Ranil’s Silly Statements And Dismissing The CJ By Hook Or By Crook
S.L.Gunasekara
A Requiem For The Rule Of Law
The Court of Appeal, following the interpretation of the Constitution given by the Supreme Court has quashed by way of Certiorari the findings of the Parliamentary Select Committee.
Many are the statements made by members of the Government as well as by the leader of the purported Opposition, Ranil Wickremesinghe who are possessed of over-inflated egos instead of intelligence, to the effect that Parliament being supreme, no finding or verdict of a Court would apply to it. I have little doubt that Parliament will now proceed to go ahead with the purported resolution for the impeachment of the Chief Justice and dismiss her from office.
That would be a sad day for Sri Lanka for it would herald the murder of the Rule of Law by the Government which is bound and obliged to maintain, sustain and nourish it. It would indeed be comparable to a mother murdering an infant child.
The pronouncements of Members of Parliament that Parliament is supreme are not based on any provision of the Constitution – for there is no provision of the Constitution which provides for the alleged supremacy of Parliament. While the Constitution provides that sovereignty resides in the people there is no comparable provision which vests supremacy in Parliament. In these circumstances it is evident from the Constitution itself that the framers thereof did not for a moment conceive of Parliament being supreme or vest such supremacy in Parliament. So important a concept as the ‘supremacy in parliament could not, in my view, be vested by implication and/or inference but only by an explicit statement to the effect that Parliament is sovereign or supreme. Indeed, such a concept could not exist side by side with the explicit statement that sovereignty resides in the people.
It is also pertinent to consider Article 12 of the Constitution in terms of which all persons are equal before the law and entitled to the equal protection of the law. This provision applies equally to all citizens whether they are Members of Parliament or not.
It is trite law that where the Court of Appeal quashes a finding or determination by any Court or other body (which includes a purported Select Committee) such quashing renders such finding and/or determination null and void and of no effect in law for all purposes unless it is set aside by the Supreme Court. Thus, the only lawful means of seeking to nullify the effect of the said finding of the Court of Appeal is to appeal there from to the Supreme Court in terms of the Constitution. However, judging from the aforesaid nonsensical and totally idiotic statements made by various Members of Parliament, it is evident that no such appeal will be made.
The attitude of the Government, abetted as I have mentioned earlier, by the silly statements made by the purported leader of the purported Opposition Ranil Wickremesinghe, will be to press on with their stupid and anti-national endeavour to dismiss the Chief Justice by hook or by crook, and that can only result in a state of anarchy setting into the country because it follows that if Parliament which is not vested with any kind of immunity from the decisions of any Court, can proceed to ignore a finding of the Court of Appeal, so also can the people ignore the orders and findings of all Courts.
One can well visualize the absolute chaos and disorder that would result if the people of this country follow the putrid example that will probably be set by Parliament by disobeying the orders of Court on the ground that in their view those findings were erroneous in law. The only institutions that are vested by law with jurisdiction to determine whether a finding of a Court of law is erroneous, whether in Law or otherwise, are the superior courts and not any individual be he/she Member of Parliament or not. In these circumstances one does hope and pray (if one believes in prayer) in the National Interest, that wiser counsel will prevail and that Parliament will refrain from proceeding with the purported resolution for the impeachment of the Chief Justice.
Rajapaksa’s Second Choice: Corrupt Justice Hettige As Acting CJ ?
Uvindu Kurukulasuriya
“The independence of the Judge is dependent on and is linked to the question of his moral integrity. His knowledge of the law and his skills in legal reasoning and analysis in the process of adjudication, though very desirable, are in a sense secondary and of less importance. An honest mediocrity is to be preferred to a clever crook when it comes to the act of judging. Intellectual dishonesty in adjudicating though often hard to demonstrate is to be deplored, while moral depravity and corruption of any sort are wholly outside the pale and must be condemned without equivocation,” - President’s Counsel H. L. de Silva addressing the Conference of the Independence of the Judiciary, August 25, 1999 –BMICH
There is currently a prevalent sense of grave concern and apprehension, one may even say an angst among a section of the legal community that the deeply cherished values of judicial independence and moral integrity among judges are under serious threat and in a state of crisis. Over the years the foreshadowed dangers have increased in intensity and have now reached a critical point.
Sometime back, we raised serious issues affecting the integrity of the Sri Lankan judiciary. We raised the issue of the appointment of retired Chief Justice Asoka de Silva as Senior Legal Advisor to the President. Today the Chief Justice, tomorrow an advisor to a controversial head of the state. What does this imply? Where is the integrity of Sri Lanka’s judiciary?
We raised the serious conflict of interest issues relating to the present Chief Justice. We wanted the Chief Justice to answer how her husband was appointed Chairman of Sri Lanka Insurance Corporation, and to the Lanka Hospitals Corporation PLC as a member of its Board of Directors. How was he also appointed as Chairman of the National Savings Bank? Had he applied for the job? Was he interviewed? Who were the other applicants? Were there qualified applicants other than her husband?
At the end, Chief Justice Shirani Bnadaranayaka is impeached unlawfully, without giving her a fair trial. Tonight or soon she will be removed by force. Rajapaksa’s first choice is to appoint corrupt former AG Mohan Pieris as CJ. To do this he is going to appoint his second choice CJ as acting CJ. The plan is to appointSathya Kada Hettige as acting CJ, then Mohan Pieris as the Chief Justice. The Colombo Telegraph hasalready exposed Mohan Pieris’s misconduct.
Sathya Hettige, who had changed his name after leaving the university, was nominated for an appointment of a Court of Appeal, but on both occasions, the Constitutional Council rejected it on the basis of inefficiency. However when the Constitutional Council was abolished, he was directly appointed as the President of Court of Appeal by the President. Then to the Supreme Court.
He invited President Rajapaksa to his daughter’s wedding, where the President signed as a witness and stayed more than one hour at the wedding ceremony. When Sarath Fonseka challenged his Court Martial in the Court of Appeal, this matter came to light, and Fonseka’s counsel Romesh De Silva P.C., objected to Hettige sitting in the case, since the President appointed the Courts Martial against Sarath Fonseka. But the objection was overruled and Sarath Fonseka’s writ applications were also rejected.
The International Bar Association’s minimum standards on judicial independence, at clause 44 says, “A judge shall not sit in a case where there is a reasonable suspicion of bias or potential bias.”
Hettige has also been the subject of serious criticism over accepting ruling party nomination papers despite alleged procedural errors, and rejecting opposition nomination papers for local government elections.
I also drew attention to the new tradition of judges inviting politicians to parties. Justice Sathya Hettige invited President Mahinda Rajapaksa, his brother Minister Basil Rajapaksa, and the Prime Minister D. M. Jayaratne and some other politicians to celebrate his promotion to the Supreme Court.
Hettige is also a Judge of the Supreme Court of Fiji, which is under a military dictatorship. The main issue here is the impact his Fijian job has on Justice Hettige when he is sitting in the Supreme Court at Hulftsdorp. Can we expect justice and independence from servants of military dictators? What is their judicial mentality? What is their ethical compass in relation to the judicial function? What principles of judicial independence do they adhere to? Do they make a distinction between their Sri Lankan and Fijian judicial roles? Can someone serving under a foreign military dictatorship, legitimately and credibly, sit at the same time on the bench of the Supreme Court of Sri Lanka? What can be expected of judges in Sri Lanka who serve a military dictatorship elsewhere?
Some would say there is no difference between a military dictatorship in Fiji and an elected dictatorship in Sri Lanka. But others still have a hope about Sri Lanka’s Supreme Court and the judiciary, because there are still judges who have been forthright and dispense justice without fear or favour.
Justice Sathya Hettige must explain why he invited President Rajapaksa to his daughter’s wedding to sign on behalf of their family, it being unlikely that Rajapaksa imposed himself as a witness. What is his relationship with the President? Is it appropriate that a Supreme Court judge should continue to have personal and social relations with the executive branch, especially of a government whose behaviour is extremely questionable from the viewpoint of democracy and the Rule of Law? Why is he going to work under the Fiji military dictatorship? How does his Fijian experience influence his high judicial role in Sri Lanka? Did he not compromise his integrity and independence with the President when he got permission to go to Fiji?
If President Rajapaksa is going to appoint Hettige as the acting Chief Justice he and his government must answer the above questions.
I hope those who criticised Chief Justice Shirani Bandaranayaka will do the same about Sathya Hettige’s misconducts!!
