Justice At Crossroads »
Monday, January 07, 2013
The Supreme Court decision that the Parliamentary Select Committee (PSC)
appointed in terms of Standing Order 78A has no legal power or
authority to make a finding adversely affecting the legal rights of a
judge without a definite finding that the allegations have been proved
and that no address of parliament could be made for the removal of a
judge, does not appear to be acceptable to parliament. The Appeal Court
announced the decision of the Supreme Court Divisional Bench. This
ruling goes against the expected address by President Mahinda Rajapaksa
on the PSC decision, which found Chief Justice Dr Shirani
Bandaranayake guilty of certain allegations and recommended that she be
dismissed from the post of Chief Justice.
Following the ruling of the Supreme Court, Deputy Speaker Chandima Weerakkody has said that the court ruling regarding the issue would not be binding on Parliament. The Deputy Speaker addressing the media had said that the Speaker Chamal Rajapaksa had ruled that no external pressures could infringe parliamentary powers and privileges dealing with the Select Committee process.
The debate on whether the Supreme Court could make a ruling on decisions made by the PSC and whether the parliament is bound to accept such a ruling has been an issue of national debate both in legal circles as well as the public. On Thursday, while the announcement of the Supreme Court was being awaited, there were public meetings held in Colombo on the issue such as by trade unionists supporting the ruling UPFA coalition. The country appears to be deeply polarized on the issue and the two sides are like two trains running on parallel tracks with no end in sight.
Vital questions arise on the consequences of parliament refusing to accept the rulings of the supreme legislature of the country and the fallout of the possibility of this ruling on non-acceptance of the Supreme Court decisions being followed by the public. The judiciary interprets the law of the land formulated by the legislature and non-acceptance of such rulings could lead to extreme chaos. This kind of confrontation does not usually occur in recognized democracies and is avoided by parties concerned.
In countries that follow democratic traditions and conventions, wiser counsel prevail. Acceptance of advice by authoritative and respected personalities who intervene in the interests of the welfare of the nation is a usual practice although often not made public. A nation needs venerable senior advisers who have achieved eminence in their respective fields and are considered statesmen. There has been the remarkable absence of such people who are considered statesmen since the early 1970s. Today strongmen prevail over statesmen.
While the crisis was building up and the legislature was preparing to lock horns with the judiciary, there appeared to be no restraint placed on those abusing members of the judiciary even in journals and other media controlled by the state.
This sad state of affairs was perhaps inevitable in considering the ways in which the executive, legislature and the judiciary have conducted themselves over the years. In the pre 1970 days senior members of the judiciary, legal profession and even legislature had sane and sober individuals who would not have permitted escalation of the confrontation between the three arms of government to the extent of the present disgraceful levels. Maverick Felix Dias Bandaranaike commenced the rot with political appointments to the judiciary. The then government assumed the role of a village thug conducting themselves on the principle of the power of the majority of the two-thirds in parliament. Anything done with a two third parliamentary majority in the political interests of the government was law and this erroneous concept of justice still seems to be a hangover. Properties of innocent were taken over, political opponents ridiculed and punished. Leading legal luminaries now conferred with sanctity of epitomes of justice destroyed long-standing institutions of the country. Today, in their dotage some of them write to papers now in defence of human rights.
The sovereign people overthrew that corrupt and chaotic government giving J. R. Jayewardene a five-sixth majority. His supporters soon after victory went on the rampage and the leader himself added fuel to the rising fires. Judges were sacked en masse, their houses stoned and the riots continued only to be picked up by the Rajapaksa administration. Victory in ‘war’ made them heroes but what follows is certainly not heroic. This complex of a two-third majority conferring near divine powers is today at the root of all evil.
Today Mahinda Rajapaksa has the enhanced executive powers, which were conferred on him by parliament as well as the parliament at his command.
In the 17th Century Louis XIV of France declared: L’Etat Cest Moi – I am the state. He wanted to be absolute ruler of France and to control France without anyone’s help. Things are different in today’s world where absolute power is rejected. Francois Hollande, who became French Prime Minister recently, had the plank for election the taxing of the super rich. Two weeks ago France’s constitutional court, Conseil Constituionale, struck down the law proposing a 75 per cent income tax on the wealthiest people. Hollande however is not an absolute ruler and would now have to bow down to the decision of the court.
The ongoing Sri Lankan constitutional crisis should not be viewed as a battle of egos. It would only be destructive to the country and self destructing to the dramatis personae as well. The essential objective should be to ensure that justice is being done to the Chief Justice.
If the government believes in the allegations made against her, it could still be done in a fair trial where the principles of natural justice are observed. A way out should be sought to settle the dispute with wise counsel. While the legislature is supreme in the legislative sphere, it is not in the dispensation of justice. The conduct of some representatives within the walls of their own chamber would have disqualified them from being judges.
Following the ruling of the Supreme Court, Deputy Speaker Chandima Weerakkody has said that the court ruling regarding the issue would not be binding on Parliament. The Deputy Speaker addressing the media had said that the Speaker Chamal Rajapaksa had ruled that no external pressures could infringe parliamentary powers and privileges dealing with the Select Committee process.
The debate on whether the Supreme Court could make a ruling on decisions made by the PSC and whether the parliament is bound to accept such a ruling has been an issue of national debate both in legal circles as well as the public. On Thursday, while the announcement of the Supreme Court was being awaited, there were public meetings held in Colombo on the issue such as by trade unionists supporting the ruling UPFA coalition. The country appears to be deeply polarized on the issue and the two sides are like two trains running on parallel tracks with no end in sight.
Vital questions arise on the consequences of parliament refusing to accept the rulings of the supreme legislature of the country and the fallout of the possibility of this ruling on non-acceptance of the Supreme Court decisions being followed by the public. The judiciary interprets the law of the land formulated by the legislature and non-acceptance of such rulings could lead to extreme chaos. This kind of confrontation does not usually occur in recognized democracies and is avoided by parties concerned.
In countries that follow democratic traditions and conventions, wiser counsel prevail. Acceptance of advice by authoritative and respected personalities who intervene in the interests of the welfare of the nation is a usual practice although often not made public. A nation needs venerable senior advisers who have achieved eminence in their respective fields and are considered statesmen. There has been the remarkable absence of such people who are considered statesmen since the early 1970s. Today strongmen prevail over statesmen.
While the crisis was building up and the legislature was preparing to lock horns with the judiciary, there appeared to be no restraint placed on those abusing members of the judiciary even in journals and other media controlled by the state.
This sad state of affairs was perhaps inevitable in considering the ways in which the executive, legislature and the judiciary have conducted themselves over the years. In the pre 1970 days senior members of the judiciary, legal profession and even legislature had sane and sober individuals who would not have permitted escalation of the confrontation between the three arms of government to the extent of the present disgraceful levels. Maverick Felix Dias Bandaranaike commenced the rot with political appointments to the judiciary. The then government assumed the role of a village thug conducting themselves on the principle of the power of the majority of the two-thirds in parliament. Anything done with a two third parliamentary majority in the political interests of the government was law and this erroneous concept of justice still seems to be a hangover. Properties of innocent were taken over, political opponents ridiculed and punished. Leading legal luminaries now conferred with sanctity of epitomes of justice destroyed long-standing institutions of the country. Today, in their dotage some of them write to papers now in defence of human rights.
The sovereign people overthrew that corrupt and chaotic government giving J. R. Jayewardene a five-sixth majority. His supporters soon after victory went on the rampage and the leader himself added fuel to the rising fires. Judges were sacked en masse, their houses stoned and the riots continued only to be picked up by the Rajapaksa administration. Victory in ‘war’ made them heroes but what follows is certainly not heroic. This complex of a two-third majority conferring near divine powers is today at the root of all evil.
Today Mahinda Rajapaksa has the enhanced executive powers, which were conferred on him by parliament as well as the parliament at his command.
In the 17th Century Louis XIV of France declared: L’Etat Cest Moi – I am the state. He wanted to be absolute ruler of France and to control France without anyone’s help. Things are different in today’s world where absolute power is rejected. Francois Hollande, who became French Prime Minister recently, had the plank for election the taxing of the super rich. Two weeks ago France’s constitutional court, Conseil Constituionale, struck down the law proposing a 75 per cent income tax on the wealthiest people. Hollande however is not an absolute ruler and would now have to bow down to the decision of the court.
The ongoing Sri Lankan constitutional crisis should not be viewed as a battle of egos. It would only be destructive to the country and self destructing to the dramatis personae as well. The essential objective should be to ensure that justice is being done to the Chief Justice.
If the government believes in the allegations made against her, it could still be done in a fair trial where the principles of natural justice are observed. A way out should be sought to settle the dispute with wise counsel. While the legislature is supreme in the legislative sphere, it is not in the dispensation of justice. The conduct of some representatives within the walls of their own chamber would have disqualified them from being judges.
