‘Heisenbergian-Interpretation’ Of The Historical Court Order

By Hema Senanayake -January 9, 2013

Hema Senanayake

On January 01, 2013 the Supreme Court determined that Parliamentary Select Committee appointed to investigate the misbehavior or incapacity ofChief Justice, was exercising judicial powers and such powers cannot be conferred on it by Standing Orders which are not law. It seems for many people this subject is complicated.

Physicist Werner S. Heisenberg won the Noble prize for his uncertainty principle in physics in 1933. His view was that any profound subject can be simplified so as to understand by any average person. Yet simplification does not devalue the profoundness of the subject instead does the opposite.

Usually many people find it difficult to read a Court Order of the Supreme Court and it is a subject left to lawyers and intellectuals. But the Court Order given by the Supreme Court on January 01, 2013 in regard to the question referred to it by Court of Appeal is a historical one and I think must be understood even by general citizenry of the country. In this regard “Heisenbergian-interpretation” or simplification of the Court Order would be appropriate and that is the goal of this essay.

Any citizen of the country has legal and constitutional rights. The government must protect these rights of individuals. Parliament become “supreme” if the parliament upholds those rights of people. It cannot become “supreme” if it violates constitutional rights of any person. Dr. Shirani Bandaranayake is a citizen and also the Chief Justice. Her legal and constitutional rights must be respected and uphold by the parliament.

Now the Supreme Court says that “In a State ruled by a Constitution based on the rule of Law, no court, tribunal or other body (by whatever name it is called) has authority to make a finding or a decision affecting the rights of a person unless such court, tribunal or body has the power conferred on it by law to make such finding or decision” (Page 23 of the Court Order).

The point is very clear. If there is an investigation against you and the findings of that investigation is going to affect your legal/ constitutional rights then the investigation must be done by a body that has powers conferred on it by law. Can anybody disagree with this observation? I do not think so. Therefore, now, our question narrows down as to how such powers conferred on any court, tribunal or “other body.”

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In To A Dark Land We March

By Ravi Perera -January 9, 2013

Ravi Perera

The Voluble Mr. Wimal Weerawansa, a Minister of this government and also a member of the Parliamentary Select Committee which investigated the allegations against the Chief Justice Shirani Bandaranayake, is a man never at a loss for a pithy argument. Only the other day, referring to the then pending hearing in the Court of Appeal of the writ application by the Chief Justice ,Minister Weerawansa compared it to a situation where a victim of a theft was seeking oracular guidance from the mother of a thief ; implication being that she would of course exonerate her guilty son.

Now, those who have an idea of the principles of judicial functions know that this is arrant nonsense. No judge worth his salt would take guidance from the Chief Justice, or any other person for that matter, in his judicial functions. Her role as the Chief Justice is strictly administrative where the other judges are concerned. Originating from more individualistic cultures, the judicial role as defined today is a deeply personal endeavour where the judge attempts to do justice according to the law and evidence before him, as his conscience dictates. Leave alone a judge of the Court of Appeal, the Chief Justice cannot even tell a junior magistrate how he should judge.

That a person could even in a hierarchical arrangement, yet act according to his conscience maybe too difficult a concept for some cultures to understand. It may be that in the society that Wimal Weerawansa is familiar with, a person who is subordinate in any manner, has no sense of autonomy vis-à-vis his superior. If we take that as the general rule, and knowing as we do that the President and then the government (of which he is a somewhat undistinguished Minister) wants the Chief Justice out, in what framework of mind did Minister Wimal Weerawansa participate in the proceedings of the Select Committee? If we were to follow the logic of Minister Weerawansa, when the Parliament sits to debate the impeachment, are they meeting only to finish the deed? Can we consider such a process a legitimate judicial proceeding?

The answer is so obvious that no further elucidation is required on the impeachment proceedings with a predictable and so palpably unfair end.

Then the other day, our Leader of the Opposition just back from Venice, always tasteful in his selection of holiday destinations, enlightened the house (the Parliament) that the judicial powers are vested in the Parliament, but will be exercised through the courts except for matters concerning privileges etc of Parliament. This is plainly stated in Chapter 01 (Clause 4) of the Constitution and is no revelation.

Leafing through the Constitution of the Democratic Socialist Republic of Sri Lanka we come across Clause 13 which may be a matter of relief for our beleaguered Chief Justice. It says that any person charged with an offence shall be entitled to be heard in person or by an attorney –at-law at a fair trial by a competent court. Chapter 15 (Clause 105) of the Constitution which describes the Judiciary reads “Subject to the provisions of the Constitution, the institutions for the administration of justice which protect, vindicate and enforce the rights of the people shall be ….” and goes on to list the courts established in the country from the Supreme Court to various tribunals. The Parliament of course is not listed as a judicial body. As the leader of the Opposition pointed out, the people’s judicial powers are to be exercised by the Courts save for those concerning the privileges etc of the Parliament, which is reserved expressly for the Parliament.

Then, we are left wondering how the Chief Justice or any other judge, maybe inquired into and dealt with (including impeached) by the Parliament. There appears to be a lacuna in the law here.

Without addressing this issue, the government has chosen to wage war on all fronts. It brazenly alleges that the judicial pronouncements are an attempt to topple the government. It organizes “protests” by motley groups against “misdeeds “of judges. There are some protestors even conducting a sit-in protest near the residence of the Chief Justice, and no action has been taken by the Police to remove them. Media organizations under the control of the government are conducting a relentless campaign of slander and abuse against any one perceived to be opposed to the impeachment motion, which includes the lawyers. As is the case now in political matters, intimidation and violence are never too far. The house of the President of the Lawyers association was fired at in the night. Some of the lawyers actively protesting the impeachment motion have been intimidated. It is even reported that judges of the Court of Appeal hearing the writ application of the Chief Justice were threatened.

There will be very few followers for the argument that the Chief Justice is in serious breach of her judicial duties on account of the so called infirmities in reporting certain personal details and the placing of herself in an alleged conflict of interest situation, which prima facie appears far-fetched. Besides, as it is we have not heard her explanation on these allegations. Most people, aware of the style of governance now, will find it ridiculous that such technical issues are held against a person when the order of the day is the violation of all such rules. There is no doubt in anybody’s mind that had the Chief Justice danced according to the tune of the government, there would have been no impeachment.

On the other hand, the government’s position seems to be that as long as they command the majority in the House, they can remove a judge for good reason, bad reason or even for no reason.

Even in the darkest hour there are glimmers of courage and hope. The highest court in this land has held that the proceedings of the Standing Committee are a nullity. Accordingly the Court of Appeal squashed those proceedings. In all civilized countries the power to interpret the law (including the Constitution) rests with the courts. The legislature cannot be both the maker as well as the interpreter of the law.

If the parliament were to decide to ignore the interpretation of the Constitution by its Supreme Court, surely we are now going down an untrodden path into a dark and sinister land. As somebody observed, political legitimacy is a slippery concept, and in a situation where a legislature chooses to ignore its own courts, it can become particularly hazardous.