( December 13, 2012, Melbourne, Sri Lanka Guardian) I write in response to the Sri Lankan Guardian article ‘Impeachment Motion: Report in haste, repent at leisure’ by Ms Dharisha Bastians of the Financial Times.
Any act by the Government in breach of the provisions of the Constitution should be felt by the legal fraternity. To the extent the fraternity is driven by what happens in breach of the provisions of the Constitution, to their chiefs more than by what happens to those outside their fraternity, also in breach of the provisions of the Constitution – their actions in protest are selfish and do not qualify as being in the interest of the whole nation and its system of managing Justice.
A very interesting article and I was especially attracted to the part about President Mahinda Rajapakse’s statement that ‘he would appoint an independent committee to review the report by the Parliamentary Select Committee submitted to Parliament on Saturday’ during the inauguration of a four-storey building for the Institute of Chartered Accountants of Sri Lanka at Malalasekera Mawatha in Colombo . The Institute is my Alma Mater and hence the additional interest. Ms Bastians observes ‘For a nation that has been bristling over the process undertaken to remove the Head of Sri Lanka’s Judiciary, the statement came as resounding shock. In his speech to the Chartered Accountants gathered there, who he acknowledged as being largely supporters of the opposition UNP, the President said that he had not been in favour of the impeachment motion from the beginning, but a group of MPs had ‘gathered the evidence’ and put the resolution forward in Parliament’
If we view this through the Parliament’s investment or lack of it in the system of Democracy – which requires shared leadership – just like in contemporary family structures – we would not be ‘shocked’. Sinhalese leaders have demonstrated great reluctance to recognize the natural right of other communities to govern themselves through their own beliefs. Those who were shocked by the Government’s actions towards Tamil civilians and the victims of war after May 2009 – would have actually expected such exertion of authority over the Judiciary. The LTTE was their de facto opposition as well as partner. Judiciary is official partner and opposition. All those who take comfort in their professional positions would have tended to view the Vanni war as outsiders and hence would have been shaken out of their comfort zones when their own front doors were violently knocked down.
Ms Bastians reports ‘The legal fraternity reacted instantaneously, claiming that it was an admission by the President no less that the process was unlawful and the report of the Committee flawed. Mobilising at breakneck pace, the Lawyers Collective demanded the immediate withdrawal of the PSC report and an independent and fair trial for the Chief Justice.’
The parallel of the PSC process in the case of the war against the Tamil Tigers, was also the process of war which happened with blatant disrespect for rules of combat. More importantly, civilians were not protected and this has resulted in the war being seen as a war against Tamils. In Public issues – the objectively measurable effects confirm the cause. In both instances ‘sovereignty’ was the cover for interference. Every Sinhalese going into Tamil areas and attacking outside her/his Administrative powers – using individual thinking – was / is interfering. In the case of the University of Jaffna – the memorial flames confirm religious beliefs and by acting as they did the Government’s armed forces acted in breach of Article 14 (1) (e) of the Constitution of Sri Lanka which states ‘Every citizen is entitled to the freedom, either by himself or in association with others, and either in public or in private, to manifest his religion or belief in worship, observance, practice or teaching’
What has the Judiciary as a body so far done to protest against the Government’s actions at the University of Jaffna? Ms Bastian observes ‘Constitutional Lawyer and Activist, J.C. Weliamuna said that for the legal fraternity, this was not about protecting an individual. “This is about protecting the office of the Chief Justice, the judicial system and the people from undue interference by the Executive that is deeply damaging to democracy and the rule of law,” he said.’
Any act by the Government in breach of the provisions of the Constitution should be felt by the legal fraternity. To the extent the fraternity is driven by what happens in breach of the provisions of the Constitution, to their chiefs more than by what happens to those outside their fraternity, also in breach of the provisions of the Constitution – their actions in protest are selfish and do not qualify as being in the interest of the whole nation and its system of managing Justice. The Constitution is the highest common measure for the whole nation. When preference is being given to an internal chief over an external citizen during the same time period – using that measure – that confirms the reason why the Judiciary have lost power as per the laws of Natural Justice. A Democratic Judiciary would have protested more against the breaches of Article 14 (1) (e) and less against breach of Article 4 (c ) of the Constitution. The real power is with the People. The Judiciary needs to start doing some bottom-up work – starting with the lesson learnt through this experience.