Nov 17

The Citizens’ Movement for Good Governance (CIMOGG) has emphasized repeatedly that there is a strict need for the Constitution and all subordinate laws to be honoured not only by the citizenry but equally so by the People’s representatives.  A few of the issues raised by us previously have acquired a particular importance in view of the current proceedings that have been initiated against the Chief Justice.  Whereas the present impeachment effort is considered to be sub iudice and, hence, out of bounds, there are many questions of law which arise in this instance that have ramifications outside the impeachment itself.  We need to look at these.

We wish to begin by noting that Speaker Chamal Rajapakse has been laying a lot of stress on the need to follow constitutional requirements strictly, eg. even in respect of the technically precise manner in which he states that the Supreme Court should deliver its determinations to the Speaker.  His keenness to assert the supremacy of the Constitution is appreciated.

The DECLARATION OF ASSETS AND LIABILITIES LAW was passed in August 1975.  It was amended subsequently by the DECLARATION OF ASSETS AND LIABILITIES (AMENDMENT) ACT No. 74 OF 1988.  Now, Section 3 of the aforesaid Law states that “… a person to whom this Law applies referred to in paragraph (dc) of sub-section (1) of Section 2 shall be deemed to have complied with the provisions of this sub-section if he makes a declaration of his assets and liabilities as at the date of his nomination as a candidate for election under any of the Acts referred to in that paragraph on the date of such nomination or before he functions, or sits or votes, as President, a Member of Parliament …@.  We have no idea as to how many of the present MPs have functioned, sat or voted in the House before submitting their schedules of assets and liabilities.

The People have delegated their legislative powers to Parliament and are entitled to know whether the Speaker has satisfied himself that every one of those sitting in Parliament, including himself and the President (when he plays the role of Finance Minister), have all submitted their declarations before they participated in the activities of the House. How many are there who have still not complied with this condition?  How legally valid are the acts done by such MPs?  We do not wish to discover months or years too late that their acts were unlawful because they were ab initio legally unqualified to function in Parliament.  If the Speaker does not reassure us on this point without undue delay, the People will naturally wonder why.

A second consequential issue is whether, as required by law, MPs have submitted annual updates of their assets and liabilities.  An equally critical corollary is whether an autonomous body of responsible and properly qualified auditors rigorously checks such annual returns for compatibility with the MPs’ known sources of income – including, of course, the unlawful selling of duty-free car permits.  Should not a conscientious government hasten to pass the legislation that will require this kind of checking to be done routinely at least in the case of MPs, judges and all those holding positions of influence in the State machinery?  CIMOGG has already made practical suggestions as to how this may be done effectively and continues desperately to search for ways and means to overcome the apathy of the public and the reluctance of the authorities to get things moving.

Yet another point that needs elucidation by those better informed than we are is whether information obtained by unlawful means could be used in any form against an alleged defaulter.  Is such information legally admissible in certain circumstances?  We are not referring specifically to the revelations recently made public about some personal bank accounts, which should presumably have been covered by strict banking secrecy.  The question is whether this kind of violation, if proven to be true, will become the norm whenever the authorities want it to be so.  There is, of course, a legally permitted procedure for securing bank account details.  In the absence of a Right to Information law, we have not been able to ascertain if the correct procedure was followed in the impeachment matter and whether the right safeguards will be available at all times for all members of the public who have bank accounts.  The relevant authorities must appreciate that carefree breaches of banking secrecy would have very serious repercussions not only for the individuals or institutions concerned but also for the confident and confidential conduct of local and foreign business transactions.

Yet another issue that confuses many of us is the following.  Article 4(c) refers to Parliament exercising the judicial power of the People “… through courts, tribunals and institutions created and established, or recognized, by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and its Members, wherein the judicial power of the People may be exercised directly by Parliament according to law”.  To laymen, it seems fairly clear that Parliament can exercise the judicial power of the People only in respect of the privileges, immunities and powers of Parliament and its Members, and that any other infractions of the law by any citizen must be dealt with separately by properly constituted courts.  Therefore, if a judge were to be accused of “proved misbehaviour or incapacity” in terms of Article 107 of the Constitution, Parliament has no right to act as a court in determining the rights and wrongs of the matter.  As responsible members of the public, we should like to know from well-regarded legal authorities if there is any other possible interpretation because there should not be a situation where our judges are compelled to deliver their decisions while being subjected to this ever present threat.  If there is the slightest doubt in this regard, the Constitution must be amended forthwith.  All that may be required is a sentence or two to clarify the position once and for all.

In the case of the ongoing, it has been noted by commentators that the majority of those making charges, those framing the rules for the conduct of the proceedings, those evaluating the veracity or otherwise of the evidence presented, and finally voting on it are substantially the same or have common interests.  Does this alleged manner of investigating, charging, inquiring and delivering judgment have any parallel in any democratic country?  Is it compatible with the tenets of natural justice and due process?  If this kind of procedure is capable of being applied to an incumbent Chief Justice, what is the justice that ordinary citizens can expect from such a biased system?  Therefore, in order to reassure the public that they will be given proper protection under the law, we most earnestly request Parliament to review and remove all loopholes from every relevant law so as to ensure that “no man shall be a judge in his own cause” – or that of his relatives, friends and colleagues of whatever classification.

As an organization that is committed to the promotion of good governance and the Rule of Law, we have found that it is imperative and morally obligatory upon us to keep the public informed through the media about those substantive legal and governance issues which they would normally not have the time to go into in any detail.  It is hoped that concerned members of the public will try to persuade their representatives in Parliament to work genuinely in the spirit of the Directive Principles of State Policy and Fundamental Duties.

Dr A.C.Visvalingam
President, CIMOGG

Nov 13

by

Elmore Perera, Attorney-at-Law
Founder, Citizen’s Movement for Good Governance
Past President, Organisation of Professional Associations

A senior government source is reported to have stated on 8 November 2012 that “The PSC will work out the modalities for the sittings.  It will only allow a single counsel to accompany the Chief Justice and would allow witnesses or documents to be called only with the consent of a majority of members,” and also that “the government had no intention of allowing representatives of the International Bar Association, International Judges’ Association and Commonwealth Bar Association and even the media to observe the proceedings as that would affect the Sovereignty, the authority and the independence of the Sri Lankan Parliament, if they were allowed to monitor or report or comment on the PSC.”   If this is not a Kangaroo Court (with apologies to kangaroos), I don’t know, what is. Certain legalistic individuals,
prostituting their questionable standing as legal luminaries, have even advocated that these Kangaroos be clothed with Judicial powers to validate pronouncements based on their “findings”.  The purported “findings” may very well be clearly contrary to the weight of evidence available. The modus operandi seems to be to shut out any information regarding such evidence until the foul deed of impeachment is
concluded.

This government source, the Speaker, and the PSC appointed by him, must all realize that the only valid interpretation of “Sovereignty”, as per the 1978 Constitution, is that given by the 9-judge bench of the Supreme Court headed by Hon. Neville Samarakoon CJ , viz. “Sovereignty of the Sri Lankan People under the 1978 Constitution is one and indivisible. It remains with the People.  It is only the exercise of certain Legislative, Executive and Judicial powers of the Sovereign People that are delegated to the Parliament, the Executive and the Judiciary.  Fundamental Rights and the Franchise remain with the People and the Supreme Court has been constituted the guardian of such rights.”  There certainly cannot be any such thing as “Sovereignty of Parliament”.  The authority and independence of Parliament are limited to what are set out in the Constitution and, therefore, the extent of such authority and independence is subject to the interpretation of the Supreme Court.

The impeachment of a President cannot be proceeded with unless the Supreme Court, after due inquiry, finds that the President has been guilty of any of the allegations contained in the resolution for his impeachment.  Can the impeachment of a Chief Justice be based on a finding of a motley group of Parliamentarians with no judicial authority?  Clearly not!  Any such finding is clearly subject to appropriate judicial review.

It is self-evident that “the truth of a matter does not depend on how many believe it”.  The truth of the 14 allegations (several of which seem to be clearly unfounded) certainly cannot be based on how many ‘vote’ for it.  Cognizance must be taken of the fact that several Parliamentarians who publicly professed to oppose the 18th Amendment did, however, for reasons best known to them, vote for it.

The statement made by ex- Chief Justice Sarath N. Silva, that the impeachment exercise is “purely of a disciplinary nature relating to a contract of employment between the Judge and the Government of Sri Lanka” and that “the publication of the charges and the response moves the issue into the realm of a public trial which will only harm the Judiciary” is, to say the least preposterous!  The charges against him were, at that time that they were made, all in the public domain and any attempt by him to answer them would have been tantamount to digging his own grave.  Without merely “sitting and staring at the Order Book”, he took action and was saved from the ignominy of impeachment by the timely proroguing and subsequent dissolution of  Parliament by his benefactor President Kumaratunga, to whom he had administered the oath of office, as President in 1999 and once again “secretly” in 2000, for reasons best known to him.

It was only because the charges contained in the impeachment motion against her were made public, that the Chief Justice has been able to refute them as convincingly as she has done.  On the other hand, if they were not publicized, the PSC could have gone through the motions secretly and caused irrevocable harm to the Judiciary. In that event, no judge would in future dare to act independently to uphold the rights of the Sovereign People, even in the face of patently unlawful violations of the Fundamental Rights of the People.  Perhaps this ex-CJ is not averse to this impeachment (which will cause untold damage to the Judiciary) for the reason that his conduct at the meeting of the Judicial Services Commission (JSC) on 30 December 2004 and the manner in which he conducted the affairs of the JSC in the year 2005 (with the active support of then Secretary of the JSC, Chandra Jayatilaka, who was recently appointed by the President to the Court of Appeal), which resulted in the “constructive termination” of the tenure of Bandaranayake J and Weerasuriya J as members of the JSC in January 2006, will thereby be permanently swept under the carpet.

This trial must necessarily be conducted in as transparent a manner as possible, to safeguard the independence of the Judiciary.  It may be necessary for civil society to take a stand to ensure this.  The arbitrary and indiscriminate use of the law enforcement agencies to suppress any dissent may require civil society to resort even to peaceful civil disobedience.  Failure to do so may seal the fate of democracy and pave the way for ruthless dictatorship.

Nov 05

The Citizens’ Movement for Good Governance (CIMOGG) has consistently endeavoured to keep itself informed of the constructive analyses made and advice offered to the People of Sri Lanka and our elected representatives by numerous knowledgeable, non-partisan persons of wide experience and genuine goodwill.  The fact that those in power show scant regard for the views expressed by these wise persons does not diminish the value of the opinions expressed.  However, what is deeply worrying is that the majority of the public has now gone into such a despondent mode that they just say “What is the use of our saying or doing anything?  It is best to be silent and lie low, and hope and pray for better times.”  On the other side of the spectrum, a good number of our fellow citizens have found it convenient and materially rewarding to shut out their consciences and join the bandwagon.

Whenever human beings have got together to work for their own security and advancement, they invariably agreed on a set of rules – nowadays called a “constitution” – to govern their inter-relationships so that a stable society could be maintained.  For much of history, most countries did not have a written constitution.  But the ground rules were understood by everyone.  Here, after Sri Lanka had gone through two earlier constitutions, President J.R.Jayewardene foisted the 1978 Constitution on us.  It contained within it much potential for good and but equal potential for bad.  The most critical weakness in it was the failure to have a clear separation of powers between the legislative, executive and judicial sectors.  Of particular concern is that the wording of the article about the exercise of the People’s judicial power is such that the Judiciary is made a body of secondary importance to the Legislature.

This was not all.  The powers of the Executive President were so formulated that they allowed whoever was in that position to hold a “Sword of Damocles” over all MPs in the form of a threat to dissolve Parliament before completion of its full term.  Such premature dissolution would cause immense problems for most MPs because they would not have had enough time to earn the expected returns from their pre-election campaign “investments”, which a Cabinet Minister recently said was more than Rs 50 Million per MP!  They could also not be sure at all that they would be returned to Parliament after another round of elections.  Armed with the “sword”, our Presidents have been able to exercise a most unwelcome influence over Parliament; and over the Judiciary through Parliament.

In or about September 2010, government Parliamentarians helped actively to have the 18th Amendment passed.  Even the few who claimed that they were “opposed to it in principle” voted for it for reasons that the public can only guess at.  The “sword”, perhaps?  By this terrible act, the majority in Parliament recklessly handed over the People’s sovereignty on a platter to one solitary individual – not only to the present incumbent but to all his future successors, even though the MPs concerned could not possibly have had any idea of how cruel and corrupt the successors may turn out to be.  The Opposition, on its part, made some half-hearted, token noises at the time against the passing of the 18th Amendment; and that was their total contribution to safeguard democracy.  Their protests were not very convincing because they probably spent more time dreaming of the day that they themselves would be able to come to power and enjoy the fruits of JRJ’s Constitution and the new 18th Amendment.

It is to the credit of the Judiciary that, at some politically sensitive moments, it did assert itself and succeeded to a certain extent in trying to uphold the letter and the spirit of the Constitution.  But now, the outlook for the future has become very bleak indeed.  The move to impeach the Chief Justice and the circumstances that are reported to have some bearing on it are causing much apprehension in the minds of those who are striving for good governance and the Rule of Law.  There are a lot of grey areas regarding this impeachment and it is our hope that the Parliamentary Select Committee will find a way out that will not destroy the Judiciary altogether.  It would be foolhardy of us to say anything more on this subject at this moment although there is much to be said.

It is frightening to recall that many of those who signed the impeachment motion against President Premadasa later claimed that they did not get an opportunity of reading what they were asked to sign!  In the case of the 18th Amendment, the text of it was not seen by most MPs until just before they were required to vote for it.  We are not at all certain whether all the 117 MPs who signed the impeachment motion against the present Chief Justice had the opportunity of examining critically what they were signing or were even bothered by the possible implications of what they were doing.  Judging by the precedents we have before us, we can be reasonably certain that very few of them would have thought about their obligations in respect of the doctrine of public trust that the People’s representatives should always have foremost in their minds.  It is more than probable that most of them have not the faintest notion of what this doctrine is about.

In this background, we must regard with great caution those who are intent on deliberately misleading the public on a key point in the Constitution – that is, as to whether Parliament is supreme as some politicians, even senior ones, loudly proclaim.  The truth is that nowhere does the Constitution say so.  In fact, quite the opposite.  Article 3 of our Constitution states unequivocally that “In the Republic of Sri Lanka sovereignty is in the People and is inalienable.  Sovereignty includes the powers of government, fundamental rights and the franchise”.  Article 4 says that the People’s legislative powers shall be exercised by Parliament; the executive power and the defence of Sri Lanka shall be exercised by the President; and the judicial power of the People shall be exercised by Parliament through the Courts.  It is only in matters relating to the privileges, immunities and powers of Parliament and its members that judicial power may be exercised by Parliament directly.

It is plain from these two Articles that sovereignty is in the People, as it must necessarily be, and that the Constitution has been based on the logical concept that the People are supreme.  It is the People who delegate their powers to Parliament, the President and the Judiciary and not the other way round.  These three institutions are obliged to act as agents appointed to look after the People’s interests; not as the People’s superiors.  Consequently, not one of them can be deemed to be supreme in any way in relation to the People.

There can be no leaders if there are no People; but there can be People without leaders.  It is not a “Did the chicken or the egg come first?” type of conundrum.  The People are unquestionably first, foremost and supreme.  The assertion made by a few vociferous, intellectually dishonest characters to the effect that Parliament is supreme is untenable, whether it is viewed from a commonsense point of view or even morally.  How long will it be before the People of this country realize, and say so loudly and clearly that their representatives need to be put in their proper places, and join hands with their fellow citizens to do so?