Prof. Rajiva Wijesinha proposes Rules to prevent Judicial and other Abuses.

I prefer to read the writings of  Rajiva Wijesinhe. Because he unlike Dayan Jayatilleke  is able to write without having to quote from other writers .

Rajiva Wijesinhe  seeks solution to the Impeachment of CJ, saying, “I believe that impeaching the Chief Justice is no solution to anything, and will in fact lead us to forget the actual problems.”

Apparently why he does not want to speak about the Impeachment motion is as he says, “ I realize I am probably wasting my time, since we have developed a culture of addressing problems with sledgehammers designed for other uses. We generally land it on our own toes as well as the toes of those connected peripherally with the problem, instead of the people or the procedures that are the root cause of those problems.”

For him the Impeachment Motion is a “sledgehammer” treatment.  He faults the attack on Darusman Report which could have  avoided UN Secretary Generals’s “selective analysis”. He blames the government , without saying so, for  dismissing Tamara Kunanayagam ( which  the writer agrees with) for Geneva Disaster, and allowing those who contributed to  it to ‘deceive the President about leading lights in India as well as in the Sri Lankan Freedom Party, which should be the President’s closest allies in fulfilling his developmental agenda.”

In presenting his solution to the problems that led to the Impeachment motion, he says , the “same propagandists  ”  who precipitated the dismissal of Tamara Kunanayagam , may  claim  that the “solutions” he proposes are, “ …based purely on personal ambition. But that will be a small price to pay if there is greater awareness of the need for proper procedures as well as clear guidelines for the conduct of public officials.”

Then he analyses the  problems under,  (1) the conduct of the Chief Justice, and (2) the procedure adopted by the Select Committee.

About the first the conduct of the CJ,  he say that, “  the improprieties highlighted do not necessarily deserve impeachment, and certainly not through the present effort….” And for the second as a  solution he says, “ we need mechanisms in place to ensure that the two relatively serious wrongs of which she is accused cannot again be committed, whatever mitigating factors might be advanced in mitigation.”

The solutions he  suggests are outside the Constitution and the Parliamentary procedures  proposed for the removall of a Chief Justice, under the Article 107(3) of the Constitution.

He wants  “ Judicial Norms” instituted with “ binding rules.”    Instead of the proposal of solutions he may as well have suggesting a new “Constitution”  as his solutions do not go along with the present Constitution  which already has  provision to deal with high officials for committing  improprieties.

His suggestions are:

a)     prevent any judge sitting in judgment in cases in which he or she has any interest (To deal with the Chief Justice buying a flat from Trillium while judging their cases. It is clear she understands this was wrong, inasmuch as she withdrew, immediately after the impeachment resolution, from that Bench).

This is a Charge in the Impeachment Motion. A  Chief Justice should know of her responsibilities, writes and wrongs without having to  set them out  as separate rules of what exactly is expected of her as the Chief Justice.

Then he suggest:

b)    remove the absolute power of the Chief Justice to allocate cases, and instead set up a panel consisting of the three most senior judges. No changes should be made except by the panel in consultation with the original bench, and in consultation with the entire Supreme Court if allegations of bias have been made (To deal with the Chief Justice replacing the Bench hearing the Trillium cases with a Bench headed by herself).

It  is absurd to appoint a Panel over and above the Chief Justices to advice her on how to allocate cases .  The Chief Justice should be able to  decide on her own  on such matters and take independent decisions, without erring in favour of one or another. If not she commits a punishable  offence for which she should be  charged and if proved, removed for misconduct.  That is where the Constitution provides for an Impeachment Motion.

Next  he proposes:

c)     prevent any spouse of a judge accepting office from government except in the case of those already in government service. No judge or spouse of a judge should be offered or accept office from government for five years following the judge’s retirement, except for appointments to mediation boards and such task bound assignments (To deal with the appointment to high positions of Mr Kariyawasam.)

This is of course a matter that the President should have been advised by those he consults before making such appointments.  But the charge in the Impeachment Motion  in respect of this is that,” .. she becomes unsuitable to continue in the office of the Chief Justice due to the legal action relevant to the allegations of bribery and corruption leveled against Mr. Pradeep Gamini Suraj Kariyawasam, the lawful husband .”

The reasons for the charges are given  in the Charge Sheet of the Impeachment Motion as follows:

(i) whereas it amounts to improper conduct or conduct unbecoming of a person holding the office of the Chief Justice;
(ii) whereas she had been involved in matters that could amount to causes of action or controversial matters,
(iii) whereas she had influenced the process of delivery of justice,
(iv) whereas there can be reasons for litigants to raise accusations of partiality/impartiality, she has plunged the entire Supreme Court and specially the office of the Chief Justice into disrepute.

Rajiva Wijesinhe, these are matters that cannot be raised in a court of law against a Chief Justice. Therefore it is imperative that there is another way to  charge her for her  misconduct.  That is why the Constitution has made provisions for  an Impeachment Motion  to remove a Chief Justice for the improprieties  committed by her.

Wijesinhe goes on with all types of solutions without making any reference to the Impeachment Motion, the only means we have under the Constitution to accuse a Chief Justice for her misconduct. 

Therefore all that Rajiva Wijesinhe says  is not appropriate in the present case of an Impeachment Motion that is being debated in the Parliament, which  for the good Professor is only  dropping a “sledgehammers designed for other uses.”

Then he proposes a Committee of sort, “…. such as the Auditor General’s Department or the Bribery Commission, though with greater institutional safeguards regarding the independence of those institutions (To prevent accumulation of misleading statements as seems to have been the case with the Chief Justice)”

Finally Professor Rajiva Wijesinhe says, “ Given what has been reported, it is clear that the ‘moral conduct of an exceptional degree’ expected from a Chief Justice that the Committee believes is necessary was not forthcoming. But of course the high standards enjoined by the Committee are expected also from Parliament, and we need measures to ensure that as well.”

The Diplomats,  and the government Members of Parliament should be prepared to defend the actions of the Government when they are taken in terms of the Constitution and properly executed.  In not doing so they invite the anti Sri Lanka elements to interfere into the internal affairs of the Country. 

In order to defend the government and its actions they- the Diplomats of Sri Lanka, and the government Members of Parliament should be conversant with the Constitution and other procedural and administrative documents  used for the  conduct  of the affairs of the State.

This unfortunately is not the case from what we have  read  in the interview Dayan Jayatilleke had with the  Journalist of the Mirror, or read in the article by  Rajiva Wijesinha. 

It is therefore advisable for the government to make it essential for the Diplomats and the Government Members of the Parliament to have a good understanding of at least the Constitution of Sri Lanka.