Impeachment: A post-mortem

| by Udaya Gammanpila
Views expressed in this articles are author own 

( December 19, 2012, Colombo, Sri Lanka Guardian) The impeachment motion against the Chief Justice passed an important milestone last week.  The Parliamentary Select Committee (PSC) submitted its report to the Speaker after the completion of its inquiry.  According to the Standing Orders of Parliament, the parliamentary debate on the report should commence only after the lapse of one month.  Hence, all parties are expected to maintain silence on the issue for this month.  Unfortunately, nobody wants to observe this rule.  This columnist does not make an attempt to break the rule by discussing the contents of the report.  Nevertheless, let us shed light on the events associated with the impeachment. 

A member of the Select Committee, which probed the allegations against Chief Justice Neville Samarakoon in 1984 is still in Parliament.  He was then an opposition parliamentarian and presently holds the office of Chief Government Whip. That is Minister Dinesh Gunawardena.  Once he had a chat with me recalling events associated with the impeachment.

According to him, the then government did not allow the CJ to enter the Parliament premises in his vehicle.  When Gunawardena was travelling towards the Parliament, he found the police was body searching the CJ.  He shouted at the police officers and got the CJ into his vehicle.  Further, the CJ can appoint only one lawyer to represent him in terms of Article 107.  The then government strictly implemented the provision and the CJ was allowed to appoint only one lawyer.  The CJ had to wait outside the Committee Room for nearly two hours before being called inside.
A cordial beginning
Fortunately, there were no such unpleasant incidents when the present CJ attended the proceedings of the Parliamentary Select Committee (PSC).  Although the CJ was entitled to nominate only one lawyer, six lawyers nominated by her were accepted by the PSC.  Not only the CJ but also her lawyers were allowed to enter the parliamentary premises in their own vehicles.  This was an exclusive privilege afforded to them, because even a Chief Minister is expected to use the shuttle service from the first security point onwards.  There were no long waiting times for the CJ before commencing the proceedings.  Indeed, it was a cordial beginning.
Unfortunately, the CJ lost the grip of the impeachment process and it is now controlled by the opposition.  Hence, it was heavily politicized by her camp.  The CJ chose the Court premises instead of her residence, to leave for the impeachment investigation at Parliament.  Strangely, she used the public entrance in place of the judges’ entrance to come out of her office, creating an opportunity for lawyers to shout slogans in her support.  Lawyers shouted slogans such as ‘Long live our CJ!’ and ‘Down with the impeachment!’  There might have been lawyers, who wanted to support the CJ with a view to receiving favours in the cases heard before her.  This behaviour was unprecedented because Chief Justice Samarakoon, Justices Collin-Thome and D. Wimalaratne never behaved in that manner.  Nobody knew their departure times and venues.
The CJ behaved more like a politician than a judge on the first day of the impeachment investigation, the day she faced an inquiry held by her disciplinary authority.  Parliament plays a judicial role in respect of the President and Senior judges.  People closely observe the manner the judges respect their Court to decide how they should respect the Courts headed by judges.  If people behave like the CJ when they also come to Courts, the judiciary will become a mockery.
The Prime Minister is ranked before the Chief Justice in the Protocol of Precedence.  However, if the juniormost Magistrate warrants him to appear before the Court, he will dutifully do that.  The PM stands and respects the magistrate when he arrives in Court.  He respectfully accepts the order of the Magistrate irrespective of its reasonability or severity.  Although the Prime Minister has not been summoned by criminal Courts in the recent past, a senior minister was bailed out by a Magistrate recently.  Minister S. B. Dissanayake was imprisoned for two years.  Several parliamentarians, provincial councillors and heads of local authorities had been in remand for years and months.
When the Supreme Court held that President Kumaratunga’s term would end in 2005, instead of 2006, she did not organize protest marches.  She did not criticize the judgment.  She bowed her head to the Supreme Court and left the office.  Several years ago, the Magistrate’s Court decided to remand the son of the minister, who is notorious as a ‘thug minister’.  However, he did not organize a protest before the Court.  He did not threaten the magistrate.  Instead, he addressed the media and said “I respectfully bow my head to the order of the Court of Law”.
Imagine the fate of the Courts of law, if an indecent minister decides to follow the example set by the CJ.  When a minister is warranted to appear before a Court, the minister decides to leave for the Courts from the ministry.   The supporters shout slogans such as “Down with the Courts! and “Let’s ignore Court orders”. We cannot expect the ministers to stop at the same point where the CJ stopped.  The ministers may go beyond that.  Hence, the supporters of the minister may come to the Court as well.  It is quite possible since Courts are not restricted places like the Parliament.  They may use abusive language on the judge and demand him to discharge the minister.  If the order is against the minister, they may occupy the Courts until the order is changed.  They may physically abuse the judge and police officers would ignore these happenings because of the presence of the minister.  Hence, the precedence set by the CJ is the biggest threat to judicial independence, in my point of view.
When the impeachment proceedings were in progress, the CJ decided to walk out stating she had no confidence in the process.  She should have participated in the process until its conclusion, as a mark of respect for the Constitution of the Nation, although she was not satisfied with the process.  She had the opportunity to challenge the report of the Select Committee nationally and internationally after the conclusion of the proceedings.
There is a risk of politicians, leading businessmen and notorious thugs withdrawing from legal proceedings claiming they have no confidence in the legal proceedings following the precedence set by the CJ.  If they withdraw from the process, the judiciary can warrant them.  If they say “We have the right to boycott the Courts as the CJ did”, Police will not arrest the warranted persons.
The judiciary can maintain its dignity only if the Courts are respected by the Executive.  In the present context, Police arrest and produce warranted persons before the Courts.  Prison Officers remand the accused as ordered by Courts.  The Government Analyst Department and other agencies produce reports and documents as directed by the Courts.  If the Court orders are ignored by the Executive, the judges will be helpless as much as a beggar on the street.   Hence, the CJ’s decision to leave the impeachment proceedings may bring long lasting repercussions.
Rude behaviour unbearable
According to certain reports, the CJ decided to leave the PSC because the committee members’ rude behaviour was unbearable. I felt really sorry for her when I heard this because she was very Courteous as a judge of the Supreme Court.  I have never seen her being rude to lawyers or litigants.  She used to apologize when she failed to commence the Court proceedings at the scheduled time.  However, Minister Anura Yapa, as the Head of the PSC, officially denied this rumour.  Since I was disturbed by this news, I personally inquired from Minister Susil Prema jayantha about this incident.  He categorically denied the rumour and said the CJ in fact did not speak at all.  He admitted there were heated arguments between her lawyers and the members of the PSC.
I, as a lawyer, have been subjected to the rudeness of the judges.  Some judges are very rude to both lawyers and litigants.  In addition to judges, litigants are subjected to the rudeness of the lawyers as well.  Most of the rape cases are withdrawn on the basis there is no evidence.  In reality, the rape victims want to withdraw the cases as they do not want to be verbally raped by the lawyers.
The CJ’s legal team consisted of seasoned lawyers.  Hence, she should have kept her legal team there if she really wanted to leave, as in terms of Article 107 of the Constitution, she can appear in person or by representative.  Unfortunately, she did not rely on this provision.  Because of her conduct, there is a risk of powerful persons withdrawing from Court cases, claiming they have no confidence in the Courts.

 Subscribe Us


Author: Sri Lanka Guardian

Sri Lanka Guardian has been providing breaking news & views for the progressive community since 2007. We are independent and non-profit.