Harim Peiris

Political and Reconciliation perspectives from Sri Lanka

  • November 2012
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CBK Challenges SLFP on CJ Impeachment

Posted by harimpeiris on November 29, 2012

Former President Chandrika Bandaranaike Kumaratunga (CBK) has since leaving office in 2005, at the conclusion of two consecutive terms, generally stayed above the fray of the Sri Lankan political divide. She has instead focused her energies and attention more on the world stage as an elder statesperson, directing her energies towards issues such as education of the girl child in South Asia, eradication of extreme poverty, the role of women in peace building and post conflict reconciliation. The Clinton Global Initiative, the Club de Madrid and her own Foundation have been the institutional framework from which this work is being done.

Former President Kumaratunga has provided her successor in office, President Rajapakse the freedom and latitude to govern as he sees fit, without much criticism on her part, though his Administration sharply deviated from the path and policies that they travelled together and which brought the SLFP back into office in 1994, under CBK’s leadership, after seventeen long years in the political wilderness from 1977-1994.The exception to this silence have been some very pertinent advice on democratic, human rights and pluralism issues over the period of the last seven years, the ignoring of which has been to the peril of the Administration internationally such as at the UNHRC and also domestically such as in the Eastern Province, where the UPFA recently lost in two out of the three districts in the recent provincial council election.

However this past week, the former president made her most direct intervention in the local political dynamics when in a detailed and analytical statement she came out strongly against the impeachment of the Chief Justice and challenged the ruling Sri Lanka Freedom Party (SLFP), the party founded by her parents and of which she remains the honorary patron, to not consider this issue on political or party lines but view the issue in the light of its merits, the impact on democratic and fundamental freedoms in the context of the overall national interest.

Among the many points that President CBK makes is that democracy demands that especially governments adhere to and submit to the decisions of the Courts that go against it, to keep governance in accordance with law and subject to the rule of law. Implicitly CBK’s statement articulates that it is the people that are sovereign and not the government or even the State and it is the law(s) of the sovereign people that is supreme and not the legislature. The facile and intellectually hollow arguments put forward by sundry government spokesman that Parliament is supreme ignores this reality that the rule of law is supreme and the impeachment of the Chief Justice for giving judgments that go against the executive government’s wishes and desires is not and can never be a basis for impeachment.

This brings us to the charges in the impeachment, which has come into the public domain. That these issues are public is desirable since in the case of R vs. Sussex Justices McCarthy, 1924 1KB-256, 1923 All E R 233, laid down the maxim that “Not only must Justice be done; it must also be seen to be done. Accordingly secret trials, especially such controversial and contested ones cannot be done, ensconced in secret. Almost as soon as the UPFA Government’s charges were published, the internal recriminations began as to the extremely poor quality and hollow nature of the charges. The have now been publicly refuted in the Chief Justice’s defense. Basically the legal defense for the Honorable Chief Justice would argue that the impeachment actually contains no charges, which constitute crimes or misdemeanors in law. That the charges even if proved do not constitute proved misbehaviour within the meaning of Article 107(2) of the Constitution and therefore cannot result in the impeachment of the CJ.

Further President CBK, the Bar Association and many eminent lawyers contend what has now also been filed in the Supreme Court, that the relevant Standing orders of parliament have no validity in law. The laws passed by Parliament have to be in conformity with the constitution. The same is true of the standing orders through which Parliament governs its own actions. Under the current standing orders, the same body making the charges, namely the government benches of Parliament, seek to inquire and decide on the impeachment, is parliament acting as judge, jury and prosecutor, while also ultra vires the Constitution is also Parliament seeking to directly exercise judicial power, which only lawfully constituted Courts and Tribunals may do. President Kumaratunga makes the point that in the draft constitution of August 2000 a much more independent and impartial judicial process with procedural safeguards and judicial review was proposed and though not becoming law, is certainly a model which Parliament can adopt to modify and amend its standing orders.

The internal opposition to the impeachment is growing within UPFA ranks. Former President Kumaratunga as SLFP Patron has now clearly argued and challenged the ruling party to reconsider this mad rush to destroy an independent judiciary which is a crucial and foundational democratic institution. The Central Committees of both the Lanka Sama Samaja Party (LSSP) and the Sri Lanka Communist Party (CP) have both taken a decision preventing their comrade ministers, namely Ministers Tissa Vitharana, DEW Gunasekera and Chandrasiri Gadjadeera from signing or supporting the impeachment, demonstrating the traditional left parties are now prepared to stand up the Rajapakse presidency on matters of high principle, crucial in the national interest. SLMC leader and Justice Minister Rauff Hakeem is in the most uncomfortable position as Justice Minister, the government’s cowboy and cavalier approach to attacking judicial independence is not to the liking of Muslim Community leaders.

Finally religious leaders, the most venerable Mahanayake Theros of the four main Nikaya’s, the Catholic Bishops Conference, the National Christian Council and other religious leaders have all been fairly unanimous that the impeachment of the Chief Justice is a serious mistake. President Kumratunga’s concluding challenge to her party and the government is that even at this late stage, it should reconsider its impeachment decision and back off from its full frontal assault on the independence of the judiciary and the fundamental democratic rights of the sovereign people of Sri Lanka.

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