| by Manik De Silva
( December 16, 2012, Colombo, Sri Lanka Guardian) The ongoing attempt to impeach Chief Justice Shirani Bandaranayake continues to hog the national limelight and is the subject of learned debate and conversations in the drawing rooms of the elite and the tea boutiques patronized by ordinary people. President Mahinda Rajapaksa, with his much publicized remark made a few days ago that that he intends to have the whole matter looked at by an independent committee, implied that the finding of the Parliamentary Select Committee and the UPFA’s steamroller majority in Parliament was not the last word on the matter. However, he was clearly not willing to be drawn into the subject of this committee when he met newspaper editors and media heads on Thursday morning, fending off a question on this matter by saying that he’s still not got the report. But the president was obviously prepared to face a barrage of questions on the impeachment judging by the fact that he had most of the members of the PSC on hand when he met the press. He, in fact, encouraged them to respond to questions and express their opinions and Messrs. Anura Priyadharshana Yapa, Susil Premajayanth, Dilan Perera and Wimal Weerawansa had quite a lot to say. The president did not in any way show that he disagreed with the PSC in possibly seeking other opinion – quite the contrary.
As our front page indicates today, Mr. K.N. Choksy, PC, has now raised a further conundrum on the subject in a statement issued on Friday. It is useful that a lawyer of his eminence, now living in retirement, chose to raise this topical matter at the present moment. Once President Premadasa’s trusted counsel, Choksy has served UNP governments as a senior minister responsible for subjects like justice, constitutional affairs and lastly finance. He is clearly of the view that in the event the so-called independent committee adopts a view different to that of the PSC, the view of Parliament – that is that of the PSC and the majority of MPs – must prevail. Formulating the matter at issue briefly and succinctly, Choksy posed the question: Whose view prevails? That of Parliament or the President? His answer is unambiguous. “My considered view is that the opinion of Parliament prevails and takes precedence,’’ he has said. He has gone on to explain why, saying that both Parliament and the President are elected representatives of the people.
“Upon a consideration of Article 107, my opinion is that the decision of Parliament will be given effect to. I state so because Parliament represents the collective will of the people. Furthermore, Article 107(2) stipulates that the Address of Parliament to the President must be supported by the majority of the total number of Members of Parliament. This would be 113 Members, who voice the view of the people whose representatives they are.’’
This opinion, if accepted, would obviate the need for the appointment of the “independent committee’’ in the event the president does receive the address to remove the Chief Justice. What is said there is that the president’s hands are tied and there is nothing more he can do about the matter. He can, of course, ensure that the necessary majority is denied by Parliament. But only the totally naïve would believe that this whose exercise was without the president’s blessing and if there is to be any back pedaling, it is the president who must do so. Given the way that the system works since the executive presidency was foisted on this country by the J.R. Jayewardene Constitution of 1978, everything flows from the top. It would be generally accepted that even when letting then Chief Justice Neville Samarakoon off the hook with a stricture, the then president’s nod would have been obtained. After all that PSC sat for several months until Samarakoon reached his age of retirement. That select committee did not conclude its sittings at breakneck speed like this one has. The extensions that Parliament granted that body to complete its work also enabled tempers to cool; and Samarakoon, who had demonstrated a sturdy sense of independence and integrity on the bench, was eventually allowed to retire and emigrate. He did so with dignity, saying nothing about the ordeal he had to suffer and held his peace for evermore. Not so at least one of his successors who is ever willing to freely express his opinions on controversial matters.
No doubt the president will refer the independent committee matter to the Attorney General who is the principal Law Officer of the State if he is serious about taking such a step. Despite the protests building up both domestically and externally, the government at least at present appears intent on pressing this matter to the bitter end. Everything that has been said on this subject up to now, including at the president’s meeting with editors last week and the stridency of the state media, points in that direction. Minister Yapa insisted that the CJ had been treated courteously at the PSC although her lawyers have written to the speaker quoting some words allegedly used. Yapa said the proceedings were taped and a verbatim record is part of the report. Editing is of course always possible and public are well aware that not everything said in the parliamentary chamber appears in Hansard. One former secretary general of the assembly once said that Hansard is “the clerk’s minute of proceedings’’ and not necessarily a verbatim record as commonly believed. Eventually the whole business of any pissu geni references will be one person’s word against that of another.
It is unfortunate that given the fact that all the charges that were made were published, they were not all examined. The PSC’s rationale was that three of the charges on which it had determined guilt were sufficiently grave (presumably warranting impeachment), it was not necessary to go into all the charges laid at the CJ’s door. That position also suggests the desire to finish off the inquiry quickly, something which was borne out by the speed with which the report was written. Not everything said at the president’s meeting with the press was correct. One example is the statement that only Mr. Nadesan was permitted to represent CJ Samarakoon at the previous PSC. Other lawyers were present there, those familiar with the matter have told us. To our minds the most serious among the charges appears to be that the CJ, acting for her sister in the purchase of a residential unit from a Ceylinco Group company or associate, had chosen to preside over a Golden Key case in the Supreme Court. Hopefully, all that is material in this matter will be quickly laid in the public domain so that the people can make up their minds on whether or not there was any conflict of interest.
( The Writer, Editor of the Sunday Island, where this piece was originally appeared)