Impeachment crisis: Destiny of Lanka at stakeView(s):
= If the law enforcement process loses its independence, politicos might play the role of policemen and anarchy will prevail
= President insists on going ahead with the move despite pleas by allies for prorogation of Parliament
By Our Political Editor
Sri Lanka’s Parliament has functioned for more than 179 years though under different names at different times. That is from the time of the Legislative Council in 1833.
The laws they wrote in to the statutes and the contributions made by the learned members have gone into public record. Both, the members and the records that have lived the test of time were revered though some may have reflected diverse opinions.
Over the years, Sri Lanka’s political culture polarised into one of the ruling party and a main opposition being the key players. There were checks and balances though it was on a reducing scale. In recent years, the fact that a coalition of parties forming the United People’s Freedom Alliance (UPFA) is in governance with hardly any vibrant opposition is well known the world over. This week, the absence of a strong opposition became the lament among even key cabinet ministers from leftist parties. They are perhaps unmindful that their leader, President Mahinda Rajapaksa, should get part or more of the kudos. His deft manoeuvering has divided some political parties or united some factions in his favour.
Arguably, the political system has also gone through a metamorphosis in more recent years. If one formidable political party at the centre picks on a ‘strongman’ to contest a district, it became customary for the rival party to select his or her opponent. They did not necessarily come from academia or with a professional background. The process spawned a relative drop in quality in the calibre of those who represented the voters. That is by no means to say there are no more men or women of wisdom. There are, but some have been relegated to the graveyard of the silenced. For some others, the stakes involved have struck a blow to principles. The choice before them is survival, both personal and political.
When political parties were returned with overwhelming mandates, it became a tool for the government in power to tinker with the constitution. Such moves made the office of the Executive Presidency omnipotent. A later 18th Amendment to the Constitution not only degraded Parliament but also strengthened individual power of that office. Thus, it became the Executive President who appointed the Chief Justice, senior judges, the Police Chief and the Elections Chief among others. The role of the opposition became only advisory and they continue to refuse to participate in such a process. The Human Rights Commission and the Attorney General’s Department among others came under the presidency. Institutional power was thus weakened.
Yet, the institution these elected representatives belong, the Parliament, the supreme body remains sacrosanct. What they place on official record, like legislation they pass, remains for posterity though some may have become obsolete and the others amended. So are the findings of Parliamentary Select Committees (PSC) that are appointed to probe various issues of national importance. The findings in the form of a report have become a “Magna Carta” of sorts in the fields they delve in.
This is why the 1,575 page two-part report of the Parliamentary Select Committee that probed the impeachment charges against Chief Justice Shirani Bandarnayake is significant. Though only signed by the seven members of the ruling coalition, after the four opposition members walked out in protest on grounds that the process was not just and fair, it will still remain a record for both the public and future parliamentarians for generations to come. Fearful or comforting enough, it could form the yardstick or precedent for future parliamentary probes. More so in an environment where past reports or utterances are cited to back present practices and justify them. Such justifications have sometimes gone beyond simple logic or complex legalities.
Just ten days after Sri Lankans mark the advent of 2013, Parliament will debate a resolution based on the PSC report to impeach Chief Justice Bandaranayake. Though it was to be a three-day debate beginning on January 9, the main opposition United National Party (UNP) is not willing to forego that day to discuss the impeachment motion. It has been ceded to them by the government side earlier to debate any issue they wished. Hence January 10 and 11 have been marked as the two days for the debate though the Opposition parties will demand for more time when Parliament meets. This is on the basis that Speaker Chamal Rajapaksa had assured them even ten days if they needed them. When a PSC has concluded its sessions in just eight days of sittings, it is highly unlikely that a ten day debate, though promised, would be allowed.
The Government is determined to go ahead with the impeachment move despite appeals by some of its coalition partners to prorogue Parliament and thus end the current imbroglio between the Legislature and the Judiciary.
Appeals were also made by leading members of the Buddhist, Catholic, Hindu and Muslim clergy not to go ahead with the impeachment move. Besides, both the Court of Appeal and the Supreme Court have recommended a halt to further action until cases before them on the constitutional legality of the parliamentary moves is resolved. However, President Rajapaksa has told his ministers that the move would go ahead and urged the seniors in particular to defend the Government’s position. This was after the silence of some of them had drawn his attention.
This was whilst more official details emerged of an earlier move to impeach a Chief Justice when the UNP was in power in 2003. This was the impeachment move against then Chief Justice Sarath N. Silva. A letter marked “strictly confidential and urgent” sent by Faisz Musthapa PC, the then Sri Lanka’s High Commissioner to the United Kingdom, reveals that the then government sought help for a panel of judges from the Commonwealth to inquire into allegations into then Chief Justice Silva. Here is the full text of the letter dated November 21, 2003 addressed to Bradman Weerakoon, the Secretary to the then Prime Minister (Ranil Wickremesinghe).
“As you are aware, further to the discussions that the Hon. Milinda Moragoda had with the Secretary General soliciting assistance in securing the services preferably of sitting judges of the Commonwealth to inquire allegations against the Chief Justice, in the event of the proposed impeachment motion be proceeded with, I formally communicated with the Secretariat and I am awaiting a response thereto. However, at an informal level, we have been made to understand that it is unlikely that the services of sitting judges could be obtained. In the interim, I have received a communication from Lord Brennan in this connection, which I am forwarding herewith. I shall be grateful, if you would kindly place it before the Hon. Prime Minister.
“You would note that Lord Brennan has inter alia suggested the names of certain retired judges drawn from India, UK, Australia, New Zealand and Canada. If this suggestion is acceptable, this Mission would take up the matter further with the relevant authorities in the UK whilst appropriate diplomatic channels in the other countries would need to be pursued.”
Lord Brennan forwarded the names of Ex Chief Justice Verma or Ex Chief Justice Anand from India, Retired Lord Justice of Appeal Sir Phillip Otton or Retired Lord Justice of Appeal Sir Christopher Staughton from the United Kingdom, Ex-Chief Justice Sir Anthony Mason or Ex Chief Justice Sir Gerald Brennan of Australia, retired law lord Lord Cook of Thornden from New Zealand and Ex Supreme Court of Justice Madam Claitre L’heureux Dube of Canada.
Giving reasons why serving judges cannot be invited to serve, Lord Brennan pointed out that it was a “resources” problem. In addition, he said that “it may be inappropriate for a sitting judge of one jurisdiction to be involved in a sensitive parliamentary impeachment of the Chief Justice of another jurisdiction.” Lord (Daniel) Brennan QC of UK was chairman of the bar in 1999 and appointed a life peer in 2000. He recommended that a “reasonable remuneration and expenses for travel and accommodation” be paid to the retired judges.
Among the other measures he recommended:
- Immunity from suit either within Parliament or without, including any indemnities to costs or damages should they actually become involved in any parliamentary or civil proceedings.
- The tribunal hearings take place in a neutral building, i.e. neither Parliament nor the Courts.
- The hearings to be in public.
- During their stay in Sri Lanka they be housed in private and secure accommodation.
- Subject to Standing Orders of Parliament they should have control over their proceedings.
The idea behind the move to seek foreign judges to serve in the probe then was to have them conduct the initial inquiry. Thereafter, a Parliamentary Select Committee was to probe the matter further after a resolution to impeach the then Chief Justice is formulated. Though no such process has been followed by the present government, President Rajapaksa did offer to appoint “an independent committee and obtain a further report” on the findings of the PSC report. He said he wanted to satisfy his conscience.
The remarks were made on December 11 when he spoke after declaring open a new building complex of the Institute of Chartered Accountants at Dr. Gunapala Malalasekera Mawatha. However, it has now been pointed out that the appointment of any official committee or tribunal would run counter to the Government’s stated and widely accepted position that Parliament is supreme. Hence it is pointed out that PSC decisions are not subject to review by any other outside body. Thus, it has been pointed out that any opinion the President seeks on the PSC findings would have to be at an “informal level” and not through official means.
Consultation with his staff or advisers is an accepted practice.
The 1,575-page PSC report makes some important revelations. The Committee met for the first time on November 14 and, among other matters, resolved that the CJ should appear before it on November 23. On the night of November 14, the charges (14 of them) preferred against the CJ together with a letter from Dhammika Dassanayake, Secretary General of Parliament, were hand delivered to the CJ’s residence. Ahead of her appearance before the Committee, members convened again on November 16 “to discuss matters” relating to a letter sent by Neelakandan and Neelakandan, lawyers for Ms. Bandaranayake. In that letter, on behalf of their client, the law firm refuted the charges and added “we have been duly authorised/retained to appear for our Client at the sittings of the Select Committee.”
At that meeting, Minister Nimal Siripala de Silva, a member of the PSC, was to point out that the legal “representative should be nominated personally by the Hon. (Dr.) Shirani Bandaranayake, who should inform the Committee of such nomination.” He said the letter from Neelakandan and Neelakandan could not be accepted. The Committee decided to ask the Chief Justice to “inform the Committee personally” and to be “present personally before the Select Committee” at their November 23 sittings. Ms Bandaranayake was to later write to the PSC nominating the law firm to represent her. In earlier communications, the PSC had told Ms. Bandaranayake that either she or her representative could be present at the sittings.
There was another issue before that PSC meeting. The government members were not in favour of allowing more than “one representative” or lawyer to represent the Chief Justice. Protesting strongly was UNP parliamentarian Lakshman Kiriella who said that the word “representative” which appears in Standing Order 78 A(5) “should be interpreted to include plural also according to the Interpretation Ordinance and accordingly,” Chief Justice Bandaranaike “may be permitted to nominate more than one representative and those nominees be allowed to appear before the Committee to make submissions (sic).”
Minister Susil Premajayantha, stated that the “Interpretation Ordinance would apply to litigation before Courts and not in case of the Standing Orders and therefore, she should be permitted to nominate only one representative. He further, referring to the proceedings of the earlier Select Committee appointed to investigate on the allegations against the Hon. N.D.M. Samarakoon, QC, former Chief Justice, stated that the Hon. (Dr.) Shirani A. Bandaranayake may be permitted to appear before the Committee with other lawyers. (sic).”
Nevertheless, at the Committee’s sittings on November 23, Minister Dilan Perera had raised objections. The report says: “The Hon. Dilan Perera stated that according to the decision taken by the Committee at its meeting held on 16th November 2012, only Mr. J. Romesh de Silva, President’s Counsel and the head of the legal firm Neelakandan and Neelakandan had been nominated personally by the Hon. (Dr.) Shirani A. Bandaranayake, Chief Justice, who can be permitted to appear before the Committee and the other Lawyers nominated by Neelakandan and Neelakandan, Attorneys-at-law and Notaries Public by their letter dated 20.11. 2012 cannot be allowed to appear before the Committee. (sic)” It was only “after deliberations” that Ms Bandaranayake was allowed to nominate other lawyers to represent her.
The Committee originally decided to allow only one “representative” to appear before it on behalf of the CJ and later included “other persons”. This is how the PSC report recorded it: “The Committee after deliberation, decided that the Hon. (Dr.) Shirani Bandaranayake, Chief Justice, be permitted to nominate only one representative in terms of Standing Order 78A(5) and that nevertheless, she or her representative may appear before the Committee with other persons (sic).” The ambiguity in the remarks is not explained though the Committee’s decision, it is clear, had gone beyond the stated Standing Orders.
UNP parliamentarian Lakshman Kiriella tabled a document titled “Observation to the Select Committee for the Impeachment of the Hon. Chief Justice, Shirani Bandaranayake.” He said: In the Select Committee the complainants are Members of Parliament. They are the prosecutors as well as the Judges. One may argue that this is in accordance with Standing Orders. However, we feel that this is against the natural justice and the legal maxim that justice must not only be done, but it should appear so.
“We feel that the Standing Orders should be interpreted to reflect natural justice, and we as a Committee has a right to do so to uphold the rule of law and the integrity of the Honourable Members of Parliament.
“Under Section 78(A)4, the Select Committee appointed under Paragraph 2 of this Order shall have the power to send for persons, and records….
“Therefore, the Select Committee in the interest of natural justice, has the power to call persons of eminent legal standing to inquire into these allegations and report to assist the Committee.
“In India and Australia, once Impeachment is handed over, extra Parliamentary Committee is first appointed to inquire into and report on the allegations mentioned in the Motion.”
Kiriella, according to the PSC report, said he made the above observations “to facilitate the proceedings of the Committee and in the good interest of upholding legal maxims.” However, there were opposing views. According to the report, Minister Rajitha Senarathna said “that the system of Committee proceedings was categorically based on the Standing Orders which were incorporated when a Select Committee was appointed in 1984 to investigate and report on the allegations against the Hon. N.D.M. Samarakoon, Q.C, the former Chief Justice and this particular system had never been challenged as improper or unethical by judges or persons of eminent legal standing in or outside Parliament.”
Senarathna also referred to the ruling by former Speaker Anura Bandaranaike, “regarding a Supreme Court Order to suspend proceedings on a motion against Hon. Sarath N. Silva, former Chief Justice.” The PSC report adds that “…the ruling of the Speaker which was made after a thorough study of positions in several legislatures and judiciaries proved that Parliament is supreme. Accordingly, there is no reason to doubt integrity of the system or the Members of the Committee inquiring into the allegations and to seek outside assistant (sic) (Note: should read as assistance) to inquire and report on the allegations.”
Minister Wimal Weerawansa added, “….the Committee has no jurisdiction under the prevailing Standing Orders to empower outsiders to inquire into these allegations and therefore, the above observations could not be accepted.”
Thus, the PSC report concluded on an ambiguous note. It said, “The Committee after consideration, resolved that outside persons cannot be empowered to inquire into the allegations and report to the Committee according to the Standing Orders under which the Committee is constituted but nevertheless the Committee reserves the right to obtain technical assistance from outside persons if and when such necessities arise. (sic)” The report does not define what “technical assistance” is.
Another matter of interest in the PSC report relates to the Supreme Court recommendation to act prudently and heed its recommendation to stay action until cases challenging the constitutionality of the PSC are determined. It was conveyed in writing to the eleven members of the PSC by the Registrar of the Supreme Court. This is how the PSC’s official report describes the issue:
“The Hon. Nimal Siripala de Silva brought to the notice of the Chairman and Members of the Committee about a document under reference SC reference No 3/2012 which was laid on his table and inquired as to whether it was a Committee document. The Secretary to the Committee informed that these documents were sent by the Registrar of the Supreme Court to be distributed among the Members of Parliament to whom they have been addressed and they do not constitute part of the official documentation of the Committee.
“The Hon. John Ameratunga, the Hon. Lakshman Kiriella, the Hon. Vijitha Herath and the Hon. Rajavarothiam Sampanthan state that they received these documents in the Committee and therefore they consider them to be part of the official documentation given to them in their capacity as Members of the Committee. The Hon. (Dr.) Rajitha Senarathna, supported by the Hon. Wimal Weerawansa and the Hon. Dilan Perera stated that the proper procedure in handing over letters addressed to Members of Parliament had not been followed and therefore in this instance these documents could not be considered as documents duly addressed to or received by the Committee.
“After deliberations, the Chairman (Minister Anura Priyadarshana Yapa) expressed the view that these documents cannot be accepted as Committee documents and the Committee will not be bound by any obligation emanating from them and if any Member wants to accept them it is up to him to do so. The Hon. Vijitha Herath, supported by the Hon. John Ameratunga stated that according to the document he received from the Registrar of the Supreme Court, the Supreme Court had requested the Members of the Committee to defer the inquiry of the Committee against the Hon. (Dr.) Shirani A. Bandaranayake, Chief Justice, until the Supreme Court makes its determination on the question of interpretation of Article 107 (3) of the Constitution referred to the Supreme Court by the Court of Appeal.
“The Chairman, referring to the submission made by the Hon. Vijitha Herath, stated that (i) the Article 107 of the Constitution had empowered the Parliament to provide for all matters relating to the investigation and proof of the alleged misbehaviour or the incapacity of a Chief Justice, (ii) the Standing Orders are very clear on the procedures to be followed by the Select Committee, (iii) the Hon. Speaker has duly appointed this Select Committee according to the provisions of the Constitution and the Standing Orders, and (iv) precedence is available for the Select Committee with regard to the procedure and proceedings of the Committee.
“The Chairman added that the above facts highlight the jurisdiction of this Committee and its proceedings and therefore the Committee cannot consider the request. He also stated that the Hon. Speaker has appointed this Committee to investigate the allegations against the Hon. (Dr.) Shirani A. Bandaranayake, Chief Justice, and to report to Parliament within a limited time period and therefore the Committee would act accordingly and would not deviate from the responsibility cast on it by Parliament……”
Opposition parliamentarians John Ameratunga, Lakshman Kiriella and Vijitha Herath said they “did not agree with the decision to reject the request of the Supreme Court.” During later proceedings, Counsel Romesh de Silva PC submitted a certified copy of the Supreme Court order (SC reference 3/2012). He said that “in keeping with the mutual respect and understanding founded upon the Rule of Law between the Parliament and the Judiciary to defer the inquiry.”
In this regard, the PSC report added: “Referring to Volume 211 of the Hansard dated 09th October 2012, Mr. J. Romesh de Silva, President’s Counsel, quoted the following from the statement made by the Hon. Speaker in Parliament. ‘We are obliged to protect the people from such a situation and at the same time, maintain the spirit of goodwill between the Legislature and the Judiciary in the interest of the People and the Constitution. On the part of the Legislature, it is imperative that the cordiality and harmony is maintained in our democratic edifice with the other two pillars in the tripod, namely the Executive and the Judiciary, to implement the Constitution effectively in the interest of the people.
“Mr. J. Romesh de Silva also stated that the Hon. Speaker has recognised that the right to interpret the Constitution is the province solely of the Supreme Court. He also handed over a copy of the judgement in the case of Edward Francis William Silva vs. Bandaranayake for the reference of the Committee and read a paragraph from the judgement emphasising the importance of comity among the three organs of the government……”
Among other matters of interest in the report of the PSC of government MPs that brought out the two-part documents: “…..J. Romesh de Silva, President’s Counsel stated that the Standing Order No 78 A (8) which reads as ‘All proceedings connected with the investigation by the Select Committee appointed under paragraph (3) of this Order shall not be made public unless and until a finding of guilt on any of the charges against such Judge is reported to Parliament by such Select Committee,’ was meant for the protection of the Judge when he/she is not found guilty and that his client waives this protection and wants the proceedings to be made public. He also requested the Committee to permit observers to view the proceedings of the Committee. The Hon. Rajavarothiam Sampanthan stated that if the Chief Justice wants to waive the protection she has, it should be considered by the Committee.
“Hon. Lakshman Kiriella, supported by the Hon. Vijitha Herath, referred to the Standing Order No. 130 A (ii) which reads as “The Chairman of such Committee or Sub Committee shall determine the procedure to be followed in the admission of strangers to the meetings” and stated that the Chairman has a right to take a decision in this regard. The Hon. John Ameratunga, the Hon. Lakshman Kiriella and the Hon. Vijitha Herath stated that their objection to the ruling of the Chairman be recorded.”
Originally, the Committee had decided to seek an extension, as is the usual practice if it cannot complete its task, and sit beyond its mandated period of one month. This is what the PSC report said: “The Committee, after deliberation, decided to sit every day till 12th December 2012 except for Sunday and then to decide on the future meetings of the Committee. The Committee also decided to request Parliament for time extension till 14th January 2012. The Committee directed the Secretary to prepare the Motion in this regard.” The report does not make clear why the sittings were wrapped up within a month prompting lawyers of Chief Justice Bandaranayake to complain that they were not given sufficient time. UNP parliamentarian Lakshman Kiriella told reporters that there was what he called a hidden hand that “orchestrated the sittings” but did not identify any person.
On December 6, Romesh de Silva, counsel for the Chief Justice said that his team of lawyers “had not been given adequate time to prepare their defence and that they had not been told the procedure followed at proceedings of the Committee.” He said in these circumstances their client Chief Justice Bandaranayake and the legal team would withdraw. The next day (December 7), the four opposition members of the Committee withdrew. On December 8, the Committee “considered the draft Report submitted by the Chairman and agreed to the Report. The Committee also decided that this Report be presented to Parliament today (i.e. Saturday December 8).”
During the Christmas week, Chief Justice Badaranayake had a 45-minute meeting with Cardinal Malcolm Ranjith, Archbishop of Colombo. The prelate was a signatory to a statement with other religious leaders weeks ago calling upon the government not to go ahead with the impeachment of the Chief Justice. Last Friday, Ms. Bandaranayake was at the historic Kelaniya Temple taking part in religious ceremonies.
As is clear from the developments that began in November, the battle between the Executive and the Legislature on the one hand and the Judiciary on the other, is fraught with dangerous consequences. A politicisation of the judiciary will no doubt lead to a breakdown in the law and order situation.
There are fears that local politicians may play the role of the police if the law enforcement machinery is not independent. That is bound to have a telling effect not only on Sri Lankans but those visiting the country too. Thus, the issue transcends from one involving personalities into one of paramount national importance. How it plays out will affect generations to come.
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