Saturday, 8 December 2012

What a furore over an Impeachment of a Chief Justice ?

What has got into the heads of the so called educated highly placed people in Sri Lanka.  It was mostly the rural youth who sacrificed their lives, limbs and blood with the fervent hope delivering Sri Lanka from the fetters of devilish terrorism , to keep the country united and undivided.  They were real heroes, they were not asking for pay hikes, political rights, bribes and commissions, but they faced the enemy without knowing whether they will be there to see another day.

But with such an indelible background what we see three years after is shameful. There is greed for money, greed for status, greed to gain power.  We see people with short lived memories, we see local and foreign forces denying the sacrifice our youth made for the sake of their motherland, we see character assassination, we see refusal to give credit to those  need credit, we see the University Professors , and those in high office feathering their own nests, without giving a “damn” to the people and the country.

The Impeachment of a Chief Justice has brought out the worst in some people.  Is this Sri Lanka, that was beaten and battered by the foreign invaders for ages, but yet raised itself from the worst of  suffering  to at last see development and progress ? It is sad those Parliamentarians in the opposition, the media, the judiciary, the academic staff, and even some  monks like Madoluwawe Sobhita have not grown up to understand what is democracy, what is independence, and what above all is National Pride of being Sri Lankans .

Sri Lanka is called a democracy since we have accepted a Parliamentary system of Government.  But that democracy we have safeguarded more than those who claim to be the “ fathers of ” democracy”.  No constitution is perfect.  Imperfections are rectified by amendments. Sri Lanka has an accepted constitution despite its defects.  Our country went through a worst of times, first under colonialism and then  a still worst  time under terrorism. We have got rid of terrorism with sacrifices and deaths, however much the  interfering West the worst of perpetrators of violation of human rights, claim there were violation of human rights in the elimination of terrorism. Is there a perfect end of a war ?  Nothing is perfect. But our country did not cave into anarchy or  civil war  we still  remains a healthy democracy.

The Legislature,  the Judiciary and the Executive are independent of each other in our country.  Judicial independence is accepted.  We expect an exemplary standard of  conduct from the members of the Judiciary.  However, if  members of the Judiciary have acted beyond the law of the land, passed by the Legislature and implemented by the judiciary, then such Judges have to be brought before the law like any one else who breaks the law.

The Judges are  not taken before a court of law to plead before another Judge.  But they can be taken before the highest court of the land to be judged by the people. As in Athens the people do not congregate any more to take decisions on judicial, political or economic matters.  Therefore,  it is  before the Parliament of the  representatives of the people that a Judge is taken to be judged which is called an Impeachment.  That is democracy.

As much as a citizen is taken  before a Judge in Court, a Judge could be summoned to be present before a  Parliamentary Select Commit which  represents the Parliament,  to be  judged on  the charges against her.  The Judge has to  respect the PSCas much as a ordinary citizen is expected to respect a Court of Law.  Otherwise as much as there is a contempt of court in the case of an ordinary citizen there a contempt of the Legislature in the case of a judge.

All those legal details  adhered to in a Court of Law , can also be  adhered to by a Parliamentary select Committee.   The members of a Parliamentary Select Committee, like the members of a  Jury, will not discuss out side  what happened  inside the PSC . But in the Impeachment of the Chief Justice in Sri Lanka those very people who speak of break down of democracy, act contrary to the demands of democracy.

Now let us see the democratically demanded independence of the Judiciary. The Judiciary is independent of the interference by the Legislature and the Executive, but the Judiciary is not sacrosanct and above the Law.  The Judiciary while being independent should respect the independence of the Legislature from the Judiciary. The Legislature remains supreme as it is representative of the people.  The Legislators are the Law makers.  Once a Law is passed it is sent to the Judiciary to carry it out. The Judiciary  interprets the law without changing it.  The Judiciary may suggest changes. The proposed  changes are then discussed in the Legislature, which  may pass an amendment  if the suggested change by the Judiciary is accepted.

The Legislature is the highest Court of the people.  The Legislature makes inquiries into the charges in a Impeachment Motion against Judges through a Committee selected by the Legislature.

In Sri Lanka it was reported that the  Chief Justice  Shirani  Bandaranayake had ‘fled’ from the Parliamentary Select Committee trial.  This is highly irregular, and amounts to a contempt of the Legislature.

In view of this blame worthy act of  the Chief Justice S.Bandaranayake,  it is interesting to read the following excerpt taken from the Wikipedia relating to the Impeachment of  Renato Corona  the Chief Justice of Philippine:

“At one point,Chief Justice  Corona of Philipines tried walk out of the proceedings, and was prevented from doing so by the Senate president, who ordered the Senate doors closed and gave him a tongue-lashing.  He rolled back in a wheelchair, with an attendant at his side. One of his lawyers said he was suffering from dizziness and could not continue.  The judge adjourned the proceedings, ordering Corona to return to court next Wednesday.”

In the drama of the Impeachment of Shirani Bandaranayake in Sri Lanka it was reported that the Supreme Court of Sri Lanka wanted to intervene in the Impeachment  on a case filed by the Sri Lanka Lawyers’ Association. But the Supreme court has no legal right to hear a case against the legislature or the Committee appointed by it to inquire into the Impeachment Motion against  the Chief Justice.

On the question of an impeach in USA it was stated, that: “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)

Impeachment therefore is  a democratic process and the Parliament of Sri Lanka has every right to inquire into an Impeachment Motion presented by the Members of the Parliament. Once a Committee is appointed by the Parliament it becomes  the “court” that inquires into the Charges on the Impeachment Motion.

It was reported that four members of the committee had walked out refusing to continue with the Impeachment proceeding which is a contempt of Parliament.  Unfortunately some of our Parliamentarians haven’t got the maturity to uphold the privilidges and customs of the Parliament.  Their behaviour is disrespectful  to the august assembly the Parliament to which they have been elected by the people. These MPs are not  suitable to represent the people who elected them as they have breached their confidence.  Normally they are  expected to respect their  own title of MP and respect the Parliamentary procedures.  Otherwise they should resign giving their place to more worthy persons to represent the people.

Once appointed to a Committee of the Parliament the members are expected to serve the Committee until the sittings are over.  In their absence  the PSC may continue its deliberations without those members.  They may be replaced by other  members by the Speaker.  The hearings of the Impeachment motions could be  continued even in the absence of the  Chief Justice-the defendent.

It is not democratic for other countries to  interfere in to the deliberations of an Impeachment Motion by a Committee appointed by the Parliament of Sri Lanka. It is a highly objectionable  interference on the part of the American Embassy to have  issued a statement to say :

“These latest developments are part of a disturbing deterioration of democratic norms in Sri Lanka, including infringement on the independence of the judiciary. The United States, along with our partners in the international community, continues to urge Sri Lanka to uphold the rule of law and democratic governance and to continue to address outstanding accountability and reconciliation issues,"

What do they mean by “  disturbing deterioration of democratic norms” ?  Do they want to make it out to be another Bengazi ?  They are itching to change regimes, their favourite past time.

This shows that  the American Embassy is acting in ignorance of democratic procedures of a country.  It also shows lack of respect to the country the Ambassador has been posted.  Because they are American they cannot dictate terms to a Sovereign State more so with regard to its Constitutional procedures. 

A man called Laksiri Fernando writing to Colombo Telegraph( which has become the Journal publishing all anti-Impeachment news and articles) has           raised serious doubts about the political motives behind the move. By that time hurriedly framed bribery charges against the husband of the CJ have already been initiated”. 

Laksiri Fernando should know that these  matters such as how and when the Impeachment  Motion was conceived and presented to the speaker of the Parliament are immaterial .  What is important is the fact that an Impeachment Motion has been presented, and  the fact that it is being investigated, and that a report of the investigation will be presented to the Speaker.

In the mean time the International Commission of Jurists too makes an uncalled for statement: “The impeachment process against Chief Justice Shirani Bandaranayake ignores international standards and practice, says the ICJ.”  Sri Lanka is not bound to follow any International Standards in inquiring into an Impeachment Motion. Sri Lanka Parliament has its own Standing orders and procedures .  The  Parliament of Sri Lanka is an old  Institution and it has matured to put into practice its Constitutional and Democratic processes.

It is the stupidity of our own Parliamentarians of the opposition that is putting our country into disrepute and jeopardy.  The four members of the opposition walking away from the PSC is objectionable.  I am sure there are punishments that could be meted out to them for contempt of the Parliament.

Sri Lanka Media has not done their duty to uphold the traditions of our Parliamentary System. They too see the Impeachment Motion as some thing invented by “ Rajapakse Government” to harass the Chief Justice. They should try to look at things differently  more objectively to make the world understand that we are not a “Banana Republic” .

In this respect one feels ashamed of the type of  information that is formulated and emanated  by the Island News paper.  The following extracts from the Editorial of the Island of the 8.12.2012, is improper and blame worthy:

“ Parliament rejected out of hand notices issued by the judiciary and decided to go ahead with the PSC process without caring a damn about a recent Supreme Court recommendation that the PSC proceedings be postponed until its ruling.  So, the CJ’s pull-out from the PSC proceedings must have warmed the cockles of the hearts of those opposed to the impeachment motion.”

The Supreme Court has no right to issue instructions to the Legislature.  The “wise” Editor of the Island News Paper is ignorant that the Legislature is independent of the Judiciary as much as the Judiciary is independent of the Legislature and the Executive.  CJ’s pulling out is a contempt of the Parliament.

The Island continues, “…..The unnecessary showdown between the legislature controlled by the Executive President and the Judiciary and the deplorable manner in which they are undermining each other’s authority. The late President Ranasinghe Premadasa was troubled by a legislative coup in the form of an abortive impeachment bid. He, however, had no problems with the Judiciary which he effectively kept under his executive thumb. That was the time when judges were scared of opening their mouths—even for a tooth extraction! There was a brief respite during President D. B. Wijetunga’s tenure. President Chandrika Kumaratunga clashed with the legislature and went so far as to sack a UNP-led government having lost control over Parliament in 2001 and been reduced to a titular head of State in all but name for three years. President Mahinda Rajapaksa’s first term was characterised by a wrangle with the Judiciary and currently his government is all out to oust the incumbent CJ.”

As against the late President JR Jayawardhana , and President R.Premadasa, President Mahinda Rajapakse who has done yeoman service to his country is different from the sighted previous Presidents. The President Rajapakse has respected the Parliamentary traditions and has not used his executive powers to the detriment of the people , or the country.

When will our MPs of the Opposition and the Media begin to love their country and respect those traditions and accept the necessity to cooperate with the ruling party “democratically” to keep the interfering International Community  away from harming our country.

All in all the Impeachment Motion should be turned into an enriching experience of a correctly functioning Democracy in a country progressing fast into development.

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