Impeachment Of The Chief Justice – The Charges
Chandra Kumarage
Some Members of Parliament of the United Peoples Freedom Alliance (UPFA) have submitted an Impeachment Motion against the Chief Justice (CJ) to the Speaker of Parliament and the Speaker has decided to appoint a Select Committee to inquire into and report to Parliament on the charges contained in the Impeachment Motion. By evaluating the list of charges contained in the Impeachment Motion, the second and third charges are criminal offences triable by a competent, independent and impartial court, as provided for inArticle 13(3) of the Constitution which stipulates that any person charged with an offence shall be entitled to be heard, in person or by an attorney at law, at a fair trial by a competent court. Moreover Article 13 (5) mandates that every person shall be presumed innocent until he is proved guilty and Code of Criminal procedure Act No. 15 of 1979 stipulates that all criminal trials should be conducted publicly. The State media has already pronounced the respondent CJ guilty of all charges in the impeachment and the hallowed principles of the presumption of innocence guaranteed in the Constitution of Sri Lanka and the principles of Natural Justice have been put to the back burner.
It is submitted that the charge number two in the motion is very vague non sustainable in any tribunal conducting a fair trial.
The charges , three, four and five in the impeachment motion are essentially criminal and allegedly have been committed in her personal capacity as an individual and not either abusing or misusing her power as the CJ. Those are ex facie serious criminal charges falling under the Penal Code or other penal provisions of law, the complexity and legality of which could only be comprehended and adjudicated by a competent court comprising trained judges who are capable of handling such cases.
Even charge number one in the Motion , although it appears to be a serious charge, it is not alleged that respondent CJ had abused her powers as the CJ in adjudicating the fundamental rights cases referred to in the said charge. It can be easily inferred that had there been evidence to that effect the framers of the impeachment motion who should presumably have been experienced lawyers would have specifically stated so therein. There is also no evidence of allegation that the property has being purchased below the market value. It is submitted that the fundamental rights cases are heard by a panel of three judges of the Supreme Courts. Section 165(1) Code of Criminal procedure Act No. 15 of 1979 stipulates that a criminal charge shall contain such particulars as to the time and place of the alleged offence as to the person, if any, against whom and as to the thing ,if any, in respect of which it was committed as are reasonably sufficient to give the accuse notice of the matter with which he is charged… and it is submitted that even in an impeachment motion charges have to be framed according to these provisions and the above four charges have been framed so vaguely without giving the essential particulars that should be given as stipulated in that section.
By including these charges in the motion to be adjudicated by lay individuals the majority of whom belong to the complainant party and on whose approval the impeachment was originated, incurably violates the basic principles of criminal and natural justice which state that the accuser must not be the judges of his own case.
It is an essential requisite in the criminal procedure established by law that the information shall be well founded to enable a prosecutor to prefer charges against a suspect the ascertainment of which requires that the statement of the suspect as well as his/her witnesses shall also be recorded. In this instance the charges which are of a criminal nature have been framed against the CJ without taking these mandatory steps. It is also very strange as to how the bank accounts of the CJ were accessed without following the procedure established by law.
It must be remembered that even the International Criminal Court (ICC) which tries war criminals and other offenders on alleged charges of crimes against humanity are afforded a fair trial with all due process guarantees.
