The Parliamentary Select Committee is a mistrial: Annul the impeachment report

The Parliamentary Select Committee is a mistrial: Annul the impeachment report

Jude Fernando-13 Dec, 2012

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Photo courtesy The Hindu

“Bonaparte throws the whole bourgeois economy into confusion, violates everything that seemed inviolable to the Revolution of 1848, makes some tolerant of revolution and makes others lust for it, and produces anarchy in the name of order, while at the same time stripping the entire state machinery of its halo, profaning it and making it at once loathsome and ridiculous.”   (Karl Marx in Eighteenth Brumaire of Napoleon Bonaparte, 1852)

We need an independent committee or a panel of judges not to evaluate the report of the Parliamentary Select Committee report but to examine whether its conduct is consistent with the law and the accepted national and international norms about impeaching judges. The impeachment proceedings so far should be declared a mistrial (i.e. a trial rendered invalid through improper and prejudicial errors in the proceedings leading to a leading to the impossibility of an impartial resolution) because in any civilized society a person cannot be tried twice for the exact same offence.  It’s called double jeopardy.

Typical reasons for a mistrial are the lack of jurisdiction a court may have over the case, improper admittance of evidence or testimonies, misconduct of any individual that prevents due process, a hung jury, or disqualification of a juror, and when legal counsels of the litigants find that unfair statements or comments have been made or crucial evidence or testimonies are not admitted or distorted.  It prevents an innocent person from being tried and tried again and again for the same crime until finally being found guilty by a jury or committee that is unprofessional and corrupt.

What the government has done so far is to impeach the constitution, justice system and parliamentary privilege by ignoring the requests by the Supreme Court to postpone the impeachment proceedings until it hears the petititions against it and violating the conventions and procedure of impeachment of judges in any civilized society.  To make matters worse the government appointed an all male committee, some of whom insulted the Chief Justice with sexist jibes. Rather than taking responsibility for its misconduct, the government now is trying to find ways out of it, and there is no reason to believe that it changes its original motives that lead to the impeachment in the first place. The judiciary’s failure to declare the PSC a mistrial is an insult to the country’s justice system. It will reinforce the very forces that led to the mistrial and set a dangerous precedence for the future.

President’s statement in the Daily Mirror makes it clear that he has his agenda only to satisfy himself:

“I have only to answer my conscience because at the end of the day, I have to be satisfied with the outcome of this report; I have to be satisfied that I have done by job properly. The instructions to appoint a further committee to look into this are my instructions. They aren’t found in a paper or book nor are there a law to it but I will do it in order to satisfy myself.” (12/12/12)

Is it a responsible use of immunity by the President not to take responsibility for the conduct of the PSC? Perhaps, the core problem here is Executive immunity. I think the government was irked by the decision of the Chief Justice on the Divinaguma Bill because the hidden aim of the Bill was to overcome the limitations imposed by the 13^th Amendment on the concentration of power in the hands of the few who currently control the central government.

On other occasions, the President’s attempt to maintain his innocence over the impeachment has several implications. First, the President’s claim runs counter to numerous media reports about his active involvement in expediting the final report of the impeachment proceedings.  Second, it can be said (but not remotely believed) that he absolutely has no control over the 117 ministers who signed the motion, and hence lost control over his political party.  Thirdly, it could be that he has no proper legal counsel to handle delicate issues such as the impeachment.  If these implications are true then one cannot expect that the President has the capability or legitimacy to appoint a credible committee re-try the CJ.  It is not fair to let CJ go through another trial to compensate for the misadventures of the President and his legal counselors.

The impeachment of Chief Justice is not simply about her misconduct, but government attempts to discipline the judiciary to function according to its own parochial agenda.  It needs a judiciary that is obedient and predictable and at the same time to provide legal legitimacy for its agendas.  It also raises questions about responsible use of immunity by the Executive President.  Giving into the government’s attempts to re-start the impeachment is to miss an opportunity to place checks and balances in a country that is rapidly descending into lawlessness, anarchy, disorder, and international isolation.

In fact the appointment of another committee and Panel of judges proposed by is so called Leftist allies may very well be a tack it to distract the protestors and the international pressure. Because this government has learned the benefits of procrastination of its responsibility particularly when it comes to issues that draw international pressure.

CJ should be honored because she willingly participated in the impeachment hearings and had the courage to leave the hearing when the committee lacked civility and professionalism.  And her verdicts in cases against the government demonstrate her professional conduct was not influenced by the government appointing her husband as the Chairman of the National Savings Bank and the fact that she was appointed by the President.

Perhaps, the misadventure of CJ’s impeachment could initiate the long waited spring in Sri Lanka, provided the concerned citizens moved out of the Lipton Circus to the villages and built a mass movement against anti-democratic forces.

Impeachment: Full Text Of The Submissions Made By Kanag–Isvaran P.C. Before SC Today

Kanag--Isvaran P.C.

By Colombo Telegraph -December 13, 2012 

The following submissions made by President’s Counsel Kanaganayagam  Kanag–Isvaran  before the Supreme Court today (13th December 2012) in the petition filed by Chandra Jayaratne seeking a Writ and Constitutional interpretation re impeachment process by the Parliamentary Select Committee;

    S.C. Reference 3/ 2012.

My Lords, it is respectfully submitted, that we are at a critical juncture in the history of our nation.

If I may borrow a phrase from history, “the Babarians are at the gate of the Temple of Justice”. You let them in, they will destroy all that is sacred to us and install in the alter of Justice false prophets.

The Preamble to the Constitution describes the Constitution -

                 “as the SUPREME LAW of the

   Democratic Socialist  Republic of Sri Lanka”

The Constitution is Suprema lex, the paramount law of the land, and there is no organ of State above or beyond it.

Be it the Executive or the Legislature or the Judiciary, it derives its authority from the Constitution and it has to act within the limits of its authority.

The doctrine of the supremacy of the Constitution means:

  “Neither of the three constitutionally separate organs of State

     can, according to the basic scheme of our Constitution today,

          leap outside the boundaries of its own constitutionality assigned

            sphere or orbit of authority into that of the other. This is the logical

                  and natural meaning of the principle of Supremacy of the

                 Constitution”.[1]                        

No one howsoever highly placed and no authority howsoever lofty can claim that it shall be the sole judge of the extent of its power under the Constitution or whether its action is within the confines of such power laid down by the Constitution.

The Supreme Court is the ultimate interpreter of the Constitution and to this Court is assigned the delicate task of determining what is the power conferred on each branch of government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits.

It is for the Supreme Court to uphold the constitutional values and to enforce the constitutional limitations.

That is the essence of the rule of law.

The basic assumption underlying the views expressed above is that each of the three organs of the State – The Executive, the Legislature and the Judiciary has its own orbit of authority and operation. It must be left free by the other organs to operate within that sphere. It is not for one of the three organs of State either to correct or to point an accusing finger at the other merely because it thinks that some error has been committed by the other when acting within the limits of its own powers.

But, if either the Executive or the Legislature exceeds the scope of its powers, it places itself in the region where the effects of that excess should be capable of removal by the Judiciary which ought to redress the wrong done when properly brought up before it.

A scrupulous adherence to this scheme is necessary for the smooth operation of our Constitutional mechanisms of checks and balances.

It implies due respect for and confidence in each organ of our Republic by the other two.

My Lords,

The constitutional function of Your Lordship’s Court is to be the final judge of the constitutionality of all acts purported to be done under the authority of the Constitution and to ensure that the constitutionally circumscribed powers entrusted to the other organs of the State are scrupulously discharged and that they do not transgress the limitations of their own constitutionally  circumscribed powers by trespassing into what is properly the domain of the Judiciary, the other constitutional organ.

When a question arises whether an authority under the Constitution has acted within limits of its powers or exceeded it, it is my respectful submission that it can certainly be decided by the Supreme Court, because every constitutional question concerns the allocation and exercise governmental power.

Indeed, I respectfully submit, that it would be the constitutional obligation of the Supreme Court to do so.

It is for the Supreme Court to uphold the constitutional values and to enforce the constitutional limitations.

Where there is manifestly unauthorized exercise of power under the constitution, it is the duty of the Supreme Court to intervene.

It intervenes only to say what the limits are and whether the limits on the power conferred by the constitution on a particular organ of State have been observed or there is a transgression of such limits.

Indeed it is the constitutional obligation and duty of the Supreme Court to do so.

The wisdom of man has not yet been able to conceive of a government  incapable of mischief. Because in the last analysis a great deal must depend on the wisdom and honesty, integrity and character of those who are in charge of the Legislature and the enlightened and alert public opinion.

My Lords,

The Constitutional scheme indicates that it is only the Members of Parliament acting jointly in the specified minimum number who can bring about the initiation of the procedure for removal of a judge, all other modes and persons being excluded.

Because of the provisions of Article 4(c) the machinery for investigation and proof must necessarily be outside Parliament and not within it.

Proof which involves a discussion of the conduct of the Judge must be by a body which is outside the Parliament.

The word ‘proved’ also denotes proof in the manner understood in our legal system – and in harmony with Article 13(5) – which guarantees the presumption of innocence.

A finding that some fact is proved must, therefore, be the result of a judicial process. That machinery has to be outside Parliament and not within it.

If this be so, it is a clear pointer that the Parliament no role to play till misconduct or incapacity is found proved.

Parliament comes in the picture only when a finding is reached by that machinery outside Parliament, that the alleged misbehaviour has been proved.

This reflects the constitutional philosophy of both the judicial and legislative elements of the process of removal.

The ultimate authority remains with the Parliament in the sense that even if the “judicial forum” records a finding that the judge is guilty of the charges, it is yet open to the Parliament to decide not to permit an address to the President for removal. (The act of removal by the President is an executive act.)

But upon a finding that the judge is not guilty, the legislative element in the process of removal has no further option.

Therefore, the Legislature cannot arrogate to itself through Standing Order 78A – which is not “law” within the meaning of the Constitution, the right to exercise “judicial power’ of the People in violation of Article 4 (c).

The constitutional scheme, seeks to achieve a judicious blend of the legislative and judicial process for the removal of judges of the superior Courts in a civilised manner reconciling the concept of judicial accountability of judges and the values of judicial independence.

The proper forum

It is therefore respectfully submitted that the proper forum

 “…before which the allegations are to be proved, the mode of proof, the burden of proof, the standard of proof  etc., of any alleged misbehaviour or incapacity in addition to the matters relating to the investigation of the alleged misbehaviour or incapacity?” 

should be a forum that is created and established by law as mandated by Article 4 (c) of the Constitution, namely, a forum that can constitutionally exercise the judicial power of the People.

K.Kanag-Isvaran

President’s Counsel

Dated 13^th December 2012

Comments on the views of Rajpal Abeynayake and Nath Amarakoon on judicial review

by Basil Fernando-

December 13, 2012 

( December 13, 2012, Hong Kong, Sri Lanka Guardian) The SLBC programme inappropriately entitled “People’s Power” is continuing with its misinformation campaign against basic principles of constitutionalism. On the programme that aired on the 13th of December, there were amusing misinterpretations of the constitutional history of the United States, as well as of Sri Lanka. The commentator of this programme, Mr. Rajpal Abeynayake, states that the United States Constitution does not enshrine the judicial review doctrine and that it was brought in later. The United States Constitution is based on the basic principles of liberal democracy and the separation of powers; the independence of the judiciary is at the very heart of that constitution. The power of judicial review arises from the principles of the separation of powers and the independence of the judiciary. As articulated in Marbury v Madisionin 1803 by Justice John Marshall, the doctrine of judicial review is based in Article 3 of the US Constitution, which states the independence of the judiciary.

The simple basis of all the constitutional aspects is the recognition of the conflict between the exercises of power and the liberties of the citizen. The task of the judiciary is to protect the liberties of individuals when the power of the state infringes on these liberties. The power of judicial review arises from this duty of the judiciary to protect the liberties of the citizen. The essence of judicial review is to see whether there are any conflicts with the liberties of the individual, and to declare such an infringing law to be null and void and without any binding effect. The concept of the independence of the judiciary will be without meaning if the judiciary has no power to declare a law invalid if such a law infringes on the liberties of individuals.

In France there is a constitutional council, which is above all the organs of the government and has the power of judicial review into the constitutionality of any matter whatsoever. After the Second World War, Germany created their constitutional court, which also holds similar position. This German court was created due to certain limitations of the Weimar Constitution, which led to the emergence of the dictator Adolf Hitler. Prevention of dictatorship is an essential responsibility of the judiciary. Upholding the constitution implies prevention of every attempt to undermine it abolish it altogether. The United Kingdom does not have a written constitution at all; however, judicial review is part of the constitutional principles and tradition of Britain.

In India, Indira Gandhi attempted to amend the constitution in order to limit the powers of judicial review of the Indian judiciary. The Indian Supreme Court defeated this attempt, declaring in historic judgment that the basic structure of the constitution cannot be amended. Kesavananda Bharati (petitioner) against State of Kerala and others (respondents) [All India Reporter 1973 Supreme Court p. 1461]

Thus, Indira Gandhi’s attempt to do what JR Jayewardene succeeded in doing in Sri Lanka was prevented. It is not the abuse of judicial power that the Sri Lankan judges are guilty of. In fact, their fault was that they did not take an adequately bold step to protect their own power. Had they done what the Indian Supreme Court did, Sri Lanka would not be in the terrible mess that it is in now. Any further weakening of judiciary will have disastrous consequences by way of further destruction of the liberties of the citizen.

This radio programme went on to misinform the public that it was JR Jayawardene who introduced judicial review to Sri Lanka. Anyone with even the least acquaintance with the Sri Lankan law would know that the Sri Lankan judiciary has exercised the power of judicial review from its very inception. There are cases that demonstrate this even in the colonial times. The Soulbury Constitution was modelled on the tradition of liberal democracy and incorporated the principles of separation of powers and the independence of judiciary. The judges exercised judicial review and declared many laws illegal on many occasions. The1972 Constitution limited this power of judicial review by prescribing that the constitutionality of a bill can only be reviewed by the judiciary before its promulgation. The 1978 Constitution merely repeated this provision. Thus, the written constitution of 1972 and 1978 did not introduce the power of judicial review, but rather reduced this power and limited it to be exercised within a limited period.

The silly attempts by Rajpal Abeynayake to misinform the public on the history of judicial review in Sri Lanka is a result of the ludicrous position that the commentator has been pushed into in trying to find ways to justify the impeachment process, which has come under severe attack in Sri Lanka, as well as by authoritative statements from important sources such as the Commonwealth Secretariat and Commonwealth Association of Judges and Lawyers, from the United Nations, from Law Asia and from persons of high international repute, including Sri Lanka’s most senior judge C. G. Weeramantry. Had the commentator of this programme paid any attention to the public statement from C. G. Weeramantry, he would not have demeaned himself to publicly uttering such rubbish through this radio programme.

The commentator tried to support his position by citing an article published by Nath Amarakoon in the Daily News. Abeynayake told his readers that the writer is no ordinary person, maybe with the view to give some credence to his views. Amarakoon tried to argue that in the interpretation of laws the judiciary must promote public interest. This is a clear vulgarization of the words public interest. The judiciary’s primary role is to protect the liberties of the citizen. Any legislation that infringes on civil liberties cannot be in the interest of the public. The public means the people and it is not in their interest to have their liberties crushed. George Orwell’s warning about the distortion of words is quite relevant here.

Amarakoon also goes on to state that the Chief Justice is an employee of the executive and therefore should not go against the legislation promoted by the executive. Amarakoon has forgotten that making legislation is not the task of the executive but that of the legislature. He further forgets that the judiciary is a separate branch of the government and the Chief Justice is the head of that branch. If Amarakoon’s prescription that the employee should do what the master wants is carried out, then both the legislature and the judiciary would cease to be independent branches of government. One wonders as to how anyone could promote such a silly idea.

However, both the commentator and Nath Amarakoon seem to believe that the government means the executive, and thus promote an authoritarian form of government and not democracy.

That state media is being used to misinform the public about the country’s constitution itself demonstrates the extent to which power is abused today. If all abuses of power can be justified on the basis of public policy and public interest, then every dictatorship should be held as a model to be followed in Sri Lanka.

The basic assumption in the views of both these gentlemen is that elected representatives are in a superior position than non-elected judges. Such a view could only lead to the makings of dictators brought about through the ballot.

It should also be noted that the judiciary does not review the government’s policies by way of judicial review. It only reviews legislation. There is a vast difference between a policy and a law. People do not obey policies. But when policies are transformed into laws, the people are expected to obey them. At the stage, when policy is transforming into a law, judicial review of such laws ensure that they are in conformity with other laws, and that they do not infringe on the liberties of the citizens.

Principles stand over policies. Policies that violate principles can only bring about catastrophes. Otherwise even Pol Pot would have to be considered a great ruler, because he too believed that his policies would promote public interest; of course, instead of promoting public interest, those policies brought about one of the greatest disasters in human history. Nath Amarakoon is introduced into the program as someone standing for professionalism. It is strange how such a person can divorce policy from principles.

‘Send Me The Proceedings, Minutes And The Final Report Of The PSC Against CJ’ – Sampanthan Urges Speaker

By Colombo Telegraph -December 13, 2012

R Sampanthan, the leader of the TNA says he is yet to receive the proceedings and minutes of the Parliamentary Select Committee inquire into allegations against the Chief Justice.

Writing to the Speaker today, he says; “I have also not been given a copy of the purported report submitted by the government members of the PSC to Parliament on 8^th December 2012. Neither a draft nor final report was made available to me prior to it being tabled in Parliament. Although it is said to have been tabled, the same has not been sent to me yet.”

“Kindly arrange for the above documents to be sent to me at the earliest to enable me to take appropriate action in this regard” Sampanthan urged the Speaker.

Alarming stories from Kilinochchi

12/12/2012

You may have read the statement from the Women’s Action Network (WAN) we released over the weekend. It told the story of how, in order to show the international community that the Sri Lankan Army was no longer entirely Sinhalese, they were forcibly recruiting Tamil women. They did this using a mixture of deception (telling them the jobs were civilian when they were in fact military), preying on the vulnerable (young widows and women who had to provide for seriously ill relatives), and by refusing to allow the women they had conned into signing up from leaving.

It is very concerning. But more concerning still is a story we received from a trusted source this morning. The BBC Tamil service ran the story in Tamil and we are placing the information we received below:

Recent Female Army Recruits Admitted to Kilinochchi Hospital Late Last Night 

• Of the women recently recruited to the 6th Brigade of the Sri Lankan Army (SLA), 20 were admitted to the Kilinochchi district hospital on December 11, 2012 between 11.00 pm and 12.30 am. 
• They had recently been trained in Kilinochchi and Mullaitivu districts 
• They were brought from Navam Arivu Koodam located in a village called Krishnapuram. Killinochi West 
• Upon arrival at the hospital, some of the women were unconscious. 
• They were immediately isolated from the other patients and subsequently detained in a small room in the hospital’s northern section. 
• The northern section of the hospital is not accessible to the public; it is used exclusively by army personnel. 
• Shortly after the group of women was admitted, a large group of army personnel (male and female) gathered at the hospital. 
• Only SLA doctors and nurses are looking after these female patients. 
• Some of those who have been admitted remain unconscious. 
• It has been reported that those admitted are all Tamil. However, since some of the women are conversant in Sinhala, people suspect that some of the admitted patients are Sinhalese. 
• Dr. Karthikayan, the regional director of health services and district medical superintendent, has allowed only one Tamil attendant to enter the room where the patients are being kept. Other people have not been permitted to enter. 
• Dr. Karthikayan has earned a reputation as an ardent supporter of the Sri Lankan government. Perhaps out of fear, hospital staff members have refused to give out any information. 
• Since people still do not know who has been admitted, the relatives of those who were recently recruited have been left wondering. As a result, many have congregated near the hospital. 
• As of the writing of this report, no family members have been allowed to visit those who have been hospitalized. 
• Due to the large number of army personnel situated near the hospital, the atmosphere remains tense. 
• TNA Parliamentarian Sritharan visited the hospital on our request and he was not allowed to see the women. In addition, the mother of a young woman has gone to the hospital and was not allowed to see her daughter. Subsequently, she was taken by the official of the military (higher official) and the outcome is not known.

Dr. Rajiva Wijesinha MP

My father is 91 years old, but he still has a very clear mind. I was therefore surprised when he suddenly informed me, after lunch I think it was, soon after the Prime Minister returned to Sri Lanka, that it was time Mahinda appointed that young man from Kandy as Prime Minister.

CJ’s Husband Was Our Man, We Quietly Covered It Up, But UNP Wanted Impeach CJ – MR

By Colombo Telegraph -December 12, 2012

“The NSB share deal became a big crisis in the country. It was newspaper headlines every day. So I summoned the relevant people and got them to return the money and cancel the transaction. We quietly covered it up, that is how it should be done after all, he is our man (ape miniha),” PresidentMahinda Rajapaksa said yesterday.

Speaking at the opening of the Chartered Accountants of Sri Lanka building in Colombo President Rajapaksa said that it was the UNP that first spoke of an impeachment motion against the Chief Justice after the NSB transaction, he said.

“This is the Chairman we appointed. This is the Chief Justice we appointed,” he said. At the same event, the President said that he would appoint an independent committee to review the PSC report on the impeachment of the Chief Justice, in order to ‘satisfy his conscience’.

Following is the full speech by the President.

34 Responses-

Renee - December 12, 2012
8:48 am
Reply

Sir if you start covering up for all your men what will happen to us? Most of the men have no formal education. Losses in the institutions they run are in the billions. You keep covering up saying “ape miniha. Sir we voted for you. What about us ? Are we not your people voters non voters and all?

You also forgot to mention , who gave this man orders to do this transaction. Another “ape miniha” who did those shares belong to one more of those”ape miniha”

We did not trust you with our precious vote for you to cover up for thugs, hooligans and donkeys. Even the donkey who gave the order, who has lost billions for the country , is not qualified to the job he has undertaken to do. Hence the mess.

You and some of your ministers, pardon me they are all ministers keep saying this country is booming , development is rampant ” Siri Lanka Shining” why do you think we, are not feeling this buoyancy? Is it only for “ape minissu”.

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I Was Not In favour Of Impeachment, I’m Saddened By Recent Developments, I will Appoint A Committee – MR

By Colombo Telegraph -December 11, 2012

An impeachment motion was signed and given to me, I was not in favour of it that time. Now that has been tabled in parliament, the next step is to appoint a committee and obtain a report, President Mahinda Rajapaksa said today.

Mahinda Rajapaksa

“There is a parliament. However I’m saddened by recent developments, I’m a lawyer by profession. When you look at this issue from that perspective I’m not in favour of undermining the judiciary. If someone has made a mistake then I do not think that should be discussed in public. It need not be made public. I will appoint an independent committee to look in to the PSC report that will be submitted before its implementation. Because I only have to be held accountable to my conscience. At the end of the day I have to be content with the decision I make. Under my instruction I will implement system although it has not been stated in books or law. However I have to be content with the decisions I take.” he further said.

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‘Tell Her To Resign, I Will Give Her Some Other Position’ President Rajapaksa Called CJ’s Instructing Attorney

‘Tell Her To Resign, I Will Give Her Some Other Position’ President Rajapaksa Called CJ’s Instructing Attorney

By Colombo Telegraph -December 7, 2012

Mahinda Rajapaksa

President Mahinda Rajapaksa last night called Chief Justice Shirani Bandaranayake’s Instructing Attorney Kandiah Neelakandan to express his “disgust” at the behaviour of his MPs at the PSC which resulted in the Chief Justice’s walkout.

Making the call around 8 p.m. yesterday, President Rajapaksatold Neelakandan the senior partner of the firm Neelakandan and Neelakandan that is representing the Chief Justice to ask Bandaranayake to ‘go quietly’ by resigning. “I will give her some other position somewhere. Tell her to resign. I think there has been some injustice done to herhusband as well, all that can be dropped,” Rajapaksa assured the senior lawyer.

“I had no idea these jokers had behaved like this,” the President told Neelakandan (mama danneth na me yakala karala thiyana wada)

The President also made a call to UNP MP on the Parliamentary Select Committee, urging him to refrain from withdrawing from the PSC process.

“You people oppose it. But stay inside and oppose it. Don’t leave the committee,” the President said. However Lakshman Kiriella is reported to have told the President that the opposition would make a collective decision on the matter.

The four Opposition members on the PSC today quit the committee citing a lack of clarity in the process and the biased behaviour of the Government MPs on the committee. Colombo Telegraph learns that the Rajapaksa Government is concerned that the boycott by opposition members on the committee would further de-legitimize the impeachment probe undertaken by the PSC, since the Chief Justice’s walkout yesterday will effectively make the proceedings and the judgment ex-parte.

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