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.