Sri Lanka: Impeachment of the Chief Justice
Posted on January 4th, 2013

Asoka Weerasinghe Kings Grove Crescent . Gloucester . Ontario . K1J 6G1 Canada

ƒÆ’-¡ 4 January 2013

ƒÆ’-¡ The Editor

THE OTTAWA CITIZEN

ƒÆ’-¡ Sir:

You reported:ƒÆ’-¡  Sri Lanka – Probe of chief judge not legal, top court rules.ƒÆ’-¡  This issue is getting nastier and messierƒÆ’-¡ by the day.

ƒÆ’-¡ We are now been told that the Supreme Court had falsified/omitted the relevant part of the Constitutional clause in giving this judgment – and left out the relevant vital part of the constitutional document, which says ‘by law OR Standing Order.’

ƒÆ’-¡ If this observation is in factƒÆ’-¡ honest andƒÆ’-¡ correct,ƒÆ’-¡  then do I smell a rat here?ƒÆ’-¡  The key part of the constitution states that Standing Orders is one way of creating a body to investigate impeachment charges against the Chief Justice.ƒÆ’-¡  This order acknowledges that the removal of judges is a power vested with the President of the country.

ƒÆ’-¡ One wonders whether the Supreme Court was using an outdated copy of the Constitution where the words ‘by law OR Standing Order’ƒÆ’-¡  had not been incorporated to makeƒÆ’-¡ its judgment.ƒÆ’-¡  Either way the issue is fishy, smelly and suspect.

ƒÆ’-¡ If this omission is proved right, thenƒÆ’-¡ one thing should be clear in Sri Lanka, that neither theƒÆ’-¡ lawyers nor the judiciary can takeƒÆ’-¡  the law into their hands to manipulate to guard their wrongedƒÆ’-¡ house and paintƒÆ’-¡  it lily-white.

ƒÆ’-¡ Asoka Weerasinghe

19 Responses to “Sri Lanka: Impeachment of the Chief Justice”

  1. douglas Says:

    Yes . There is a confusion as regards the words “by Law OR Standing Order” which gives PSC the “pwer and authority” as regards the impeachment of the Judges of the SC or the Court of Appeal. The Supreme Court got involved in this regard as a result of a question sent to it by the Court of Appeal arising out of writ applications filed before it. The question was:-

    ” Is it mandatory under Article 107(3) of the Constitution for the Parliament to provide for matters (sic) relating to the forum before which allegations are to be proved, the mode of proof, burden of proof, standards of proof etc. of any alleged misbehaviour (sic) or incpacity in addition to the matters relating to investigation of the alleged misbehaviour (sic) or incapacity”.

    This question was referred to the SC because the petitioners in their application for a writ contended that the Standing Order 78 (A) conferred Judicial Powers on the Select Committee and that is ultra vires Article 4 (c) of the Constitution. Also they contended that Judicial Powers cannot be conferred upon the Select Committee by Standing Order which is not Law.

    So Supreme Court being the only authority to decide on matters pertaining to the Constitution, it had a legitimate authority to determine and provide an answer to the question referred to it by the Court of Appeal.

    If one were to go through the Order of the Srpreme Court (it runs to several pages) it would be realized that all mtters (including previous determinations) presented by the Petitioners and the Attorney General and his team have been analysed and given consideration before arriving at a decision.

    The decision, as you know now, is that the Standing Order is not Law and as such it cannot confer “Judicial Powers” to a Parliamentary Select Committee in deciding a Judge “is proved guilty”. Also it implies that if such Judicial Power is to be conferred, it must be done through an Enactment of the Parliament.

    This is what we are debating today. I hope, therefore, we confine ourselves to the subject matter: “Why not the Standing Order a Law, in deciding a person “is proved guilty” or “not guilty”?. In my mind, that is what we must be discussing, rather than casting derogatory remarks at persons who contribute diverse opinion on the subject. If we avoid such insinuations on people, that would help also indirectly to maintain the “honour and credibility” of this web page. Let us listen to all opinions in a patient and friendly manner. Thank you.

  2. Lorenzo Says:

    IF this is genocide as Tamil Nuts call it, I LOVE their genocide!!

    “[TamilNet, Friday, 04 January 2013, 21:21 GMT]

    In a hitherto unheard experiment in conducting genocide, the Sri Lanka government has appointed its occupying military to teach Sinhala as second language to Tamil school children in Vanni. The Sinhala military personnel went in uniform to schools to report as Sinhala teachers and they claimed that they had permission from the SL education authorities to do so, news sources in Vanni said. The genocidal military teaching Sinhala goes parallel to the teaching of Theravada Buddhism to Tamils. The Sinhala military also aims to be in direct touch with the Tamil school children, the news sources further said. Already there were strict instructions to schools in Vanni that no functions could take place without inviting the occupying military and garlanding them publicly.”

  3. Lorenzo Says:

    The conduct of the CJ is DEROGATORY.

    She has RUINED her credibility and obviously has no honour at all. Such third grade conduct MUST be condemned and associated with language appropriate to such conduct. I hope she understands it and RESIGNS NOW at least with some respect for her saree.

    Ugath Modaya, Nugath Modaya and Ugath Kapati Modaya are very appropriate names for the CJ, NGOs and the drunkards of the Aluthkade BAR which they have EARNED by the conduct.

    Disgusting actions of them have spoken louder than just words.

  4. Wickrama Says:

    Douglas, the PSC did not have or excercised any JUDICIAL powers. It only had investigative powers and has produced a report detailing its findings. This report will be debated in the Parliament. Depending upon the result, the President will have to take the decision whether to sack or not the CJ. What the Appeal court or the Supreme court has done is irrelevant.

  5. callistus Says:

    Of course the PSC is not a court, and only an investigating body, which reports to the speaker of the parliament. What is all this fuss about. CJ must go. Pakiasothi and Weliamuna and some others trapped the woman. She will be dropped like Fonseka, next week. End of story.

  6. mario_perera Says:

    The requisite number of members of the majority party signed a motion of impeachment.
    The motion of impeachment contained the charges.
    The majority of the PSC were from among those who signed the impeachment sheet.
    They summoned the CJ.
    the CJ answered the summons and was accompanied by her lawyers.
    They presented the charges and handed her the documentary evidence.
    They called for her defense.
    She and her lawyers walked away in protest at the manner in which he proceedings were being conducted.
    The PSC then proceeded ex parte.
    The summoned witnesses and subjected them to an examination in chief.
    On the basis of the documentary evidence and the oral evidence led by them, they found the CJ guilty as charged.
    They pronounced the verdict of guilt on some chosen charges. They pronounced the verdict of non-guilt on some others, and dropped yet some others.
    Their decision they handed over to the speaker for action.
    IF THIS IS NOT A JUDICIAL PROCESS PRAY TELL ME WHAT IS !!!!!!!!!!!!!!!!!!!

    Mario Perera
    Kadawata

  7. Wickrama Says:

    Mario,
    “The requisite number of members of the majority party signed a motion of impeachment.”
    THAT IS NOT A JUDICIAL PROCESS.
    “The motion of impeachment contained the charges.”
    THAT IS NOT A JUDICIAL PROCESS.
    “The majority of the PSC were from among those who signed the impeachment sheet.”
    THAT IS NOT A JUDICIAL PROCESS.
    “She and her lawyers walked away in protest at the manner in which he proceedings were being conducted.”
    THAT IS NOT ALLOWED IN A JUDICIAL PROCESS.
    She also complained that she has no faith in the PSC.
    THAT IS NOT AN EXCUSE IN A JUDICIAL PROCESS.
    “Their decision they handed over to the speaker for action.”
    THAT IS NOT A JUDICIAL PROCESS.
    Action yet yo be taken by the Parliament, and then the President.
    THEY ARE NOT judicial processes.

    So, Mario, what has happened so far, and will happen next are procedures according to the constitution in the case of an impeachment of a CJ.
    Similar procedures have happened before. CJ of all persons should have been aware of them.

  8. mario_perera Says:

    Wikrama

    You have no answered the crux of my argument restated below

    The CJ answered the summons and was accompanied by her lawyers.
    They presented the charges and handed her the documentary evidence.
    They called for her defense.
    She and her lawyers walked away in protest at the manner in which he proceedings were being conducted.
    The PSC then proceeded ex parte.
    The summoned witnesses and subjected them to an examination in chief.
    On the basis of the documentary evidence and the oral evidence led by them, they found the CJ guilty as charged.
    They pronounced the verdict of guilt on some chosen charges. They pronounced the verdict of non-guilt on some others, and dropped yet some others.

    An investigator investigates, the classical example being a police investigation. They have no empowerment to find the suspect guilty. They cannot return a verdict in his regard, guilty, not guilty of some or other charges. An investigator just hands in the report of the investigation. A tribunal acts on it and comes to a verdict which inculpates or exculpates the suspect.

    The mandate of the PSC was to act as a tribunal. What they are submitting to the speaker is the verdict guilty as charged

    The end defines the entire process and makes it what it really is. The end being arriving at the verdict guilty or not guilty (guilty in this case), the entire process was geared to that end. That was what made the PSC exercise a judicial process.

    Mario Perera
    Kadawata

  9. Lorenzo Says:

    Mario,

    You are more respectable than SB CJ. You call a spade a spade.

    So let’s look at the happenings objectively.

    1. Why did the CJ walkout of the PSC? You cannot walk out of a tribunal, court, forum or a gathering “in protest at the manner in which he proceedings were being conducted, if it is about you.” What if all accused, etc. parties start doing this? Any accused or a subject of an investigation can say, “I’m against this proceedings and I leave”. You have to FACE IT!

    But others CANNOT do this. She does this because she is the CJ (above the law and above everybody – so she thinks) !!

    2. PSC is ONLY investigating. Their investigation report will be presented to the speaker. The JUDGEMENT comes on January 11 (?) when the report is put to the whole parliament.

    It is like a forensic investigation report presented to the judge and the jury. It will say Mr. A’s DNA matches with the DNA of the criminal from what he left behind at the crime scene. AFTER it is presented to the JURY, it will make a decision if Mr A is guilty or not. But the forensic investigation report ALREADY found the culprit. The judge or jury will only decide it.

    3. SC judgment says the PSC cannot decide if CJ is guilty or not. It does not say the parliament cannot decide. The parliament will decide.

  10. mario_perera Says:

    Dear Lorenzo,

    Whatever has to happen will happen now.

    I have only one more thing to add…just to say how glad I am to see you participate in these debates. I must admit I am a member of your unofficial fan club.

    Kindest regards,
    Mario

  11. Charles Says:

    Thank you Lorenzo. You state facts so well…

    The Appeal Court Jokers want the Impeachment to be a legal affair, they cannot understand that it is an investigation by the Legislature, and not the Judiciary.

  12. Sam Perera Says:

    A constitutional crisis is not something we can cheer about.

  13. douglas Says:

    Thank you all. I am pleased to note Lorenzo has mellowed down very much and got into the debate. It is a good sign.

    We have to get out of this mess. A course of action has to be evolved and no doubt abou it . If PSC is an “investigative limb” of the Parliament, one could argue that it cannot make a decision and pronounce a person has been” found guilty”. It is this “decision of proved guilty” that is the core of the subject matter that received the consideration of the Supreme Courts in interpreting the Constitution. The Appeal Court pronounced that “interpretation” sent to them. We cannot therefore brush it aside just saying it is a decision of the “Appeal Court Jokers” (as stated above by Charles). In my opinion, that type of approach is not a healthy development.

    As mario_perera correctly pointed out, an Investigative authority has no power to declare a “person has been proved/found guilty”; but it can forward its findings and submit a report for consideration by the “Appointing Authority”. That is exactly what should have been done, instead of making a public announcement of “CJ was found guilty”of three charges. That is the “report of findings” that would be debated in Parliament and voted on.

    Now again, one would ask: What is the use of a “report of findings” approved by the Parliament be submitted to the HE The President?. The answer could be: It is the HE The President who is the ultimate “Authority” to decide whether CJ must be terminated or not . Incidentally even the Supreme Court has agreed on this vested authority on the HE The President. Please refer to the Order of the Supreme Court. In making that decision, he can have the facility of obtaining the advice of anyone or more persons whom he thinks should be consulted before arriving at a final decision. This could be one way of solving this porblem.

    Another way to address this issue could be to “forward the fact finding investigative report” of the PSC to an “Independent Body” appointed by the HE The President with specific terms of reference of inquiry and provide all facilities to the “accused” as per the “Rules of Law” of defence. This course of action would be in compliance with the Court of Appeal order too. This could be a consultative process too, as pointed out in above paragraph.

    In relevance to this subject, it is very important to refer to the ruling given by Late Hon. Anura Bandaranayake MP as the Speaker of the Parliament in 2001. This ruling was made use of by the present Hon.Speaker recently in declaring that the Parliament is “Supreme”. But unfortunately, a statement that followed his ruling has been completely ignored over the years by all succssive Governemnts resulting in draging us to this type of “mess in governance”. That statement is as follows”

    ” However Members of Paliament may give their mind to the need to introduce fresh, legislative or amend the existing Standing Orders regarding motions of impeachment against judges of the Supreme Courts……..”

    The above statement appeared in the Hansard dated 20-6-2001 and has been mentioned in the Supremen Court order too. This was not followed by anyone in authority and as usual completely ignored resulting in causing immense problems to any Government. Hope at least this time this will receive the urgent attention of the “authorities”.

    Over to you my friends. Tthank you.

  14. Wickrama Says:

    Mario, well Lorenzo has given you the answer. I suppose I don’t have to duplicate/expand, do I ?

  15. Marco Says:

    Will MR behave in a true Statesman manner or is he prepared to go from one crisis to another (ducking and heaving)

  16. Lorenzo Says:

    Thank you all for a worthy debate.

    As Sam says a constitutional crisis as now is not a good thing.

    The 3 branches of the country should work TOGETHER. LTTE was the 4th one before 2008.

    At other times they should keep each other in check!! This may be the ultimate casualty which is very unfortunate. We have an all powerful president (the best ever until 2010, the best available after 2010). 160 yes men in parliament out of 225. 6-8 yes men in SC will eliminate all checks and balances.

    It boils down to —> loving SL is NOT EQUAL to loving (or hating) the ruling party!!

    I hope they all find the HAPPY MIDDLE – a mental state without love or hate among president, parliament and SC.

  17. NeelaMahaYoda Says:

    Dear Lorenzo de Almeda and Others’

    I wonder why you need a hair splitting argument for a simple thing like this.

    It is not a judiciary review or anything analogous to a criminal trial. It is only an ad hoc Parliamentary select committee review that reports there is some prima facie evidence to show the Chief Justice repeatedly committed perjury by submitting false financial disclosure for number of years and also concealing things of value that she solicited and received from companies appearing in litigation before her.

    The committee has agreed on majority vote that further consideration of impeachment of Chief Justice might be warranted for.

    Then it is up to the parliament to debate on the evidence presented and take a vote to recommend president for disqualify her from ever holding office again and dismiss her purely on the basis of her failing to meet the competence, integrity, probity, and independence that required by a chief justice.
    That is the end of the Story!!!!

  18. Lorenzo Says:

    NMY,

    That’s what I said in the earlier argument in layman terms.

    Police investigation team = PSC (ONLY investigation)
    Judge/jury = parliament (judicial powers)
    Executioner = Executive (not really)

    I agree this simple matter need no further complications.

    The quicker SB is SACKED the better.

    BASL, LTTE Chadra Jayarathna dirt, Pakiyasothi, NGO attempts to mobilise people against the impeachment FAILED.

    That means people don’t care about this CJ and happy for their representatives in parliament to do the needful.

  19. Lorenzo Says:

    Lack-siri has got it wrong.

    “Will MR behave in a true Statesman manner or is he prepared to go from one crisis to another (ducking and heaving).”

    A true statesman will not please a minority.

    If MR is a true statesman he should SACK SB and appoint a pro-UNITARY Sinhala Buddhist as CJ and revamp the SC judges panel with more and more Sinhala Buddhist judges.

    BTW MR THRIVES on crises!! Who was defeated in EVERY CRISIS? LTTE-TNA-JVP-UNP-NGO!!

    Wait till the Bill is passed in the NEW SC. That will be the last nail on the coffin of devolution MFs, NGOs and FOUTH INTERNATIONAL LOSERS.

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