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.
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