Al Jazeera reported: “The country's highest court holds exclusive jurisdiction on interpreting the constitution. Should the Court rule that the PSC process violates the constitution, the entire impeachment process will be rendered null and void – but if parliament insists on its supremacy – a constitutional crisis is inevitable.
But concern is building. Today members of civil society, representatives of the clergy, senior opposition figures took to Colombo's streets to protest the impeachment.”
The NGOs and the International Community are expecting a show down. They are worried that it is not happening the way it happened in Libya, Cairo, Tunisia and Syria. The undercover Agents of the CID, NATO (and perhaps RAW ) and all the rest of them that have experience with the NATO’s Arab Spring, must be “doing overtime” waiting gleefully to jump into the scene to reduce to rubble all that the Government of Sri Lanka had painfully built during the last three or four years to take the country forward to progress, peace and happiness.
A leading Sri Lanka Lawyer S.L.Gunasekara too has jumped into the anti-Impeachment band wagon and is being introduced by probably a NGO- Mike Andree of the Island, to whom the BASL had provided a copy of S.L.Gunasekara’s letter. No wonder the Sri Lanka Media seem to have been bought over by the Western anti Sri Lanka big wigs.
Gunasekara’s entry into the fray is heartening for the “regime change” elements as he had originally opposed the appointment of Shirani Bandaranayaka as the Chief Justice. He is now all out to support the CJ and bring the government to a halt without allowing the Government to appoint another Chief Justice to head the Judiciary. I have a hunch that Gunasekara’s turn over is possibly because he knows who is likely to be the next CJ. His demands are extraordinary.
This is what he suggest: "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 ………. 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.”
His vengeance seems to be extreme. What has the Rajapakse Government denied to him? But in order to avoid the possibility of such a question he says at the beginning of his letter to the BASL to mollify the effect of his above suggestion :
“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.” Gunasekara had said that to another person some time ago who sought his advise on a Fundamental Rights Action he wanted to file. Gunasekara had told him in addition to what he had said in his letter to BASL, that it is useless filing a FA case as the supreme court judges cannot be trusted to take an independent decision. There he may be correct as it is known that most of the Supreme Court Judges in Sri Lanka are Muslims and Tamils.
In a recent FA case a judge of the Supreme Court (who it seems is a Muslim with a Sinhala name ) had refused to entertain a Fundamental Rights case despite it being on the breach of provisions under an Article in the Constitution . But had instead given the plaintiff a rapping for being narrow minded, and unable to live in a multiethnic country without hurting others.
That is not how justice should be met in a Supreme Court. Such a Supreme Court Judge is fit only to be a Mediator or an Ombudsman. If this manner of judicial decisions were to continue the citizens will have no access to legal remedies against those miscreants who are belligerent separatists, determined to discourage reconciliation and divide Sri Lanka .
However, coming back to S.L.Gunasekara’s strange proposal to the BASL, one cannot help wondering why this strange suggestion. It may be that if no one is prepared to accept the appointment of Chief Justice the field may be open to some one who thinks the President Mahinda Rajapakse cannot be replaced by any one else in the near future ! That appears to be a logical assumption in view of the fact that the suggestion has been made by none other than a leading luminary of the legal profession. It is rarely that one comes across a lawyer who would stand on principles. They are like flags hoisted on poles. They flutter which ever way the wind blows.
Mr. Gunasekara says he is much concerned with the Resolution for the Impeachment of the Chief Justice. His concern is not with the CJ personally, but he says he is very strongly of the view that she must have a fair trial and given a fair opportunity of defending herself.
Then he says “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!!! “ Those are very strong word , unfair and crude to come from “a leading lawyer” of Sri Lanka.
“ The lawyers are expected not only to know the law, but also to know where to find the law .” That was what late Lord Russell once said to the Law students of the Honourable Lincoln’s Inn on their passing out as Barristers at Law. Therefore, if Mr. Gunasekara had spent some time looking for the law, he would not have made the above statement
Impeachment is not an exercise of the Judiciary but of the Legislature therefore it is of course a political exercise rather than a legal exercise. The “ despicable clowns to our countries sorrow and shame are MPs” is the language in which our leading Lawyer S.L.Gunasekara defines the MPs. These 117 MPs who signed the Impeachment Motion on whom Mr. Gunasekara spewed so much of venom are persons elected by the people of Sri Lanka to represent them in the Parliament.
Therefore in insulting the MPs Mr. Gunasekara also insults the very people who elected them. It is immaterial whether a man comes from high society, from a noble profession such as that of a lawyer, or from a mud hut in a village, once he is elected by the people to represent them in the Parliament he has to be respected without condemning him for his origin. That is what the Leading Lawyer Mr. S.L.Gunasekara did in making that “dishonourable” statement to please perhaps the NGO who requested him to give his opinion on the Impeachment.
In a Dhammapada verse it is said that, “ a man is not a Brahman by birth but from his acts alone is he a Brahman.
Impeachment Mr. S.L.Gunasekara is described as “ analogous to an indictment in regular court proceedings, while trial by the other house is analogous to the trial before judge in regular courts. Typically, the lower house of the legislature will impeach the official and the upper house will conduct the trial.” (Wikipedia). That is a typical Impeachment in America which we closely follow. In that sense an Impeachment proceeding in Sri Lanka the Parliamentary Special Committee performs what is analogous to a regular court proceeding and the debate of the report of the PSC in the Parliament is analogous to a trial before judge and jury in regular court.
Very strangely again Mr.S.L.Gunasekara says that the Impeachment motion did not contain charges, “…leaving it to the `managers’ of the `drama’ to insert what charges they like!!! ” ( he means by Managers the PSC) . No Gunasekara , it was the PSC that received the evidence. It was they who examined the relevant Bank Statements, documents and evidence etc; to ascertain facts about the financial transaction, and found certain irregularities.
S.L.Gunasekara says that he sees the Impeachment as “….one giant step taken by the present government to control the judiciary and/or bring it under its heel and/or destroy its independence….”
Impeachment is not a means to control the Judiciary, because “Impeachment” is only a word used to describe the procedure adopted to indict “a Chief Justice” who had committed an offence or the President. It is not necessary to explain it in detail to the Leading Lawyer of Sri Lanka as he know the ramification of the law.
Lawyers are known to deliberately confuse and baffle a plaintiff or an accused as the case may be in cross examining them. Similarly Mr. S.L.Gunasekary complicates the simple Impeachment Motion by bringing in the Parliamentary Standing Orders. He states while speaking of the Parliamentary standing orders that , “ it is relevant 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.”
But an Impeachment Motion does not fall under the Parliamentary Standing orders, nor it is necessary for the Legislature to obtain the sanction of the Judiciary, or obtain a judicial review of it. Gunasekara is merely complicating the issue.
The Impeachment Motion was under the provision of the Article 107.2 of the Constitution of Sri Lanka. His argument is therefore irrelevant. The Supreme Court issued instruction to the Speaker to postpone the hearing of the Impeachment Motion. But the Supreme Court has no right to intervene to stop the Legislature from carrying out an exercise within its ambit. On this, the arguments presented in the Impeachment of the Chief Justice of Philippines Renato Corona appears relevant:
“Defendants challenged the use of these committees, claiming them to be a violation of their fair trial rights as well as the Senate’s constitutional mandate, as a body, to have “sole power to try all impeachments.” Several impeached judges sought court intervention in their impeachment proceedings on these grounds, but the courts refused to become involved due to the Constitution’s granting of impeachment and removal power solely to the legislative branch, making it a political question.” ‘(wikipedia)
The Chief Justice Shirani Bandaranayaka was not denied her fundamental right of defence on the charges in the Impeachment motion. But it was she who walked away without offering any defence. The PSC could conduct an Impeachment in the absence of the defendant.
The PSC was properly Constituted ( even if the four opposition members had withdrawn later) and she had been given a charge Sheet under the Impeachment Motion. Therefore the Impeachment Motion was democratic ,constitutional and within the rule of law. Denying that is a deliberate attempt to show to the anti Government foreign elements that the Impeachment exercise was a “mockery” and an interference into the Judiciary.
What these anti impeachment lawyers are doing is to play into the hands of the anti Sri Lanka West. It was reported in the website of the Star on line, that “the Diplomats who spoke to Reuters on condition of anonymity said the impeachment process was without due process or transparency. This gives the effect that the executive can do anything in the supreme court using its parliamentary two-thirds majority. We don't have any problem with removing the chief justice. But we are concerned on the process." (one diplomat from a European country said.)
Join the manifesting Bandwagon Mr. Gunasekara, the International Community wants “rebels” against the elected government, as it was in Bengazi in Lybia and now in Syria. Unfortunately for them the rural peasant masses in Sri Lanka will not go to a “Tahir Square” or even to the Lypton Circus for mass manifestation as it happens in Egypt, for the like of an Arab Spring, therefore the Lawyers, Professors of FUTA, and Lal Kantha’s Trade Unions could replace them, in a “Black Coats- flat caps - Lal Kantha Lanka Spring.”
NATO will send arms and military instructors to topple the government for regime change. Ranil Wickramasinghe, Tissa Attanayake and Mangala Samraweera are already asking for Commonwealth Intervention. They are keen to topple the government not because of the Impeachment of the CJ, but they see in it a chance to come back into power.
While you are at it Mr.S.L.Gunasekara you may as well moot the idea of a Provisional Government to make it ease for the NATO to intervene. Barack Obama is already organising such Provisional Governments in terms of his new Foreign Policy of Regime Change.