The President and the parliament should desist from any actions that are unconstitutional and illegal by proceeding further on the impeachment
( January 8, 2012, Hong Kong/ Colombo, Sri Lanka Guardian) The Court of Appeal in Sri Lanka has issued a writ of Certiorari, declaring that the determination and the findings and/or the decision or the report of the Parliamentary Select Committee constituted to impeach the incumbent Chief Justice of Sri Lanka is unconstitutional, illegal and is therefore quashed.
The decision ends all legal basis of the current process underway in Sri Lanka to impeach the Chief Justice, Justice Mrs. Shirani Bandaranayake. According to the Constitution of Sri Lanka, the President can address the parliament to impeach the Chief Justice only on the basis of proven misconduct. The Court of Appeal has declared in its judgment delivered yesterday, that no such finding exists. Thus today, the Government of Sri Lanka has lost its foundation to further proceed with the impeachment.
It is elementary, that any further proceedings by the government, or the President of Sri Lanka and the parliament contrary to the Court of Appeal’s writ is nothing less than an open and blatant violation of the Constitution of Sri Lanka.
Contrary to the writ of the Court of Appeal, if the President proceeds to address the parliament urging it to impeach the incumbent Chief Justice on the basis of the report of the Parliamentary Select Committee (PSC), that is now declared to be unconstitutional and hence non est in law by the Court, the President will be openly negating the Constitution of Sri Lanka. In that his action will have no authority in law and is hence unenforceable.
On a similar footing, if the parliament proceeds to debate or votes on the impeachment based on the report furnished by the PSC that is declared illegal by the country’s court, the members of the parliament who participate in the debate will also be violating the constitution. Thereafter if the government physically proceeds to remove the Chief Justice and appoints another person as the Chief Justice, the President will again be openly and blatantly violating the constitution.
If the government continues with the impeachment procedure according to its existing schedule, and the Chief Justice is removed from office by force, Justice Mrs. Shirani Bandaranayake, will continue to be the constitutionally appointed Chief Justice in office in Sri Lanka. Any person the President appoints, allegedly as the Chief Justice in lieu of the incumbent Chief Justice, will have no constitutional writ or cannot preside in a court as the Chief Justice of the country, nor would the decisions made, administrative or judicial by such person, have any binding in law. Lawyers or litigants will have no purpose to appear before a body presided by such a person.
Further, the presence of such fictitious and illegal authority within the Supreme Court of Sri Lanka, will be a mere usurper to the office of the Chief Justice and not the Chief Justice of Sri Lanka. No judge, lawyer, litigant or members of the court staff could be asked to serve such person, and in fact serving such person would be illegal and hence contempt of court.
Besides in the event of any new “Chief Justice” is appointed this appointment could be challenged in the court on the basis of the judgment of the Supreme Court and the Court of Appeal. In such an event the court would have no option but to declare that the appointment unconstitutional and illegal. And thus there will be a constitutional deadlock relating to any further appointment to the position of the Chief Justice.
To prevent this situation, it is the obligation of the Bar Association of Sri Lanka, to oppose any further move by the President, the members of the parliament or by any usurper to the office of the Chief Justice.
Any act that contravenes the decision of the Court of Appeal concerning the illegal impeachment process under way, whether it is carried out by the President, the members of the parliament or by any judge usurping to occupy the office of the Chief Justice will adversely affect the constitutional fabric of Sri Lanka, will be against the will of the founding fathers of the country, and illegal. Such acts will negate the legal fiction and constitutional authority upon which the country is declared a ‘democratic, socialist republic’.
It will wipe out forever, judiciary as an institution in Sri Lanka, and judges, irrespective of their ranks reduced to executive officers and lawyers having no profession to pursue. The resultant environment will certainly be chaotic, with litigants, whether it is individuals or a body corporate, having no place to pursue their lis or rights. The country could plummet into a rouge state where investments and businesses would have no guarantees and civil liberties having no meaning.
Thus to further proceed on the impeachment is to open the country for a infinite sea of unconstitutional and illegal actions which will vitiate and pollute all aspects of liberties. The legal foundation of Sri Lanka will be threatened and fundamentally undermined by any further process relating to impeachment against the writ by the Court of Appeal.
If the President and the parliament proceed against the writ of certiorari issued by the Court of Appeal, the very notion of judicial independence will loose meaning in Sri Lanka. This would mean the singular direction in which judiciary as an institution will be tread, that is to function under the leadership of an usurper, who claims to be the Chief Justice of the country and whose actions will have no constitutional authority or legality. That would affect all the judges and all the courts in all the actions.
The Asian Human Rights Commission (AHRC) calls upon the President of Sri Lanka and all members of the parliament to respect and abide by the decision of the Court of Appeal, issued yesterday in the case C.A (writ) 411/2012.
The AHRC calls upon the Secretary General of the United Nations, the United Nations High Commissioner on Human Rights and the UN Special Rapporteur on the Independence of Judges and Lawyers to intervene in the situation and to prevail upon the Government of Sri Lanka so that the government abandons its destructive path, of bringing a democratic republic into stone ages. The intervention could prevent the incumbent government in Sri Lanka scotching the foundations of the country’s judiciary.
The AHRC calls upon the Bar Association and the Judicial Services Association of Sri Lanka to respond so that the very foundation of the legal profession and the concept of the rule of law will not be undermined. The AHRC also calls upon the people of Sri Lanka to understand the disastrous implications to their future, as a nation, should the impeachment proceeds as the government has planned, from what Sri Lanka is today, a country based on a constitution rooted in democracy and the rule of law.
The AHRC firmly hopes that sober reasoning and political wisdom will prevail in Sri Lanka and the impending creation of a chaotic and catastrophic environment that will affect the lives of the people in Sri Lanka for their entire future will be prevented.
It is the fundamental duty of everyone to safeguard the rule of law and democracy and not to allow a nation to sink into the abyss of lawlessness and dictatorship.