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.



4 Responses to “TRIAL OF THE CHIEF – BY KANGAROO COURT?”

  1. Anil Says:

    The govt. has brought 14 charges against the CJ. In this context we need to look at how the govt. has acted protecting the law in the country. If they have conducted truly to the letter of the law , the we could say that in the same spirit they may have brought charges against the CJ.

    But alas, look at the following….
    1. KP the LTTE leader- Govt. has concluded that he is not guilty of any thing and given protection and luxuries to some one who was hell bent on destroying Lanka with thousands of crimes against the country. Where is his billions of LTTE money ?
    2. Mervyn- This man tied another man to a tree, has been accused of swindling multimillions by fellow councillors. Hundreds of thuggary, unlawful activities etc etc .. Yet , not only he has not been punished, but also he was given the minister of PUBLIC RELATIONS by the President who is accusing the CJ !!!
    3. Duminda- the killer rapist is protected, visited by the govt. members and still remains an MP !
    4. Amare- the killer who had 104 arrest warrants before he was forced to surrender…. why? Due to close connections to the powerful in the land!
    5. Securities exchange- The Directors who found irregularities costing Lanka billions were forced to resign, so that the culprits could continue plundering Lanka.
    6. A journalist who has an arrest warrent has been photographed with the president….. Where in the world such things happen !!!!
    7. Mr Mangala Samaraweea has accused in the parliament that the first family will gain £ 1.2- 1.8 billion from chinese projects between 2005- 2015. Its the same people who accuse the CJ of wrong doing and financial irregularity !!!
    8. President’s BIL- Mr Wickramasinghe-has accepted that customes regulations were broken by his son…. no action !
    9. Greek bonds loss Rs 2.2 Billion, Oild headging loss atleast RS 16 billion, Norochchalai power plant broken down 12 times since opening in 2011, COPE report says govt. lost Rs 10 billion due to mismanagement of state institutions etc etc…. but no one guilty or punished…. why????… All are govt. henceman !!
    10. Many recent high profile murders directly implicates provincial councillors of governing party.
    11. Recent Prisons riot killing 27 inmates…? no one guilty
    12. Recent spate of antique thefts, museum theft etc…. who is actually guilty?

    This list goes on and these are the people accusing and impeaching the CJ for giving decisions based on the Law. The same people found Mr sarath Fonseka guilty many times while sleeping with KP, the LTTE leader.

    Ex Attorny General Mohan Peiris dismissed specific cases against 3 politicians including Duminda who went on to kill against all norms and he also gave ‘hearsay’ evidence at United Nations utterly disgracing the country and his profession. It is such people the govt. want in such positions who will bend down all fours to any criminality of the goverment with out protecting the Law of the land and its people.

    The action on CJ is beyond human civilised behaviour… even animals will dish out ‘justice’ better!!

  2. Darryl P. Gibson Says:

    Dozens of activist federal judges across this country should have been impeached years ago. Of course, it won’t happen because the American people just reelected 90% of the same liars, thieves and cowards who have allowed judicial tyranny to flourish in this country for decades. The U.S. Congress is a body of gutless cowards who pay more attention to making political speeches during hearings (Benghazi-gate) than paying attention to the rotten federal courts and the U.S. Supreme Court.

  3. Michel H. Powers Says:

    When the Senate is in recess, the President may make a temporary appointment without the Senate’s advice and consent. Such a recess appointee to the Supreme Court holds office only until the end of the next Senate session (at most, less than two years). To continue to serve thereafter and be compensated for his or her service, the nominee must be confirmed by the Senate. Of the two Chief Justices and six Associate Justices who have received recess appointments, only Chief Justice John Rutledge was not subsequently confirmed for a full term. No president since Dwight D. Eisenhower has made a recess appointment to the Supreme Court and the practice has become highly controversial even when applied to lower federal courts.

  4. Vanessa Lester Says:

    The reference made to this Court involves a matter which concerns the Judges of the Supreme Court and the Court of Appeal. In dealing with the question we therefore kept in mind that the objectivity of our approach itself may incidentally be in issue. It is therefore, in a spirit of detached objective inquiry which is distinguishing feature of the judicial process that we attempted to find an answer to the question referred to us. We have performed our duty faithfully bearing in mind the oath of office we have taken when we assumed the judicial office which we hold.

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