rajapakse Government and Rajapakse Family.

In USA beginning from 10 May; 1796 when Judge George Turner was impeached  for bribery  and levy of fines  without trial , seventy one cases of impeachment are  sited in Wikipedia, until the last Judge Samuel Kent  was impeached on 11 May, 2009 for sexual abuse. “ In Great Britain conviction on an impeachment has resulted in fine and imprisonment, and even in execution, whereas in the United States the penalties extend no further than removal and disqualification from office.”

Therefore an Impeachment is normal procedure when a Judge appears to have  contravened the law. The fact that the CJ was appointed by the same government that impeaches  the CJ is an irrelevant argument . In any case the charges have to be proved for the impeachment to take effect.

When will the Sri Lankans rise above political prejudices to understand that actions progressive and beneficial  to the country should be taken even if they seem unpalatable to those who sees an opening to make it an occasion  to make political mileage from it.

When Divineguma Bill  proposed  by the government shows an underlying effort  of interest for the development of the  country one has to defend it,  without accusing others who defend such effort  are  motivated by political or personal reasons.  It is only the educated intelligentsia that is prepared to manifest and demonstrate against the Government for personal reasons than for the benefit of the people and the Country.  A good example is  FUTA that went on strike for three months and profited in collecting money  from even the Mercantile Union of Bala Tampoe  now preparing for another strike on flimsy grounds as they have to do some thing to justify their collecting funds from anti Government forces.

JVP which has lost all its political honesty, and lost its support from the people are trying to hang on to  any straw,  even the Impeachment Motion to avoid sinking into a political morass.  So is UNP which has nominated two vociferous UNP MPS who do not know what they are talking most of the time to the PSC.

The Colombo Telegraph reports that:
“An interesting constitutional issue has arisen consequent to the determination of the Supreme Court in the matter of the Divineguma Bill. The Supreme Court has ruled that as the Northern Provincial Council has not been constituted, it was not possible for the Bill to have been sent to the Northern Provincial Council for the expression of its views. However, the Court has also ruled that the Governor of the Northern Province could not have expressed a view on behalf of the Northern Provincial Council. As such, the Court has determined that the Bill must be proceeded with on the basis that the Northern Provincial Council has not agreed to the passing of the Bill.” 

But the Article 154G((3) of the constitution does not  bar the Supreme Court taking a judicial decision in favour of the said Bill  as it  had been accepted by eight of the nine Provincial Councils. In the North there is no Provincial Council as there had been no elections, but the Administration in the North is nevertheless functioning until the establishment of a Provincial Council with a Governor having the authority for the Administration  of the North.  Therefore the Governor’s Signature is legally accepted for any matter  which would have come under a Provincial Council if one was there.

If the SC refuses to accept the signature of the Governor it means all acts, letters, and documents signed by the Governor in the North PC are ultra vires.  This cannot be so as the Governor has  been given the authority by the Government to act  taking responsibility for the Administration of the North until   a Provincial Council in the North is established.

 If  Administration has to be stopped in the North for want of a PC then every thing would be chaotic.  Therefore a democratic method has to be found to allow Northern Administration to function so that  the people in the North are  given the same rights and benefits as the people of the rest of the  country under  Provincial Councils.  The democratic method is empowering a Governor to Administer the North in the absence of a PC.

In the above report of the Colombo Telegraph, if we were to accept it as a correct, interpretation, there is a contradiction in its last sentence.The last sentence reads: “As such, the Court has determined that the Bill must be proceeded with on the basis that the Northern Provincial Council has not agreed to the passing of the Bill.”

 In stating that ” the Bill must be proceeded with on the basis that the Northern Provincial Council has not agreed to the passing of the Bill”, the Supreme Court presumes the existence of the Northern Provincial Council.
If so why the negative presumption ? Why not ” proceed on the basis that the Northern Provincial Council has agreed to the passing of the Bill.” ?

Hence, the SC decision on the matter seems incorrect  as she did not accept the authority of the Governor over the North Provincial Council Area, denying the people of the whole of Sri Lanka the benefits to be accrued from the Divineguma Bill.

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