The SC’s Decisive Intervention Against The Impeachment

By Basil Fernando -January 3, 2013 

Basil Fernando

The Supreme Court of Sri Lanka, marking perhaps the greatest day of its 200 year history, today declared in a historic opinion that the Standing Order of the parliament, bearing no. 78/A, is null and void and has no effect in law. By this opinion, the Supreme Court of Sri Lanka has nullified the impeachment process against the Chief Justice Shirani Bandaranayake, which it was pursuing with extraordinary haste and unprincipled vigor.

Public opinion in Sri Lanka and the international community, including the UN Rapporteur for the Independence of Judges and Lawyers, had said in no uncertain terms to the government that the course that it was pursuing in relation to this impeachment was against universally accepted norms and standards relating to proceedings for the removal of judges of the superior courts in any democracy. The Supreme Court today confirmed this view and put the matter to rest.

The course open to the government is either to abandon the impeachment move altogether or to pass a law incorporating the international norms relating to the removal of judges, and thereafter place the inquiry before a competent and impartial tribunal. A proposed law by an opposition member and the president of the Bar Association, Mr. Wijedasa Rajapaksha, is already before the parliament. Given the majority that the government enjoys in parliament, this bill can be passed as a law in the shortest possible time.

The government’s claim, that since 117 members of parliament have placed a motion calling for the impeachment of the Chief Justice and that the Parliamentary Select Committee has already been appointed, and that the government members of that Select Committee have already made their report, is in no way legally justifiable now as the Supreme Court has declared that the Standing Orders under which such actions were done were null and void.

The Asian Human Rights Commission calls on the Sri Lankan government to respect the interpretation of law given by the Supreme Court, which, under the constitution, has the last word on the interpretation of law. We also call upon the people to now come forward ensure that their Supreme Court is respected by their government. It is also the duty of the international community to intervene so as to avoid any unnecessary confrontation at this moment.

If the government, instead of respecting the Supreme Court, enters into a collision course with it, the responsibility for that decision will be entirely on the government itself. There will be nothing to justify such an action. People have a right to resist any illegal move that the government may take and, whatever the consequences of such a situation, they will be squarely on the shoulders of the government itself.

The government now has an opportunity to correct many of the violations relating to the constitution that have been taking place for a long period of time. Thus, the government has an opportunity to act in a manner that ensures respect for the rule of law in the country. If the rule of law is further undermined, the government is doing so at its own peril.

We take this opportunity to convey our respect to the Supreme Court which has at last woken up to its responsibilities to be the guardian of the dignity and the rights of the citizens of Sri Lanka. This responsibility alone is the justification for its existence.

In the past there were at least four occasions on which the Supreme Court could have intervened to prevent fundamental abrogation: when the bill relating to the new constitution was placed before it in 1972; or in 1978, relating to the UNP constitution; or in 1984, when the then President brought the first impeachment motion against the then Chief Justice, it could have declared that the Standing Order number 78/A was illegal; or in 2010 when the 18^th Amendment was. If they had intervened then, much of the historical tragedies thatSri Lanka has suffered during this period could have been avoided.

We reiterate that position which the Asian Human Rights Commission has repeatedly declared, that the extreme violence that took place in Sri Lanka in the recent period was a direct result of the constitutional aberrations that were done to deviate the country’s path from a democracy towards dictatorship. Now, there are people who declare victories over “a war”. However, the reality is that war could have been avoided and that bitter period with a large number of lives lost would not have happened if not for the failure of the courts to defend constitutionalism against the attacks that the executive was making.

The present decision thus paved the way for dealing with a number of pressing constitutional issues in the country. As Justice Wigneswaran stated last month, there is a situation of political instability created by the 1978 Constitution, and particularly by the 18^th Amendment to that constitution.

The country has been pushed down a perilous course for over 30 years now and the impeachment motion, if it had succeeded in the manner in which it was pursued by the government, would have pushed us further down the cliff of lawlessness.

The three judges who made the present judgment have acted not in of the passion of the moment but with a chill of reasoning as the judges of the highest court are expected to do. This should be a sobering moment for the legal community in particular, to rally together purely on the basis of democratic duties to safeguard the system. The people of Sri Lanka, we fervently hope, will intervene to define the country’s future course.

Related posts;

Breaking News: Standing Order Is Not Law – Court of Appeal

Impeachment: Full Text Of The Supreme Court Determination Today

Video: PSC void, SC determines

The Parliamentary Select Committee (PSC) has no legal power or authority to find a judge guilty because standing order 78(A) is not law, the Supreme Court determines.

The Court of appeal reading out the Supreme Court interpretation of the Constitution today stated the power to make a valid finding after investigation can be conferred on a court tribunal or any other body only by law and law alone.

The court said that the sole and exclusive jurisdiction of interpreting the constitution is with the Supreme Court

“The proceedings that commenced before PSC is not contemplated by law and the commencement of proceeding and continuance is prima facie void”, the appeal Court said. (By Hafeel Farisz)

►WATCH


THE SUPREME COURT DETERMINATION ON THE PARLIAMENT SELECT COMMITTEE PROCEEDINGS

Impeachment: Full Text Of The Supreme Court Determination Today

By Colombo Telegraph -January 3, 2013

The Court of Appeal has today read out the interpretation of the Supreme Court that “The PSC has no legal power or authority to find a Judge guilty because Standing Order 78A is not a law.”

Read the full text of Supreme Court determination here

Chandra Jayaratne

The Court of Appeal on 20/11/2012 in the course of considering several writ applications that came up before it has referred to the Supreme Court in terms of Article 125 of the constitution the following question relating to the interpretation of Article 107 (3) of the Constitution

“Is it mandatory under Article 107 (3) of the Constitution for the parliament to provide for matter relating to the forum before which the allegations are to be proved, the mode of proof, burden of proof, standard of proof etc., of any alleged misbehavior or incapacity in addition to matters relating to the investigation of the alleged misbehavior or incapacity?”

This question was referred in respect of all seven writ applications considered by the Court of Appeal on that day.

It is appropriate at this stage to set out the provisions of Article 125 (1) which is as follows.

“The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of the Constitution and accordingly, whenever such question arises in the course of any proceedings in any other curt or tribunal or other institution empowered by law to administer justice or to exercise judicial or quasai-judicial functions, such question shall forthwith be referred to the Supreme Court for determination. The Supreme Court may direct that further proceeding s be stayed pending the determination of such question.”

The preamble to the 1978 Constitution assures to all people inter alia “FREEDOM, EQUALITY, JUSTICE, FUNDAMENTAL HUMAN RIGHTS and The INDEPENDENCE OF THE JUDICIARY as the intangible heritage that guarantees the dignity and well being of succeeding generations of the people of SRI LANKA”.

The power of removal of the judges of the Supreme Court and the Court of Appeal upon an address of parliament is check provided by the Constitution to sustain the balance of power between the three organs of the Government. The exact nature of the investigation contemplated by Article 107 (3) is a question which has not received judicial attention. In this reference it is necessary to consider this particular matter as it has a link to the question referred to this Court by the Court of Appeal.

Without a definite finding that the allegations have been proved no address of parliament could be made for the removal of a judge. Thus the ‘Investigation’ referred to in Article 107 (3) is an indispensable step in the process for the removal of a judge of the Supreme Court and the Court of Appeal. The investigation leads to a finding whether the allegations made against the Judge have been proved or not.

The finding that the charged allegation has been proved is the indispensable legal basis for the address. Thus a finding, after the investigation contemplated in Article 107 (3), that the allegation against the Judge has been proved is the final decision which directly and adversely affects the constitutional right of a Judge to continue in office.                        Read More

Victory ? PSC member Vijitha Herath is all smiles when  he left the Supreme Court complex this morning after the Court of Appeal delivered the Supreme Court determination which said that the Parliament Select Committee prima facie void and the law creating it was not constitutional. Pix by Pradeep Pathirana READ FULL DETERMINATION READ FULL DETERMINATION

Midweek Politics: Unlucky ’13?

By Dharisha Bastians -January 2, 2013

Dharisha Bastians

As Sri Lanka steps into a bright new year her political fortunes have perhaps never been quite so tenuous. While it is possible that such dire predictions have been made many times before, as things stand now, the country is hurtling headlong into constitutional crisis which might alter the face of the republic in an unrecognizable way. Faced with a damned if you do, damned if you don’t situation with regard to the removal of the country’s top judge, the ruling regime is unlikely to take a step back, unless events in the coming week threaten international consequences too horrific to ignore

Politically speaking, the year 2013 begins on an ominous note. The seasonal festivities may have dulled the fervour of the impeachment battle somewhat, but as the Court of Appeal prepares to take up Chief Justice Shirani Bandaranayake’s writ application today, having issued notice to the 13 respondents cited in the petition – including the Speaker of Parliament and the 11 members of the Parliamentary Select Committee that probed the impeachment charges against her – the battle is poised to get started once again, with renewed vigour in the new year.

While it is no surprise that the Government members on the PSC will not be appearing before the Appeals Court today, UNP Leader Ranil Wickremesinghe provided more fodder for his critics by deciding that the two UNP Members on the Committee, Opposition Whip John Amaratunge and Party Senior Vice President,Lakshman Kiriella would not appear in court either. The UNP Leader, who is as adamant as ever to assert the supremacy of parliament over the judiciary, is of the view that since the MPs in question were involved in a parliamentary process, they do not need to appear in court with regard to the petition filed by the Chief Justice. This is despite the UNP members acknowledging privately that it was their opinion that they should appear in Court in order to explain what happened during the proceedings and how the lack of due process prompted the opposition walk out on 7 December. TNA MP and Attorney at Law M.A. Sumanthiran appearing on behalf of R. Sampanthan who is presently overseas and Vijitha Herath of the DNA are expected to appear in court today. The DNA had been willing to answer court notice even in December in the Supreme Court when the Court of Appeal issued notice on the PSC respondents in different writ applications, but ultimately their legal representatives decided that it was not necessary and may in fact delay the determination by the court.

Under the circumstances, Wickremesinghe’s decision to bar his MPs from answering court notices, will further reinforce the notion that Sri Lanka’s main opposition is in deep slumber and its leader busy with ego-play even as the country’s judiciary is mired in deep and damaging conflict with the executive and the legislature.

Judicial restraint? Read More

Sri Lanka: The Supreme Court’s decisive intervention against the impeachment

January 3, 2013

The Supreme Court of Sri Lanka, marking perhaps the greatest day of its 200 year history, today declared in a historic opinion that the Standing Order of the parliament, bearing no. 78/A, is null and void and has no effect in law. By this opinion, the Supreme Court of Sri Lanka has nullified the impeachment process against the Chief Justice Shirani Bandaranayake, which it was pursuing with extraordinary haste and unprincipled vigor.

Public opinion in Sri Lanka and the international community, including the UN Rapporteur for the Independence of Judges and Lawyers, had said in no uncertain terms to the government that the course that it was pursuing in relation to this impeachment was against universally accepted norms and standards relating to proceedings for the removal of judges of the superior courts in any democracy. The Supreme Court today confirmed this view and put the matter to rest.

The course open to the government is either to abandon the impeachment move altogether or to pass a law incorporating the international norms relating to the removal of judges, and thereafter place the inquiry before a competent and impartial tribunal. A proposed law by an opposition member and the president of the Bar Association, Mr. Wijedasa Rajapaksha, is already before the parliament. Given the majority that the government enjoys in parliament, this bill can be passed as a law in the shortest possible time.

The government’s claim, that since 117 members of parliament have placed a motion calling for the impeachment of the Chief Justice and that the Parliamentary Select Committee has already been appointed, and that the government members of that Select Committee have already made their report, is in no way legally justifiable now as the Supreme Court has declared that the Standing Orders under which such actions were done were null and void.

The Asian Human Rights Commission calls on the Sri Lankan government to respect the interpretation of law given by the Supreme Court, which, under the constitution, has the last word on the interpretation of law. We also call upon the people to now come forward ensure that their Supreme Court is respected by their government. It is also the duty of the international community to intervene so as to avoid any unnecessary confrontation at this moment.

If the government, instead of respecting the Supreme Court, enters into a collision course with it, the responsibility for that decision will be entirely on the government itself. There will be nothing to justify such an action. People have a right to resist any illegal move that the government may take and, whatever the consequences of such a situation, they will be squarely on the shoulders of the government itself.

The government now has an opportunity to correct many of the violations relating to the constitution that have been taking place for a long period of time. Thus, the government has an opportunity to act in a manner that ensures respect for the rule of law in the country. If the rule of law is further undermined, the government is doing so at its own peril.

We take this opportunity to convey our respect to the Supreme Court which has at last woken up to its responsibilities to be the guardian of the dignity and the rights of the citizens of Sri Lanka. This responsibility alone is the justification for its existence.

In the past there were at least four occasions on which the Supreme Court could have intervened to prevent fundamental abrogation: when the bill relating to the new constitution was placed before it in 1972; or in1978, relating to the UNP constitution; or in 1984, when the then President brought the first impeachment motion against the then Chief Justice, it could have declared that the Standing Order number 78/A  was illegal; or in 2010 when the 18th Amendment was. If they had intervened then, much of the historical tragedies that Sri Lanka has suffered during this period could have been avoided.

We reiterate that position which the Asian Human Rights Commission has repeatedly declared, that the extreme violence that took place in Sri Lanka in the recent period was a direct result of the constitutional aberrations that were done to deviate the country’s path from a democracy towards dictatorship. Now, there are people who declare victories over “a war”. However, the reality is that war could have been avoided and that bitter period with a large number of lives lost would not have happened if not for the failure of the courts to defend constitutionalism against the attacks that the executive was making.

The present decision thus paved the way for dealing with a number of pressing constitutional issues in the country. As Justice Vigneshwaran stated last month, there is a situation of political instability created by the 1978 Constitution, and particularly by the 18th Amendment to that constitution.

The country has been pushed down a perilous course for over 30 years now and the impeachment motion, if it had succeeded in the manner in which it was pursued by the government, would have pushed us further down the cliff of lawlessness.

The three judges who made the present judgment have acted not in of the passion of the moment but with a chill of reasoning as the judges of the highest court are expected to do. This should be a sobering moment for the legal community in particular, to rally together purely on the basis of democratic duties to safeguard the system. The people of Sri Lanka, we fervently hope, will intervene to define the country’s future course.

Assets And Liabilities: To Political Parties

By Kusal Perera -January 3, 2013 

Kusal Perera

This is a follow up on my previous letter to the Speaker of Parliament on Assets and Liabilities. While the Speaker is held responsible for declaration of Assets and Liabilities of MPs, political parties can not evade responsibility in ensuring their party MPs adhering to the law of the land that goes beyond the law.

31 December, 2012

To

Secretary General / General Secretary,

The UPFA, UNP, ITAK and DNA,

represented in parliament.

Dear Secretary General/General Secretary,

Regarding Declaration of Assets & Liabilities – Members of Parliament

I honestly believe you are aware by now of the letter I have already addressed to the Hon. Speaker of parliament on the above subject on 25 December 2012, requesting his assistance in obtaining information on declaration of assets and liabilities by MPs on the legal provision in Sub Section 5(2)(3) of the relevant Act. I am annexing a copy of same herewith, for your convenience.

While awaiting a reply from the Hon. Speaker to that said letter, I thought it is relevant and important that I address this to you, on the same issue, as you may as a political party decide to participate in the debate on the impeachment motion report by the PSC against the Chief Justice, handed over to the Speaker that raised the issue of declaration of assets and liabilities as a serious charge against her in her conduct as the Chief Justice.

It is not for me to tell you that the “Declaration of Assets and Liabilities (Amendment) Act No. 74 of 1988” is equally applicable to all 225 Members of Parliament in the same way as it does to the Hon. Chief Justice and to all other public officers, mentioned under Section 2.(b) of the above named Act. I would say, it goes beyond that legal provision as a moral and a political obligation as well, for all elected politicians as Members of Parliament to strictly abide by the law.

The social reason and necessity for such an Act to be adopted as law, is plain and clear in a democratic system of representative governance. The society needs checks and balances  to ensure and guarantee that public officials in State institutes and elected representatives in any Legislature do not take to corruption and fraud. As political parties that vie for political power at every elections, you are morally and ethically bound to adhere and abide by this Act, each time you promise good governance, accountability and transparency at every elections, win or loose.

Beyond the responsibility and duty of the Speaker in ensuring the adherence to this law, political party leaderships too have a serious role, an unmistakable binding to the voter, to honour this law to the very letter. No parliament is “Supreme”, if its MPs don’t abide by the law that ensures accountability and transparency to the extent that the citizenry could agree the elected representatives are not into corruption and fraud. If MPs don’t prove to the public that they do respect the law in declaring their assets and liabilities, this parliament would not be “Supreme” in any way, though written on paper.

Therefore I hold the leadership of the political party as wholly responsible in the implementation of the “Declaration of Assets and Liabilities (Amendment) Act No. 74 of 1988” as a law of this land. I hold the Secretary General/General Secretary of the party responsible as the authorised legal entity in the party who signs nominations under the Elections Law, in ensuring candidates nominated by you to the Elections Commissioner, submit their required declaration of assets and liabilities when handing over nominations. Where that responsibility has not been properly carried out, which is almost all the time, I hold you responsible in ensuring your elected party Members, submit their declarations before swearing in as a Member of Parliament. This I say, is a responsibility you can not ignore, forget or evade, even if the accusation against the CJ for improper declaration of assets and liabilities is not on the table for debate and discussion, the media says has been fixed for a two day debate in parliament on 10 and 11 January, 2013.

This being a law that under Section 9 (1) makes any person who fails to declare assets and liabilities without reasonable cause, makes false statement or contravenes any provision of this law, shall be guilty of an offence and shall, on conviction after trial before a Magistrate be liable to a fine, imprisonment of either description or both such fine and imprisonment, I wish to stress, citizens of this country have the right to ask you, as to who in your party has violated this Act and then, you are politically obliged to answer that question without restrictions.

On that political and legal understanding, I believe you would answer my questions below.

1. Have all MPs elected from your political party to parliament, handed over their assets and liabilities declarations years up to 2011 March 31 and 2012 March 31 and if not, can you please provide the names of those who have not ?
2. If some have not, why have you not taken any disciplinary action against them for such violation of law ?
3. Have your party as one registered under the Elections Commissioner’s (EC) Department, submitted assets and liabilities declarations of all office bearers to the election commissioner as per Section 2(da) of the said Act and if so, can you please make them available to the public, without further delay ?

Shall expect an early and a complete answer, from you.

Thanking you in advance,

Yours most sincerely

Kusal Perera

Journalist-----------------See full letter here

Nimal says he wont attend courts : Basil eager to attend courts

(Lanka-e-News-02.Jan.2013, 11.55PM) Minister and Lawyer Nimal Siripala de Silva who represented the Govt . at the select Committee stated , after receiving summons , ‘I will not attend courts . I have not gone and I wont go’ . The Minister told this when addressing an SLFP party media meeting with the participation of newspaper representatives at the Mahaweli Center , Colombo today (2).. He also announced that the special select Committee appointed by the speaker had concluded , the reports have been released and they are now no longer members . Might we state that if the select Committee proceedings are over , the parliament debate on the decisions thereof need not be held. Hence , these are stupid statements made just to capitalize on the situation in Govt.’s favor.

While Nimal Siripala says he will not attend courts , Basil Rajapakse has made all arrangements to attend courts tomorrow. Basil of course is as usual going to courts to create trouble and turbulence in the court premises with his hooligans , henchmen and lackeys , by staging demonstrations against the judiciary claiming they are not acceptable , and to vilify the courts. Lanka e news exposed this Basil’s conspiracy on the 31stof December 2012.

Siripala, Wickremasinghe And The Validity Of Parliament’s Interpretation Of The Constitution

By Elmore Perera -January 3, 2013

Elmore Perera

Prior to the autochthonous Constitution of 1972, under Dominion Status granted in 1948 Parliament enjoyed a very limited supremacy. The Monarch of the UK was considered Sovereign. Parliament was vested with the power to make laws for the peace, order and good government of the Island. Executive power vested in Her Majesty was exercised by the Governor General who was required to exercise such powers in accordance with Constitutional conventions of the UK. In effect Executive powers were exercised by the Cabinet of Ministers headed by the Prime Minister. Parliament enjoyed a limited supremacy.

In 1972, the Republican Constitution provided that Sovereignty was in the people, is inalienable and shall be exercised through a National State Assembly. Established as the Supreme Instrument of State Power, the National State Assembly or Parliament was mandated to exercise:

(i)      Its legislative power directly,

(ii)      Executive power through the President and Cabinet of Ministers, and

(iii)    Judicial power of the people through Courts and other institutions created by law except in the case of matters relating to its powers and privileges, wherein  the National State Assembly may exercise such powers directly.

This Constitution also established a non-executive/ceremonial President as Head of State, Head of the Executive, Commander-in-Chief of the armed forces with the power to declare war and peace, providing clearly that he shall act always on the advice of the Prime Minister or the Cabinet Minister to whom the Prime Minister may have assigned such functions. The National State Assembly, in fact enjoyed “absolute Supremacy”.

On 20^th October 1977, the 2^nd  Amendment to the 1972 Constitution effected the transition to the Presidential form of government and established the National State Assembly and the President as the Supreme instruments of State power, repealed the requirement that the President shall act on the advice of the Prime Minister or Minister and elevated the President to be the sole and untrammelled repository of Executive Power.

Read More

Why are we doing this to ourselves?

Why are we doing this to ourselves?

by Basil Fernando

( January 3, 2013, Hong Kong, Sri Lanka Guardian) We have self-made our destabilization. We are destabilizing ourselves and blaming others for destabilizing us.

Our recent history is a history of decay. With each year, we are destabilized more than the previous year; our social organization has decayed more than the  previous year. Let us take our parliament, our police, our prosecutor's  department (Attorney General's department), our corruption control department and our judiciary -- all of these become worse each year.

We kill more prisoners, we arrest more people without any reason, we torture and ill-treat more people, more bribes have to be paid, there is more delay in adjudication, schools become worse instead of better, and so do the hospitals.

The quality of our radio programs degenerate each year, and so does other state media.

The total situation affecting us was well summed up by Justice Wigneswaran,

.................... Summery: Play the video .................

..............................................................

"Thus the 18th Amendment has destabilized the Sri Lankan political system. Its effects will only grow with time. The drama taking front pages in the Newspapers these days is only proof of such demoralizing effects. The Amendment has removed essential limits on Executive power and has crippled the Judiciary and   reduced the independence and influence of the Parliament; further, it has ensured political stagnancy and precluded progress. By, passing the Eighteenth Amendment, Sri Lanka has destroyed what democratic framework that was in place rather than improving it."

At one time we blamed the 'war' and the LTTE.

What do we blame now? NGOS?!

THE ONLY WAY OUT

The communication among ourselves about our own common problems regarding our own social foundations, the ground on which we stand, has also degenerated to that kind of talking.

Serious talk about getting out of this situation requires a restatement of the basic constitutional ideals we have agreed on – the idea that we are a democracy and a republic, that rule of law is the thread that binds us, that separation of powers is the structure of power among us and that rights of each of us as individuals need to protected under all circumstances, and that the consent we give to the government is always conditional to these basic elements. This implies these ideals are the core of our collective self, our own nationhood.

When faced with such societal crisis as we face, the only way out has been the restatement of basic ideals on which the social structure and institutions stands, which is the framework of our agreement to work out our destiny together.

Whether we look into the West with Plato and others, or to the East, the methodology that has been adopted in coming out of such societal crises is the reassertion of the basic ideals and reconstruction of the basic structure of society on that basis. In India, the same approach was expressed in opposition to Indira Gandhi's attempt to destabilize the basic structure of the Indian constitutional system, as evident from the basic structure doctrine in Kesavananda Bharati v. State of Kerala.

We have come to that critical moment when such an assertion of the basis of our nationhood can only be delayed at our own further peril.