17th June 2001
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Motion on CJ: a legal action in crisis

By Victor Ivan
There is a saying that how a state metes out justice is an indication of the level of civilisation of that state. The contents of the impeachment motion against the chief justice, and the manner in which power is being used to abort that impeachment, show how uncivilised the affairs in the country are.

When there was an impeachment motion against Chief Justice Neville Samarakoon in 1984, he faced it fearlessly. Judges and lawyers were not persuaded to act in his favour. 

In the present crisis, it is not only judges and lawyers bodies that are coming forward in the defence of the Chief Justice, but also politicians of the ruling party who are trying to adopt resolutions expressing their confidence in him. These moves cast an aspersion on the Chief Justice and give rise to speculation that slurs the dignity of the position he holds.

It was Minister G.L. Pieris who proposed to the government's parliamentary group that a resolution backing Mr. Silva be adopted. 

There were two cases which could have a decisive effect on his political life being heard before Mr. Silva.

As regards the Bar Council resolution, it was President's Counsel Akram Mohamed who moved it, asking the Speaker to refrain from appointing a select committee to inquire into the impeachment motion, until laws were passed to set up a judicial body to go into the motion. Mr. Mohamed was the lawyer who appeared for Mr. Silva in the adultery case filed by Engineer Jayasekera against Mr. Silva. 

Two of the three lawyers who moved the Supreme Court against the process of impeachment, too, were connected to Mr. Silva and allegedly owed their loyalty to him. 

What Attorney General Kamalasebeyson said repeatedly in the case filed against the appointment of Sarath Silva as Chief Justice, too, was relevant in the present context. He said the judiciary had no power to remove a Chief Justice from his post, and the only constitutional avenue available for the purpose was impeachment. 

An inquiry by a select committee is not equal to a judicial process. It is like a disciplinary inquiry conducted by any institution. Although a select committee can find the Chief Justice guilty or not guilty to charges placed before it, it cannot send him to prison. 

Although there is a special institution for the disciplinary control of judges of lower judicial institutions, there is no institution at all for disciplinary action in connection with judges of higher courts. That has been made so because there must be an atmosphere in which judges of the higher courts are able to act independently. The only institution to which a complaint can be made against a judge of a higher court is parliament.

The case filed against the impeachment motion is one filed for the purpose of protecting the Chief Justice. His appointment of a panel of judges for the purpose of hearing a case filed against him cannot be correct by any means. 

What the Chief Justice could have done was to appoint a full bench of nine judges so that there would be no room for doubt, or to get the President to appoint another Chief Justice for the limited purpose of hearing that case against him, as provided for by Section 169(1) of the constitution. Instead the Chief Justice appointed a bench of three judges selected by himself. 

When the entire process of filing the case, appointment of a bench, and getting an immediate injunction is considered, it can be considered a legal action carried out to protect the Chief Justice, probably with the patronage of the executive. That the judiciary has no power to issue orders in relation to the internal processes of parliament is not a matter of dispute but one that is well established and accepted. However, the panel of judges not only permitted further speedy inquiry into the petition, but also gave an interim injunction restraining the Speaker from appointing a select committee. 

Surprisingly, the lawyer who appeared for the Attorney General's Department not only appeared for two different institutions (the Speaker and the Secretary to the President), but also refrained from objecting to the interim injunction an unprecedented move in the legal history. 

However, he had appeared for the Speaker even without a proxy from him.

Did the planners of this legal action envisage that the government would accept an order given to parliament by the Supreme Court for the protection of the Chief Justice? If so their assessment was not correct. There were some PA MPs who realised that this was an attempt to strangle parliament through the judiciary. 

Because their voice was added to the opposition's voice of protest, the action appears to have failed.

However, it led to a conflict between parliament and the judiciary and to a larger constitutional crisis. 

The writer is the Editor of Ravaya

Focus on RightsPushing legitimacy beyond limits

A very wise judge of the United States once reminded his people that they should not rest their hopes too much upon constitutions, laws and courts (and now presumably Standing Orders as well.) Judge Learned Hand's point however was that liberty, truth and conscience lie in the hearts of men and women. Once that dies, no constitution, no law and no court can save it.

In Sri Lanka, as this month's tussle between Parliament and the courts over the impeachment process of the country's Chief Justice wends its truly bizarre way, truth if not conscience certainly seems to have died in the hearts of those men and women responsible for this constitutional emergency. Time and time again since independence we have stood constitutional fundamentals on their head when a particular political contingency had arisen. Each time, we have pushed the limits of legitimacy just that little bit further, though always with a certain measure of sophistication. This time around however, the constitutional transgression that occurred last week is beyond the pale besides being quite unforgivably crude.

Are these harsh indictments really deserved? Let us soberly examine the exact nature of this continuing constitutional emergency. The applicable constitutional provisions (Articles 107(2) and (3)) relating to the impeachment of a Chief Justice are, by now, fairly well known. In brief, they provide for the removal of judicial officers by an order of the President made after an address of Parliament supported by a majority of the total number of parliamentarians has been presented to the President for removal on the ground of proved misbehaviour or incapacity.

The rub is where they state that Parliament shall, by law or by Standing Orders, provide for the procedure relating to the presentation of such an address, including the procedure for the passing of such resolution, the investigation and proof of the alleged misbehavior or incapacity and the right to be heard.

Under this provision, Parliament chose to decree by Standing Orders and not by law in 1984, that once a resolution for the removal of a judicial officer is placed on the order paper, a Select Committee will be appointed which, upon the conclusion of its inquiry, will submit a report to Parliament consequent to which, if Parliament passes the address required for removal, the same will be conveyed by the Speaker to the President.

The manner in which this Standing Order (78A) was adopted in 1984 was, of course, unscrupulous political expediency at its best. The context however, was wholly different. Then, the sitting Chief Justice incurred the wrath of the Government by making remarks critical of the administration during the course of a public speech. He suffered the indignity of being called before a Select Committee, which concluded on party affiliations that, though he was not guilty of 'proved misbehavi-or', his conduct amount-ed to a serious breach of convention. This sorry spectacle reflected in a tremendously negative manner on the Jayewardene administration rather than then Chief Justice Neville Samarakoon. Activists then began calling for a radical overhaul of the manner in which a judicial officer could be removed. The reason why the Select Committee procedure was unconstitutional was very simple. Whether a judicial officer was guilty of 'proved' misbehavior or incapacity and coming to a determination therein was an exercise of judicial power which Parliament was not equipped to handle nor constitutionally permitted to engage in. Article 4 of the Constitution provides that Parliament shall exercise the judicial power of the people through courts, except in respect of its own privileges. Even in that latter context, it is arguable that this may involve the interpretation of questions of law, which only a court could inquire into.

It followed therefore that the determining of the misconduct of a judge could only be by an independent judicial tribunal, consequent to which Parliament may vote on his or her dismissal. At that time, though the minority of the members of the Select Committee called for the constitutionality of the action to be referred to the Supreme Court for an advisory opinion, this request was wholly ignored by President J.R. Jayewardene. Instead, we had the absurdity of the Select Committee upholding its own legitimacy and worse, taking upon itself to examine the constitutionality of Article 4 of the Constitution.

Nevertheless, continued lobbying for security of tenure of judges had its results. Thus, the 2000 Draft Constitution provides that proof of judicial misbehavior in the case of a Chief Justice must be found by a committee consisting of three persons, each of whom has held or are holding office as the judge in the highest court in any Commonwealth country. In the case of all other judges of the appellate courts, a similar responsibility is vested in a three member tribunal of persons holding or who has held office as appellate court judges. It is only after such a finding that the parliamentary process of removal comes into play.

While this is all well and good, as any first year law student would know, agitating for changes in the law and procedure relating to the removal of a judge belongs strictly in the political and activist arena, in which it remained until the month of June 2001. This was when in an unparalleled move in the constitutional history of this country and indeed, any other country, the question of outright change in the practice of parliamentary procedures was brought to the courts. Thus, we witnessed three petitioners inviting the Supreme Court to rule that Standing Order 78 A was unconstitutional on the common argument outlined above, that it does not provide for the essentials of a fair inquiry and permitted arbitrary action on the part of the Select Committee. They contended therefore that the Select Committee appointed thereunder would result in the violation of the petitioners' rights to equality, freedom of expression, freedom to engage in a profession and the basic right to invoke the fundamental rights jurisdiction of the Supreme Court. The hasty and secretive and wholly unsavory manner in which these petitions were filed and argued before the Court, is now public knowledge. As incredible however is the manner in which the petitioners cross the line from legal to political argument, challenging what is essentially legislative action as executive and administrative action in what is a consummate flouting of the essentials of constitutional democracy not to mention the basis on which the Constitution permits recourse to fundamental rights litigation.

Strange therefore that eminent counsel made such arguments, strange that the Attorney General was gracious enough to concede and stranger still, with all due respect, that these arguments were accepted by a court which then went on to award interim relief restraining the Speaker from appointing a Select Committee of Parliament under Standing Order 78A. 

As Alice in Wonderland would have aptly remarked, things could not have got more curioser, specially if one takes into account the fact that not even one week prior to this whole furore, the main preliminary objection of the Attorney General in opposing ongoing fundamental rights litigation over the appointment of Chief Justice Sarath N. Silva in 1999, was that the impeachment of a Chief Justice was a matter that should be left in the hands of Parliament. The Attorney General took this stand on the reasoning that there could not be recourse to fundamental rights litigation where a specific constitutional provision provided for the applicable procedures. Why then this sudden volte face where the instant petitions were concerned? Indeed, this was all that was needed to complete the honest bewilderment of any concerned citizen contemplating the whole.

As the country awaits the Speaker's ruling on the Supreme Court order, what is clear is that this is a constitutional emergency that manifestly ought not to have occurred. The studied silence of civil rights bodies on the continuing constitutional crisis is also inexplicable. Doubtless though, the train of events set into motion this month by these three petitions will continue in its own distasteful way and whether the relevant Standing Order would be amended is now a question of some concern. If that does happen, the wheel would have turned full circle from the hasty amendment of the procedures in 1984 by a government eager to impeach a Chief Justice critical of the government to a similarly hasty amendment of the procedures in 2001 by a government equally eager to prevent the impeachment of a Chief Justice popular with the government. And we will proceed, as always, on our own peculiarly feverish course of politically instrumental 'reform' of crucial laws and procedures.

Whatever the coming days may hold however, what is certain is that we are now firmly assured the position of an 'idiot child' of the Commonwealth as far as fundamental tenets of constitutional democracy are concerned. And for a nation that once lay claim to solemn legal traditions of the highest dignity, this cannot but be an inescapably tragic fate.

Point of view

And now, a case for a Vedda District

Give back what was taken from them

"The Lion and the Sword" an ethnological study by Ariff Hussein launched on May 26 at the Mahaweli Centre under the auspices of the Royal Asiatic Society Sri Lanka is the first part of a two volume multi-disciplinary inquiry into the origins and development of Sri Lanka's races, languages, cultural traditions and social institutions. As should be expected, chapter 1 of the study, primarily deals with the Veddas.

There is no denial of the fact that Veddas belonged to an early human group that found its way into the island and made it their domain. According to Hussein "the Veddas appear to have had a long settlement in the island, for there exists considerable evidence to connect them with the folk of the Balangoda culture which seems to have existed about 6500-3000 years ago." There also seems to have existed some cultural similarities between the Veddas and the Balangodans. Thus the Veddas could claim a better prescriptive right to the island than any other ethnic group.

Over the centuries Veddas have degenerated physically, culturally and numerically as has happened to many aboriginal communities in the world. There are reports even to say that certain ethnic groups cruelly persecuted and tried to exterminate the Veddas. Consequently their numbers have declined and according to the Census Report of 1946, the population of Veddas which was 5332 in 1921 had declined to 2361 in 1946. (The Census Report of 1981 does not even mention the Veddas) 

However, at the same time, Hussein points out, that there is evidence to show that settlements of those mixed-breed folk who have continued to call themselves Veddas have in fact increased in certain areas since the latter part of the 19th century. Thus although R.W. Ievers enumerated only 25 Vedda villages in the North Central Province, seven decades later, James Brow whose study was based on two years of field research from 1968 - 1970 enumerated over 40 Vedda villages in Anuradhapura district alone. The Seligmanns in 1911 defined the Vedda country as comprising "the greater part of the Eastern Province, about a fifth of Uva and a small portion of that part of the North Central Province known as Tamankaduwa". It is very likely that in former times, the ancestors of the Veddas occupied Sabaragamuwa as well. 

According to Hussein social relationship between them and the Sinhalese had since ancient times been cordial. Inspite of this relationship they have maintained their social, cultural, and even physical identity todate. The social values they have maintained over the centuries should be the envy of the modern day societies. 

For example Hussein says, "The Veddas appear to have recognized equal proprietary rights for both males and females." He goes on to quote Seligmann, "In every respect the women seem to be treated as the equal of the men " and adds "the Veddas are also known to have been very faithful to their spouses." This time he quotes another authority on Veddas, Dr. Spittel who says, "as a rule their sexual morality is high. They are monogamous and conjugally faithful."

Inspite of their ancestry, social and moral values, separate identity and traditions Veddas are a forgotten lot. It is time that the Government and society at large recognize their social, cultural and physical identity even at this late stage and make amends for the grave lapses in the past.

The attitude of the world towards aborigines and depressed communities is fast changing as can be seen in Europe towards the gypsies and the aborigines in Australia. 

According to a special article on gypsies appearing in the Economist of May 12 this year, the Czech and Hungarian Governments and many citizens too are committed to improving matters. For the first time a gypsy has been elected as the Mayor in a small town in Czech, recently. In Peru an indigenous Indian has been elected as the President.

The best way that amends could be made for the past lapses to Veddas is by creating a separate district for them. This is in keeping with the recent proposals by certain groups to carve out separate districts to preserve their ethnic and religious identities. Unfortunately the Veddas have no spokesman or leader as is common to most depressed communities. Their numbers do not command a vote bank. The map copied from Hussein's book shows Vedda settlements. 

They fall mainly in the Batticaloa and Ampara Districts. I do not propose how the new district could be carved out. I leave that to the bureaucrats of the Ministry of Home Affairs.

Hussein describes the Veddas as simple, humble, and strong willed sons and daughters of the soil. In carving out a district for them the nation will be providing a platform for them to take the first step in safeguarding their identity and deciding their own destiny.

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