Commotion over the Impeachment of Chief Justice is the failure to understand the difference between a legal procedure and that of an Impeachment
Posted on January 2nd, 2013

By Charles.S.Perera

 Impeachment trial  is defined as: ” “¦”¦”¦ a political procedure conducted by the Senate to determine whether an impeached official should be convicted and removed from office.”

 Here the emphasis is  on “political procedure”.  A case in a Court of Law is presented by the prosecuting Lawyers,  defended by the lawyers in the presence of a Judge.  In the case of a criminal case the verdict is given by a jury of ordinary men selected by the court.  Everyone is subject to law and could be tried in a Court of law except the President of the Country and the Chief Justice.  Nevertheless, they too are not above the law.

 Therefore, when the people  or their representatives have a complaint against the President of the Country or its Chief Justice, they inform the speaker of the  Parliament in writing. He appoints a select committee consisting of the Members of the Parliament  to hear the complaint against a Chief Justice or a President.  There are no lawyers in the impeachment  procedure against a Chief Justice or a President  except the  lawyers accompanying  a Chief Justice or the President..

 In an Impeachment investigation  there are a  set procedure to be followed which are not those followed in a court of Law.  A Latin maxim , ” audi alteram partem ” is bandied as if it   had not been applied in the case of the Impeachment Motion against the CJ.   It simply means, ” In law, no person shall be condemned, punished or have any property or legal right compromised by a court of law without having heard that person.”

 “An impeachment trial, or removal trial, is a political procedure conducted by the PSC to determine whether an impeached official should be convicted and removed from office.”

 The Impeachment Motion against the Chief Justice Sriani Bandaranayake  in Sri Lanka  had been followed as it should be in terms of the Article  107 and its sub items of the Constitution of Sri Lanka.  The Charges had been made by  117 Members of the Parliament who had handed them over to  the Speaker.  The Speaker following the Parliamentary Standing Orders  had appointed a 11 member Special Parliamentary Committee with one of them as the Chairman to inquire into the charges. 

 The CJ had presented herself  before the PSC along  with a number of Lawyers.  She had heard the Charges and a charge sheet given to her.  She had been given 22 days to prepare her defence (audi alteram partem).  But on the day she was to defend her case before the PSC, she had walked away.  If it was a court of law she would have been charged for contempt of court. 

 In a Court of Law, a defendant is served with a Summons.  He is given a specified period of time to respond to the summons and the complaints.  “If the defendant does not respond, the plaintiff may seek a default judgment from the court, granting the plaintiff the legal relief specified in the complaint.”

 Now that procedure is for the Courts of Law, but in the Impeachment trial against the  Chief Justice, she had refused to respond.  Therefore the PSC had closed the case against  her and sent a report to the Speaker stating  the charges  against  the CJ which  had not been defended by her.  The Charges were therefore considered as proved.  What ever accusations  she makes against the PSC now about abusive language used by the members of the PSC, and the fact that four Members of the PSC had also walked away from the PSC after her,  do not carry any weight against the decision of the PSC to send the report specifying the three charges as proved against her. 

For all intents and purposes the Chief Justice Sriain Bandaranayaka remains charged by the PSC.  Unlike in a case heard in a Court of Law.  The report of the  decision of PSC is not the final step in the Impeachment Motion.  The report once presented to the Speaker  is kept, for “a cooling off period of one month” and then presented to the Parliament for a debate.  After the debate the Parliament takes a voting.  Even that is not the final stage of the Impeachment Motion.  After the debate and the voting the report is sent to the President. It is he who takes a final decision.

It has been specified even in the case of an Impeachment Motion in USA, that ” An impeachment trial, or removal trial, is a political procedure conducted by the Senate to determine whether an impeached official should be convicted and removed from office.”

Therefore  there was nothing wrong  or improper with the Impeachment Motion  as it has so far been conducted against  the Chief Justice  Shirani Bandaranayaka

C.Wijeyawickrema  who adds LL.B and Ph.D to the end of his name to avoid falling in to the category of  “nugath modaya (uneducated fool)”   the  description  made by President R.Premadasa and referred to by S.L.Gunasekara, and put himself in the , “so-called educated cream of the country”¦.”

 Wijewickrama says, ” Ironically, I find that the Premadasa phrase can be applied to what is now going on with the Shirani B impeachment debacle, with a new twist. One can say we now have Nugath Modayin, Ugath Modayin and Ugath Kapatin (uneducated and educated fools and educated hypocrites). Because I consider that most MPs, PC mps and ministers are Nugath Modayin, I do not want to talk about them.  My concern is about the so-called educated cream of the country, the low level the country has gone down in honesty, morals and reasonable behavior.”

 Wijewickrama goes beyond the Constitution, to look at the impeachment from  Buddhist Vinaya Rules, “”¦”¦.       I do not expect a person like Prof. Nalin de Silva to have a law degree to understand that the basic Buddhist Vinaya rule framed 2600 years ago that an accused monk should be given a fair opportunity to defend his case. So when he ignores this in the case of Shirani B, how can I think of having any hope on others like”¦”¦”      

Was the CJ Shirani Banadaranayake not given a fair opportunity defend her case ?  Wijewickrama is either misinformed or deliberately over looking the fact.  She was given the opportunity to  defend herself but she preferred to walk away, if the reports were correct.         

 Wijewickrama says,””¦so far only two persons, H. L. Gunasekara and Rajiv Wijesinghe were willing to separate the question of Shirani B’s guilt or innocence from the commonsense requirement of the need to give an accused a fair trial. This requirement is not what we got from the western jurisprudence; it is what we see in the Buddhist Vinaya rules 2600 years old.”

 After accusing that the Impeachment Motion did not respect the legal requirements, it is now been asked  why the Buddhist Vinaya  Rules were not respected in the inquiry into the   Impeachment Motion against the Chief Justice.

In an interview with Hafeel Farisz of Daily Mirror, to a question which Hafeel Farisz asks : 

 Why exactly do you oppose the current impeachment motion? S.L.Gunasekara  states:

” It’s not a question of opposing a motion as such, but it’s a question of opposing a move to impeach the Chief Justice from becoming a political circus and the procedures that are used in this circus. There must be fair play and to my mind there is no fair play at all in this entire process.
Whether she is guilty or innocent of these charges I don’t know, but that is to be proved by those bringing these allegations at a fair trial or inquiry after giving her an opportunity   to cross examine witnesses, leading such evidence as she requires, and of opposing the case against her.”

 Despite S.L.Gunasekara being a senior lawyer he continues to make hearsay statements, even if they were ” impeccable sources”.

  “Indeed from various statements that were made before the impeachment motion was brought I have little doubt and from the information I received from those I term “impeccable sources”, the impeachment motion was signed blank and the charges came in later. So the idea of impeaching her did not stem from the charges, the charges came after the decision to impeach her was taken. They decided to impeach her and throw her. After this they went about finding charges which I think is completely wrong. The whole idea of an impeachment is that the motion must stem from the charges.”

 What grounds has he to say that the impeachment motion was signed blank ?  I am not a “yes” man to any one , but from reported facts the Impeachment Motion had been inquired into in terms of the Article 107 of the Constitution.  The Impeachment  Motion cannot in no way be related to a trial in a court of Law. If the Chief Justice had not walked away from the PSC she could have defended herself and even cross examined  or explained the documents that nailed  the charges against her.  Why doesn’t  S.L.Gunasekara find fault with the CJ for walking away from the PSC ?  Is that not a contempt of the Legislature ?

Then in the next question put to him S.Gunasekara says the same thing over and over again .  He sees the Chief Justice Shriani Bandaranayake ” lily white”, He fails to look at the question of impeachment  objectively.

“Q:But one thing that those who brought the motion and who have been a part of the process adopted thereafter, claim and continue to extol is the fact that the entire process is constitutional. That they are acting within the framework provided for in the constitution. Do you not agree with this view?

The constitution does not say that anybody must be unfair towards another. Indeed article 107 (3) which provides for the impeachment of a judge very specifically states the burden of proof is firmly on those making the allegations. Whereas the standing order 78(A) says that evidence must be led in disproof. But disproof necessarily implies proof. So if there is prima facie evidence one can pardon the use of the word disproof, but then evidence must be read, she should have been given the opportunity of defending herself , she must have had the opportunity to cross examine witnesses that were brought against her, she must be given the opportunity of studying the document against her. Instead  all of a sudden she has been given over a thousand pages of documents according to the reports that I hear, and told to come the next day with a defence. This is humanly impossible and I can say this as a lawyer with close to 45 years standing.”

 The following question by Daily Mirror, is the most important to understand how unreasonable, to say the least, is the Senior Lawyer S.L.Gunasekara .

 Hafeel Farisz asks:

 Q:One thing that you campaigned for is the fact that you wanted the lawyers of the country to form a collective of some sort against this process. What role do you actually think the lawyers could play?

 S.L.Gunasekara says: .?….Well, my suggestion to the Bar Association was, the BASL should call on all members not to accept the appointment of a Chief Justice. This is because of the utterly shabby and shoddy way the current Chief Justice was treated”¦”¦.”
I can’t visualize any person with a trace of self-respect accepting that appointment and I don’t think we should have as Chief Justice any person who doesn’t have a trace of self-respect “

This is the most irrational and absurd statement to come out of a man like S.L.Gunasekara, who is supposed to be a senior lawyer of standing.

All those who cry high and low against the Impeachment Motion should understand that it  cannot be compared to a trial in a Court of Law.

 Impeachment is a function of the Legislature which  separates it from the Judiciary and the Judiciary has to abide by the Legislature despite its independence.  It is the Constitution which is supreme here , and it the Constitution which separates the Judiciary from the Legislature and the Executive,  and the Legislature and the Executive from the Judiciary.

16 Responses to “Commotion over the Impeachment of Chief Justice is the failure to understand the difference between a legal procedure and that of an Impeachment”

  1. NeelaMahaYoda Says:

    This senile fool man, S.L.Gunasekara, who once tried to Split the Sinhala Buddhist uprising( Baudha Balavegaya), doesn’t even have enough grey matter left in his head to understand the simple fact that the whole impeachment procedure should be completed in one month according to parliamentary standing order procedure applicable for the impeachment process. PSC findings would have become null and void if they exceeded that stipulated time period. Charles should ignore Wijeyawickrema even though he has decorated his name with a LL.B. He is not a practicing lawyer in the US, he is just a high school teacher.

  2. Lorenzo Says:

    SB was given a fair hearing.
    SF was given a fair hearing.

    But both REFUSED to make use of these opportunities saying NONSENSE.

    Well said Charles.

    Some people think impeachment is something UNIQUE to SL!!!

  3. Kit Athul Says:

    Lorenzo, do you ever read Tamilnet.com Read what this British colonial clown Judge (who looks like Maharasheta Mahesh Yogi) wignaswaram has written, he had to bring JRJ, no Tamil, writing about the constitution will leave JRJ out. That is because he created the Republic. Then read about what Brain Senaviratne writes. These British Colonial clowns like the PUNK JUDGE Weeramantry, have followers and supporters, and these people push them up so that they get credibility. Who pays these punks Weeramantry and Brian Senaviratna to travel?

  4. Lorenzo Says:

    Kithsiri,

    Yes I read the dirt.

    They get money from the Tamil Diarrhea. They still collect 300 million US dollars a year.

    What GOSL should do is, get a DMI spy to pretend to “defect” and say total BS against SL. He will be paid millions of dollars. After collecting the money for 5 years, getting to know the b*stards behind the scene, disclose them to DMI, Interpol.

    CREATE many many army “defectors” (actual secret service men) who would talk about fancy “war crimes” evidence. When it comes to an investigation, they should say all BS that will HUMILIATE their case.

    In Florida you get termites. Have you seen how they destroy them?

    You bait them. When termites eat the bait nothing happens. Then they take it to the COLONY. Time passes by. Then the bait gets into action and kills the QUEEN!! That is end of the termite colony!!!

    This is what we should do to Tamil Diarrhea’s credibility.

  5. Lorenzo Says:

    Breaking news.

    The Parliamentary Select Committee has no legal authority to inquire into allegations on the Chief Justice, the Appeal Court today said reading out the Supreme Court interpretation of the Sri Lankan constitution.

    This was stated when two petitions filed by Chief Justice Shirani Bandaranayaka were taken up at the Appeal Court today.

    The Appeal court further explained that allegations against a judge could only be investigated by an entity with judicial authority. If not the authority of the whole judiciary of the country could be threatened, the Court added.

    PSC was established under the standing order 78(A) and the aforementioned order is not a law, the Appeal Court observed.

    Court hence stated that in order to inquire allegations the Chief Justice, Parliament needs to appoint and committee or an entity endowed with judicial authority.”

    – adaderana

    Now what?

    The President should just sack her making use of the PSC report.

  6. Charles Says:

    I presume that the President cannot be stopped legally from using his Exexcutive powers to sack the Chief Justice. In Egypt the President took over the Judicial powers. I am sure the Sri Lanka Judges a what ever action he could take as the executive President.

  7. Charles Says:

    I am sorry my comment is garbled, it could slipped off my fingers!!! I meant to say that the Sri Lanka Judges and the BASL must be working for a NGO Agenda and they careless what happens to the country as long as they can save the Chief Justice who has proved is unable to hold a prestigious post. She has to go. I am sure our people will not do an “Arab Summer” which the NGOs and the interfering International Community want.

  8. lingamAndy Says:

    Charles
    She has to go- She is not going go any where only our Mahinda Family members company need to send back to Indian where they come from ???

    Lastesd judgment
    A Parliamentary Select Committee (PSC) has no legal power or authority to find a judge guilty since the Standing Order under which the committee is appointed is not law !

  9. lingamAndy Says:

    The President should just sack her making use of the PSC report- that is also not lawful ! Chief Judge can sack The President not other way !!!
    time for President to go home !!! call fo election !

  10. NeelaMahaYoda Says:

    We all should thank Lankaweb for allowing LTTE sympathiser like Andylingam to express his typical pro-terrorist standpoint and separatist mind-set so that we all get sufficient information on their intentions and targets on Sinhala traitors such as SB and SF who are willing to cross over to the other side for a handful of dollar bills.

  11. Lorenzo Says:

    I agree with NMY.

    Keep your friends close, your enemies CLOSER!!

  12. Kit Athul Says:

    Lorenzo, thanks for the reply, lets get back to this Phd Wijayawickram, this is what I can remember, he was a Civil Servant (Ceylon Civil Sercice) he had a job some thing to do with Tamil Tea Estate workes. may be other readers might shed some light on this man. Again, he is a BRITISH Colonial reilc who cannot understand logical reasoning or change, which Charles clearly explained in his previous articles. What Charles has writen is comparing the US impechment process to what is happning in SL. Can SL and Gomin Understand it. YES but pretend that they cannot.

    Andy-Lingam, your wrong, If Mahinda family says that they are Sinhala, then they should go back to Pakisatn and not your SHIT INDIA. Sinhala came from Sind Province in Pakistan. There was a severe drought in Sind Province and the Sindies came to Lanka, then settled on the river banks of Kalani River. They inter married with HELA, and called themselfs SINHALA. This was long before Vijaya.

  13. Lorenzo Says:

    SL should IMMEDIATELY take action against Tamil nationalists.

    Violence against them is NOT acceptable. But they MUST be stopped. Otherwise they agitate for trouble using students, etc.

    So what should be done?

    Learn from world class secret services.

    These people were presidents of anti-US governments in Latin America (closer to home). USA had to stop them. What they did is an old trick. Poisoned them with cancer causing elements.

    Fernando Lugo – Paraguay
    Lula da Silva – Brazil
    Hugo Chavez – Venezuela
    Cristina Fernandez de Kirchner – Argentina (possibly by UK)

    It is not new.

    An anti-Russian was given a dose in 2008. He died in UK.
    Arafart was poisoned to death.

    So we see at least 3 of the world BEST DEMOCRACIES have done it. SL MUST do it to its enemies.

    In SL it is very very easy as the govt. controls many things. No war crimes, no threat to national security, LOW COST, undetectable, easily given, no collateral damage, MOST terrorists are from minorities (smaller in number so can be easily defeated).

    A stitch in time saves 9!!!

    If anyone thinks it is cruel or bad, just think what would happen unless these hate generating terrorists are NOT STOPPED!! It is worse.

  14. lingamAndy Says:

    NeelaMahaYoda

    We all should thank Lankaweb for allowing LTTE sympathiser like Andylingam to express his typical pro-terrorist- Fully Agrred I personaly thanks to this Lankaweb side allow me to write my oppinion for our lasting solution deram of Tamil Eelam !

    Also personaly When I with other Tamil (brithday party etc..) I speck against VP & co to get Tamils thick mentality of thier night mare of Tamil eelam ! Here, I alway got madness because I never get conviced for Tamil Eelam separat state !

    In here(lankaweb) I write as pro Eelamist as to find out what our Chinhala Bros mentality !!!Now here I fully confinced Yes Tamil should fight for Thamil Eelam until last Tamil live in Mother lanka !

    Thanks again Lankaweb ! also I like more Tamil write in lankaweb their oppinion( pro Eelam) here ( not to using bad language )!

    My dearm is one day atleast one Chinhala brother in lankaweb write as Andy lingam You are write We should divide our mother lanka !!!! unit that I write here subject to Lankaweb ban me here ( I may come back in different name )

    Nambungal Naalai pirakku Thamil Eelam !!!

  15. lingamAndy Says:

    Lorenzo
    Keep your friends close, your enemies CLOSER!!- Agrred that why I am CLOSER with you !!!

  16. lingamAndy Says:

    Kit Athul
    They inter married with HELA, and called themselfs SINHALA- Thanks you for info
    Pakistan & india were same country (Industan) is not it?
    My chinhala bro We all are indian origins ( some come early , others come late thats all)
    end of the day We all are Lanka putha(lvarkal) now !!!
    Unit in diversity is lasting permenat solution for us !! no short cut !!! only short cut in cut the country in two , I am sure that is you chinhalese do not want ?

    any way pleaseallow me to dearm my Tamil eelam !!! Nambungal Naalai pirakku Thamil Eelam !!!

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