| by Basil Fernando
( December 31, 2012, Hong Kong, Sri Lanka Guardian) The state media continues their non-stop misinformation campaign on the impeachment move by the government. Several ministers also participated in this media campaign. The central topics of the campaign are that it is the charges that are important, and not the process – meaning that whether the inquiry took place by a competent and impartial tribunal does not matter – and that judicial review into the proposed actions of the executive, such as the Divenaguma Bill, amount to sabotage.
If this campaign approach is correct, then there need not be any trials regarding anybody charged with anything in Sri Lanka. All that needs to be done is for the public to debate on the charges. For example, if someone is charged with murder or rape or fraud, then radio programs should be held, where discussions could be conducted on these charges. Of course, in this instance, only those who are making the charges are allowed to speak in these programs. Even if it was otherwise, this would simply make the right of having a fair trial completely unnecessary.
In the same line as this argument was the statement of Minister Rajitha Senaratne, who said that Mr. Romesh De Silva, the Senior Counsel appearing for the Chief Justice, and the rest of the legal team, raised hairsplitting arguments before the PSC. What a dentist such as Rajitha Senaratne thinks of a legal argument is hard to imagine. Suppose a patient who goes to get medical treatment were to protest that the doctor is calling for X-Rays, blood reports, urine reports and many such tests, saying that all he needs is treatment for his illness, and that all these tests are a waste of time. This is similar to saying that the issues raised by lawyers are “hairsplitting”.
That brings us to the issue of why a fair trial is conducted by impartial and competent persons, and why certain procedures are followed. Fair trial is a legal concept. It involves many complicated issues, such as how the truth of a matter should be inquired into before conclusions are arrived at; what rights the person accused of charges has in the process of such an inquiry; what rights the lawyers representing both parties have in raising issues which relate to the legal process; and in what manner the impartiality of the tribunal and the competence of the persons to deal with all these complicated issues are guaranteed. Just as not just anybody can practice as a dentist (if it was otherwise, it would be a rather dangerous situation), similarly not just anybody can practice as a judge. If this is not the case, trials could be held by dentists or accountants or others, and that would of course be an absurdity.
Also, the absence of bias is an essential element of a judicial officer. Even a competent and experienced judge who has a bias relating to some aspect of a case is expected to step aside and, if they don’t, the final judgment will be held invalid solely on that basis. In the famous Pinochet case, the judgment was set aside solely on the basis that one of the judges had a previous connection with Amnesty International, which brought the case. There was no allegation at all that the judge deliberately acted in favour of the plaintiff. The mere fact of such distant connection was considered adequate for him to be disqualified.
All the seven members of the government in the PSC are naturally biased on this matter. In fact, if they were not so, they would not be allowed to continue as parliamentary members on behalf of the government. This is not a case where there can be any doubt about the bias. Thus, one of the cardinal principles of a fair inquiry was violated in this instance. This is like a relative of a murder or rape victim being the judge in a case relating to the same murder or rape.
The United Nations Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, has mentioned the principles that are universally followed in the case of the removal of judges.
“The misuse of disciplinary proceedings as a reprisals mechanism against independent judges is unacceptable.” In her view, the procedure for the removal of judges of the Supreme Court set out in article 107 of the Constitution of Sri Lanka allows the Parliament to exercise considerable control over the judiciary and is therefore incompatible with both the principle of separation of power and article 14 of the International Covenant on Civil and Political Rights.
As regarding Australia, two law professors have summarized the principles followed relating to such matters in their country.
Professor Adrienne Stone and Laureate Professor Cheryl Saunders AO
Judicial removals are treated by the vast majority of governments with the utmost seriousness. As extraordinary decisions that must only be made in extraordinary circumstances, judicial removals must be treated with that level of seriousness.
Australian and international standards on the removal of judges from office clearly reflect a requirement that prior to any consideration by a parliament to remove a judge, a thorough, cautious, fair and independent investigation into alleged misconduct or incapacity by former judicial officers must take place.
Any procedure which does not fulfil that standard is inimical to the rule of law and the independence of the judiciary, and no government that refuses to afford its judicial officers these standards of protection can claim to legitimately represent its constituent people, or act with the legitimate authority which only the people may bestow upon their governors.
For their full statement, please see here
Now, as far as Sri Lanka is concerned, what is needed is to have a campaign through the radio or another medium on the charges.
Regarding the other aspect of the campaign, that the Divenaguma judgment was sabotage, there is no charge to that effect made against the Chief Justice. Anyway, by this it would be implied that all review of the proposed legislation would amount to sabotage if the judges gave an opinion adverse to the government. If the obligation under the constitution is that the judges should have favourable decisions regarding all the bills presented by a government, then, in fact, there is no purpose in placing them before the courts at all. The constitutional obligation is for the Supreme Court to say whether the proposed bill is in conformity with the constitution and, if that is not so, to declare it. Thus, these state media attacks on judicial review, calling it sabotage, are an attack on the constitution itself.
One of the purposes of the impeachment is to create a stooge judiciary, which means a judiciary that will not declare bills to be unconstitutional even if they are. It was on this basis that it was argued on the Sri Lankan state media that, in the United States, judicial review was invented by a “devious” and “cunning” person. It was argued that the United States constitution does not have judicial review. That judicial power implies judicial review was scorned. That is as if to say that someone having a nose does not imply that he can breathe, or that someone is an alcoholic but he does not drink liquor.
This whole approach of conducting an inquiry by way of giving the highest possible publicity to the charges is a dangerous and primitive practice, against all legal and ethical norms. Such media campaigns are hate campaigns and an incitement to violence. This will put Sri Lanka behind civilization by several centuries.