Impeachment pot– lower the heat

| by Manik De Silva

(December 22, 2012, Colombo, Sri Lanka Guardian) The impeachment pot remains on the boil and nobody is lowering the flames. Three judges of the Court of Appeal on Friday issued notice on the Speaker, the members of the Parliamentary Select Committee and the Secretary General of Parliament. The public, generally, do not distinguish between the issuing of notice and the issuing of summons. Notice involves informing a concerned party about the adjudication of a matter in which that party has an interest; summons are in effect a requirement to be in attendance in court at a specified date and time. The Speaker has already issued a ruling on notice issued regarding a different petition on the impeachment and it can be reasonably surmised that the reaction this time round will be no different. What was seen as a “nullity’’ then cannot be seen otherwise now. The judges, as done previously, couched their order in extremely chaste language indicating that they have no wish to plunge into a headlong confrontation with the legislature, one of the three legs of the separation of powers of the State. But the message remains clear – the judges believe that the matters canvassed are within the purview of judicial review. Otherwise the petition would be thrown out of hand. Parliament, or at least its UPFA component, obviously does not think so.
So where do we go from here? Only time will tell. The courts vacation of a few days will intervene giving all concerned a limited window to wind down the conflict that had been escalating ever since the smelly stuff first hit the fan. It is unlikely that the chief justice or her lawyers anticipated a favourable result from the Court of Appeal adjudication on Dr. Shirani Bandaranayake’s petition. Even if the court holds in her favour, it is less than likely that the president and the government will climb down unless events that are not visible at present intervene. There is not even the slightest hint of such developments at the moment. Meanwhile the situation continues to provide soap opera in the form of a complaint by anti-impeachment activist Gunaratne Wanninayake complaining of an effort to rough him up, shots being fired at the home of Bar Association President Wijayadasa Rajapakshe, MP, (sweetened by a presidential visit to the scene with photographers in tow) and a Golden Key depositor climbing a tree in Hultsdorf. Then former BASL official Upul Jayasuriya has complained that a website had identified four targets, that two wickets are already down (Wanninayake and Rajapakshe) with two remaining – himself and no less than the CJ herself. We do not know whether Mr. Basil Rajapaksa’s assurance that Golden Key deposit repayments will be made by April was insufficient for the tree climber but the fact that he chose a tree close to the temple of justice tells its own story.
The CJ’s petition drew public attention to the 66th proceedings of the United Nations Human Rights Council (UNHCR) in September 2002 when the Government of Sri Lanka submitted a 125-page report which had inter alia stated that “the Parliamentary Select Committee on any impeachment of a member of the judiciary is subject to judicial scrutiny. Any breaches of the rules of natural justice committed by any such PSC are also subject to judicial review.’’ What a government delegation, even if it includes the country’s Solicitor General, tells a UN body is of course not the law of Sri Lanka. But when such statements are solemnly made on these occasions are rubbished by subsequent conduct on the ground, how seriously will we be taken in the councils of the world? We are not concerned here by the substance of the various charges laid against the CJ. What is worrying is the procedures that have been adopted at the PSC in determining their rights and wrongs. If the CJ is given a fair “trial’’ that every citizen of this country is entitled to, and she is found guilty through an impartial procedure, nobody will or should quarrel with whatever punishment that is imposed.
There was a grievous error on the part of both the executive and the CJ in her spouse being granted patronage appointments first as Chairman of the Sri Lanka Insurance Corporation and thereafter as Chairman of the National Savings Bank. Other Supreme Court judges too have been similarly favoured in the recent past. Under no circumstances should somebody holding the high office of chief justice of this country be under obligation to the appointing authority. That is self-evident. It can be argued that an out-of-turn appointment where the most senior judge has been overlooked or making an appointment from “outside’’ could entail a sense of obligation and many people will believe that to be so. Mr. Neville Samarakoon was one such appointment but his conduct as CJ more than amply satisfied the public at large, though perhaps not the appointer whose agenda was different, that the Supreme Court was in good hands. But giving the spouse of a CJ what is widely regarded as a patronage appointment, as understood in this country, makes the sense of obligation doubly or trebly so. We do not know whether such appointments were solicited or not. Either way, they were bad and the fact that they flew in the face of propriety was commonly spoken about at the time they were made. What happened when the NSB under Mr. Pradeep Kariyawasam paid way over market price to buy into The Finance Co. PLC is too well known to be repeated.
Prof. Carlo Fonseka, a valued contributor to this newspaper, has in his inimitable manner through a process of logical deduction argued in this issue of the Sunday Island that CJ Shirani Bandaranayake should not occupy the position of chief justice while proceedings against her husband are under way. He sees this as constituting “a screaming case of conflict of interest.’’ Others urge that justice must not only be done but seen to be done as the well known maxim has it. However, unless and until there is any interference with the case that is being heard in a magistrate’s court, there is no impropriety, supporters of the CJ say. Given the public profile of the CJ herself in relation to the criminal prosecution of her spouse, it is not just improbable but impossible that she would interfere in the slightest, we believe. However that be, there are no signs whatever that there is any ratcheting down of the most unfortunate situation facing not only the dramatis personae involved but the country itself.
( The Writer, Editor of the Sunday Island, where this piece was originally appeared)

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