Wednesday, 2 January 2013

Commotion over the Impeachment of Chief Justice is the failure to understand the difference between a legal procedure and that of an Impeachment

Impeachment trial  is defined as: “ ……… a political procedure conducted by the Senate to determine whether an impeached official should be convicted and removed from office.”

Here the emphasis is  on “political procedure”.  A case in a Court of Law is presented by the prosecuting Lawyers,  defended by the lawyers in the presence of a Judge.  In the case of a criminal case the verdict is given by a jury of ordinary men selected by the court.  Everyone is subject to law and could be tried in a Court of law except the President of the Country and the Chief Justice.  Nevertheless, they too are not above the law.

Therefore, when the people  or their representatives have a complaint against the President of the Country or its Chief Justice, they inform the speaker of the  Parliament in writing. He appoints a select committee consisting of the Members of the Parliament  to hear the complaint against a Chief Justice or a President.  There are no lawyers in the impeachment  procedure against a Chief Justice or a President  except the  lawyers accompanying  a Chief Justice or the President..

In an Impeachment investigation  there are a  set procedure to be followed which are not those followed in a court of Law.  A Latin maxim , “ audi alteram partem “ is bandied as if it   had not been applied in the case of the Impeachment Motion against the CJ.   It simply means, “ In law, no person shall be condemned, punished or have any property or legal right compromised by a court of law without having heard that person.”

“An impeachment trial, or removal trial, is a political procedure conducted by the PSC to determine whether an impeached official should be convicted and removed from office.”

The Impeachment Motion against the Chief Justice Sriani Bandaranayake  in Sri Lanka  had been followed as it should be in terms of the Article  107 and its sub items of the Constitution of Sri Lanka.  The Charges had been made by  117 Members of the Parliament who had handed them over to  the Speaker.  The Speaker following the Parliamentary Standing Orders  had appointed a 11 member Special Parliamentary Committee with one of them as the Chairman to inquire into the charges. 

The CJ had presented herself  before the PSC along  with a number of Lawyers.  She had heard the Charges and a charge sheet given to her.  She had been given 22 days to prepare her defence (audi alteram partem).  But on the day she was to defend her case before the PSC, she had walked away.  If it was a court of law she would have been charged for contempt of court. 

In a Court of Law, a defendant is served with a Summons.  He is given a specified period of time to respond to the summons and the complaints.  “If the defendant does not respond, the plaintiff may seek a default judgment from the court, granting the plaintiff the legal relief specified in the complaint.”
 Now that procedure is for the Courts of Law, but in the Impeachment trial against the  Chief Justice, she had refused to respond.  Therefore the PSC had closed the case against  her and sent a report to the Speaker stating  the charges  against  the CJ which  had not been defended by her.  The Charges were therefore considered as proved.  What ever accusations  she makes against the PSC now about abusive language used by the members of the PSC, and the fact that four Members of the PSC had also walked away from the PSC after her,  do not carry any weight against the decision of the PSC to send the report specifying the three charges as proved against her. 
For all intents and purposes the Chief Justice Sriain Bandaranayaka remains charged by the PSC.  Unlike in a case heard in a Court of Law.  The report of the  decision of PSC is not the final step in the Impeachment Motion.  The report once presented to the Speaker  is kept, for “a cooling off period of one month” and then presented to the Parliament for a debate.  After the debate the Parliament takes a voting.  Even that is not the final stage of the Impeachment Motion.  After the debate and the voting the report is sent to the President. It is he who takes a final decision.
It has been specified even in the case of an Impeachment Motion in USA, that “ An impeachment trial, or removal trial, is a political procedure conducted by the Senate to determine whether an impeached official should be convicted and removed from office.”
Therefore  there was nothing wrong  or improper with the Impeachment Motion  as it has so far been conducted against  the Chief Justice  Shirani Bandaranayaka

C.Wijeyawickrema  who adds LL.B and Ph.D to the end of his name to avoid falling in to the category of  “nugath modaya (uneducated fool)”   the  description  made by President R.Premadasa and referred to by S.L.Gunasekara, and put himself in the , “so-called educated cream of the country….”

Wijewickrama says, “ Ironically, I find that the Premadasa phrase can be applied to what is now going on with the Shirani B impeachment debacle, with a new twist. One can say we now have Nugath Modayin, Ugath Modayin and Ugath Kapatin (uneducated and educated fools and educated hypocrites). Because I consider that most MPs, PC mps and ministers are Nugath Modayin, I do not want to talk about them.  My concern is about the so-called educated cream of the country, the low level the country has gone down in honesty, morals and reasonable behavior.”

Wijewickrama goes beyond the Constitution, to look at the impeachment from  Buddhist Vinaya Rules, “…….       I do not expect a person like Prof. Nalin de Silva to have a law degree to understand that the basic Buddhist Vinaya rule framed 2600 years ago that an accused monk should be given a fair opportunity to defend his case. So when he ignores this in the case of Shirani B, how can I think of having any hope on others like……”      

Was the CJ Shirani Banadaranayake not given a fair opportunity defend her case ?  Wijewickrama is either misinformed or deliberately over looking the fact.  She was given the opportunity to  defend herself but she preferred to walk away, if the reports were correct.         

Wijewickrama says,”…so far only two persons, H. L. Gunasekara and Rajiv Wijesinghe were willing to separate the question of Shirani B’s guilt or innocence from the commonsense requirement of the need to give an accused a fair trial. This requirement is not what we got from the western jurisprudence; it is what we see in the Buddhist Vinaya rules 2600 years old.”

After accusing that the Impeachment Motion did not respect the legal requirements, it is now been asked  why the Buddhist Vinaya  Rules were not respected in the inquiry into the   Impeachment Motion against the Chief Justice.

In an interview with Hafeel Farisz of Daily Mirror, to a question which Hafeel Farisz asks : 

Why exactly do you oppose the current impeachment motion? S.L.Gunasekara  states:
“ It’s not a question of opposing a motion as such, but it’s a question of opposing a move to impeach the Chief Justice from becoming a political circus and the procedures that are used in this circus. There must be fair play and to my mind there is no fair play at all in this entire process.
Whether she is guilty or innocent of these charges I don’t know, but that is to be proved by those bringing these allegations at a fair trial or inquiry after giving her an opportunity   to cross examine witnesses, leading such evidence as she requires, and of opposing the case against her.”

Despite S.L.Gunasekara being a senior lawyer he continues to make hearsay statements, even if they were “ impeccable sources”.

 Indeed from various statements that were made before the impeachment motion was brought I have little doubt and from the information I received from those I term “impeccable sources”, the impeachment motion was signed blank and the charges came in later. So the idea of impeaching her did not stem from the charges, the charges came after the decision to impeach her was taken. They decided to impeach her and throw her. After this they went about finding charges which I think is completely wrong. The whole idea of an impeachment is that the motion must stem from the charges.”

What grounds has he to say that the impeachment motion was signed blank ?   

I am not a “yes” man to any one , but from reported facts the Impeachment Motion had been inquired into in terms of the Article 107 of the Constitution.  The Impeachment  Motion cannot in no way be related to a trial in a court of Law. If the Chief Justice had not walked away from the PSC she could have defended herself and even cross examined  or explained the documents that nailed  the charges against her.  

 Why doesn’t  S.L.Gunasekara find fault with the CJ for walking away from the PSC ?  Is that not a contempt of the Legislature ?

Then in the next question put to him S.Gunasekara says the same thing over and over again .  He sees the Chief Justice Shriani Bandaranayake “ lily white”, He fails to look at the question of impeachment  objectively.

Q:But one thing that those who brought the motion and who have been a part of the process adopted thereafter, claim and continue to extol is the fact that the entire process is constitutional. That they are acting within the framework provided for in the constitution. Do you not agree with this view?
The constitution does not say that anybody must be unfair towards another. Indeed article 107 (3) which provides for the impeachment of a judge very specifically states the burden of proof is firmly on those making the allegations. Whereas the standing order 78(A) says that evidence must be led in disproof. But disproof necessarily implies proof. So if there is prima facie evidence one can pardon the use of the word disproof, but then evidence must be read, she should have been given the opportunity of defending herself , she must have had the opportunity to cross examine witnesses that were brought against her, she must be given the opportunity of studying the document against her. Instead  all of a sudden she has been given over a thousand pages of documents according to the reports that I hear, and told to come the next day with a defence. This is humanly impossible and I can say this as a lawyer with close to 45 years standing.”

The following question by Daily Mirror, is the most important to understand how
unreasonable is the Senior Lawyer S.L.Gunasekara .

Hafeel Farisz asks:
Q:One thing that you campaigned for is the fact that you wanted the lawyers of the country to form a collective of some sort against this process. What role do you actually think the lawyers could play?

 S.L.Gunasekara says: .?....Well, my suggestion to the Bar Association was, the BASL should call on all members not to accept the appointment of a Chief Justice. This is because of the utterly shabby and shoddy way the current Chief Justice was treated…….”
I can’t visualize any person with a trace of self-respect accepting that appointment and I don’t think we should have as Chief Justice any person who doesn’t have a trace of self-respect “

This is the most irrational and absurd statement to come out of a man like S.L.Gunasekara, who is supposed to be a senior lawyer of standing.

All those who cry high and low against the Impeachment Motion should understand that it  cannot be compared to a trial in a Court of Law.

Impeachment is a function of the Legislature which  separates it from the Judiciary and the Judiciary has to abide by the Legislature despite its independence.  It is the Constitution which is supreme here , and it the Constitution which separates the Judiciary from the Legislature and the Executive,  and the Legislature and the Executive from the Judiciary.

No comments: