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Traditional dancers welcome Chief Justice Sarath N. Silva - in the centre of an impeachment crisis - when he inaugurated a World Bank funded project for the renovation and refurbishing of the Colombo Courts complex. Pix by Lakshman Gunatilake

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Speaker to reject SC interim order

Motion against CJ to be entertained, but questions may be raised on 'political trials' of judges 
By Our Political Editor
Speaker Anura Bandara–naike is expected to give a "lengthy and exhaustive" ruling, rejecting an order of the Supreme Court staying him from appointing a Select Committee to probe an impeachment motion presented by the Opposition against Chief Justice Sarath Silva, The Sunday Speaker BandaranaikeTimes learns.

The order is expected either on Tuesday, June 19 or Wednesday, June 20 when Parliament sits.

"Astrologers are divided on the best day to deliver the ruling," sources close to the Speaker said," but legal and constitutional opinions are not."

These developments come in the wake of moves by quarters who were behind the Fundamental Rights cases on June 6 to rush to the Supreme Court early next week and try and withdraw their applications, thereby, in effect, vacating the stay order in the knowledge that their legal adventure was one of futility.

This move appears to be aimed at pre-empting the Speaker from giving a ruling which they fear might even trigger a move by Parliament against the Supreme Court judges who gave the stay order on him.

The Sunday Times learns that Speaker Bandaranaike is aware of these moves and that he may consider defeating them by either giving his order before they go to court with a 'per incuriam' application, or in any event give his ruling notwithstanding the fact that the stay order has been vacated.

Once the Speaker gives his ruling next week accepting the impeachment motion filed against the Chief Justice, he will then necessarily be compelled to proceed to appoint a Select Committee of Parliament to probe the charges in the motion.

The Speaker is expected to ask the party leaders represented in Parliament to nominate their representatives for the Select Committee.

The Sunday Times learns that the Speaker may make some reference in his order to the fact that as much as the way the Standing Orders of Parliament are presently constituted binds him to hold with the supremecy of Parliament over the Judiciary in the way it conducts its own business, he would prefer amendments to the Standing Orders to prevent members of the judiciary being investigated and tried by legislators.

Legislators are politicians and the case of an eminent Chief Justice Neville Sama-rakoone being tried by the then Parliament was considered a gross miscarriage of justice.

The procedure in the United Kingdom and India is for an independent committee of eminent persons to investigate charges that would be made in an impeachment motion. The judge under trial would then be found guilty or otherwise depending on the merit of the evidence and not on political considerations.

Under the existing system in Sri Lanka, a good judge can be hounded by a Parliament against him like in the case of Chief Justice Samarakoon. Equally,it was pointed out, a bad judge could get away if the majority in Parliament supported him, politically.

The proposed new Constitution has a provision whereby in instances of this nature, a Chief Justice is probed by three Chief Justices from Commonwealth countries and other judges by senior judges from the Commonwealth.

The Speaker's ruling would also mean that he would be rejecting a motion handed over to him by 111 Government MPs requesting him not to accept the opposition impeachment motion against the Chief Justice.

Mr. Bandaranaike left Colombo last afternoon armed with legal and constitutional opinions he had obtained from President's Counsel Silva, R.K.W. Goonasekera and L.C. Seneviratne among other constitutional experts and from the House of Commons and the Lok Sabha to write his order.

The Sunday Times learns that the order will be lengthy and exhaustive and would take the Speaker at least forty five minutes to read. The need for a long order is because the constitutional crisis that has arisen as a result of the Supreme Court ruling has no precedent in Sri Lanka. In marked contrast, the Supreme Court ruling following three Fundamental Rights applications filed on June 6 restraining the Speaker from appointing a Select Committee of Parliament under the Standing Orders of Parliament to investigate and report on allegations of misbehaviour or incapacity against the Chief Justice was contained in four pages. The three judge bench comprising Justices Priyantha Perera, Shirani Bandaranayake and Hector Yapa said, "We have given our careful consideration to the submissions of counsel for the petitioners and the pleadings filed by the petitioners in these three applications. Upon a consideration of the material placed before this Court and the submissions of the learned counsel it would appear that the matter raised by counsel for the petitioners involved the purported exercise of judicial power by the legislature. This question in our view is of paramount importance which is fit and proper for review by the Supreme Court." The Court then went on to ask for objections by July 20 and fixed hearing for September 3.

The role of the Attorney General in this saga has also come in for critical comment among the political establishment. Our court reporter Laila Nasry reports below on that.

The Senior State Counsel who appeared on behalf of Speaker Bandaranaike had not followed instructions given in the standard proxy form signed and tendered by the Speaker to object to the three fundamental rights petitions, legal experts said.

They said the question asked was whether on June 6 Senior State Counsel Uditha Egalahewa appearing for the Speaker went contrary to the instructions in the proxy which was filed on the same day and conceded to the granting of interim relief until the final determination of the application. 

The proxy states that "by virtue hereof to object to the application therein and obtain an order dismissing the same with costs and for such purpose to file all relevant papers and documents and take all steps in that behalf and generally to do and perform all such acts, matters and things as maybe necessary to be done and performed in and about the premises..."

However when the three fundamental rights petitions were taken up, Mr. Egalahewa said he had no objections to the granting of interim relief considering the special circumstances of the case. 

Constitutional experts say that though it is possible not to object where interim relief is granted until the final determination of the case, the position taken by the State was "awkward and contrary to the general practice." 

Generally leave to proceed is agreed upon but in cases of granting interim relief, a date is obtained for full inquiry on which the matter before Court is supported by the parties. 

Mr. Egalahewa when contacted by The Sunday Times said he was merely maintaining the status quo in the granting of interim relief but had indicated he would be filing objections on July 20. 

He said this was the general practice with regard to such cases and in fifty percent of cases Counsel maintained the status quo. 

Mr. Egalahewa said he would be filing his objections after the Speaker's ruling. "We will send a letter asking for the Speaker's observations and will file objections accordingly." 

Minister and Government Chief Whip Reggie Ranatunga who spearheaded the campaign to collect the signatures of the government MPs said that while standing by the Chief Justice they also wanted the Speaker to uphold the supremacy of Parliament.

He said that all PA MPs present in the House on that day had singed the petition. 

Mr. Ranatunga said that while upholding the supremacy of parliament, the government motion asked the Speaker not to entertain the UNP-sponsored motion.

Media Minister Anura Priyadharshana Yapa referring to a news item in The Sunday Times last week said that the PA was not divided on the Chief Justice's impeachment motion.

"The constituent parties of the Peoples Alliance have expressed full confidence in the Chief Justice. The Parliamentary Group unanimously decided to request the Speaker not to entertain the impeachment motion and not to appoint a Select Committee," Minister Yapa said.

But Minister D. M. Jayaratne told The Sunday Times last week that he and several other ministers wanted the supremacy of Parliament upheld.

Troops fire at troops

Six army personnel were injured when soldiers of another group fired at them in a case of an apparent misidentification in the Kalmadu-Thandikulam area of Vavuniya last morning, military sources said.

They said that one group was on a foot patrol when they spotted another group in a jungle area and fired, believing they were LTTE-ers.

The group that was fired upon had gone to the jungle area for an ambush on an LTTE group, the sources said.

Meanwhile, in another incident on the Vavuniya-Mannar Road, troops killed two LTTE cadres following a rebel attack that wounded six policemen.

UN help sought for count

Amidst reports that the government has promised a Tamil party ally that the July 17 census will not take place in the troubled north, the Department of Census has sought the assistance of the United Nations High Commission for Refugees to carry out its work in the uncleared areas.

Census chief A.G.W. Nanayakkara told The Sunday Times they were expecting the UNHCR would get in touch with the LTTE and seek its cooperation for the census which is taking place after 20 years.

He said he would also speak to Tamil political parties which were opposing the conduct of the census in the north and try to convince them in order to enlist their support for the move.

Several Tamil political parties, including the government ally EPDP, are opposing the conduct of the census on the grounds that they would not be able to get a proper count due to the unsettled situation in the Northern Province.

An EPDP official claimed that President Chandrika Kumaratunga had given them a verbal assurance that the census would not be held in the north, but the Census Department is keen in going ahead with it.

Meanwhile, the department is training 100,000 enumerators from all parts of the country in preparation for the preliminary census scheduled to take place from June 25 to July 5. 

During this preliminary census the enumerators will visit all residences and institutions to collect information. 

The enumerators will visit these residences and institutions for the second time on July 17 between 6 p.m. and 12 midnight to ensure the correctness of all statistics collected.

Hakeem cries foul as SLMC crisis deepens

By Nilika de Silva
The rift between Muslim leaders Rauf Hakeem and Ferial Ashraff widened yesterday while questions also remained about Minister Hakeem's position in the government despite crisis talks with President Kumara–tunga on Friday night.

A tough and defiant Mr. Hakeem called a news conference yesterday to insist that his leadership of the Sri Lanka Muslim Congress was unchallenged and that his parliamentary group would back him. 

He said his emergency talks with President Kumara–tunga were centred mainly on Minister S. B. Dissanayake's recent remarks which the SLMC viewed as an attack on the dignity of the party.

Mr. Hakeem made no bones in saying that his party would vote in favour of the motion submitted by the opposition against Minister Mahiepala Herath who is being accused of instigating violence in Mawanella. 

Showing himself to be open regarding the no-confidence motion against the government, Mr. Hakeem said he could be pursuaded on this matter by either side. 

He said many in the government feared that if his party supported the opposition-sponsored no-confidence motion, the Government was almost certain to crash.

He also made it clear that his party would resist moves by the Supreme Court to prevent the Speaker from appointing a committee to investigate the impeachment of the Chief Justice.

Mr. Hakeem called the news conference at the Galadari yesterday in the aftermath of serious incidents where demonstrators stoned his Kollupitiya residence protesting against the exclusion of Ferial Ashraff and Water Board Chief M. L. A. M. Hisbullah from the SLMC politburo.

About 300 demonstrators believed to be mainly from the East first protested outside the SLMC Colombo headquarters Darussalam on Friday night and then moved to Mr. Hakeem's residence as the crisis within the party and its overall relationship with the PA worsened.

Reports said more demonstrations would be held in the eastern province during the next few days as the power struggle between Mr. Hakeem and Ms. Ashraff intensified.

In recent weeks, Mr. Hakeem has been taking a tough line in relation to the government and demanding that the promises made to the SLMC be honoured. But the faction led by Ms. Ashraff and coming largely under the umbrella of the National Unity Alliance — a broader front of the SLMC — has been more accommodating with the government and is known to have the backing of President Kumaratunga in the internal party battle.

Mr. Hakeem said yesterday that after Friday night's incidents, his relationship with Ms. Ashraff had deteriorated.

But he had a stronger message for the government.

"Do not mess up with our party .Do not use agents for protests," Mr. Hakeem said in an apparent reference to government leaders who were backing Ms. Ashraff.

"We will not continue in this government if the dignity of our party is attacked," Mr. Hakeem said referring to recent remarks by Minister S. B. Dissanayake who labelled the SLMC as a communal or extremist party. 

Mr. Hakeem said his party founder M. H. M. Ashraff would have demanded an apology from Mr. Dissanayake as he did in last year's battle with Minister A. H. M. Fowzie.

Mr. Hakeem said that no body believed that the PA came in with a clear mandate, because of the election malpractices. 

"If we had independent commissions for elections, we won't have a PA government today," he said referring to the opposition demands for the setting up of independent commissions on elections, the police, the public service and the judiciary.

Soon after the October elections, the SLMC had said it would pull out of the government if the commissions were not set within 100 days. 

The government later agreed to appoint parliamentary select committees to look into the setting up of these commissions and Mr. Hakeem was to be the chairman. 

But the SLMC leader said yesterday that this post was not given to him. Mr. Hakeem said the current controversy regarding the setting up of a separate administrative district in Kalmunai had only been briefly touched on during Friday's talks with the President. The government had earlier agreed to set up this new district, but later appointed a committee to study it.

In a surprise move, a government communiqué issued on Friday said Kalmunai was being raised to the status of a Municipal Council but it was not clear that this compromise would be acceptable to the SLMC.


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