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Sunday, December 2, 2012
Two wrongs don’t make a right
By
Sanjaya Nallaperuma-Sunday,
02. December 2012
UNP Colombo district MP Wijeyadasa Rajapakshe said any
power struggle between the judiciary and the legislator would greatly and
seriously imperil democracy in the country.Excerpts:
The
present tussle between the judiciary and the executive is raging on. What is
your take on it?
This tussle has now spread to the legislature as well and it is the judiciary and the legislature that are at loggerheads right now. In fact these three institutions are now in a deadlock. It is tough to gauge how long these disputes will last, and what is clear to me is that none of these three institutions are ready to be dictated to by the other. But it is also clear that both the executive and the legislature are ganging up against the judiciary.
This tussle has now spread to the legislature as well and it is the judiciary and the legislature that are at loggerheads right now. In fact these three institutions are now in a deadlock. It is tough to gauge how long these disputes will last, and what is clear to me is that none of these three institutions are ready to be dictated to by the other. But it is also clear that both the executive and the legislature are ganging up against the judiciary.
How
would any possible power struggle between these three institutions impact on
democracy in the country?
I feel that any power struggle between these three institutions would greatly and seriously imperil democracy in the country. This could only be the tip of the iceberg. There had been similar instances previously as well. In the 1960s there were similar circumstances here and thanks to socialist speeches the 1971 uprising took place. That was the same thing that took place during the 1988-1989 period. Even former president J.R. Jayewardene filed an impeachment motion against the then chief justice Neville Samarakoon. The end result would be the law of the jungle ruling the roost.
I feel that any power struggle between these three institutions would greatly and seriously imperil democracy in the country. This could only be the tip of the iceberg. There had been similar instances previously as well. In the 1960s there were similar circumstances here and thanks to socialist speeches the 1971 uprising took place. That was the same thing that took place during the 1988-1989 period. Even former president J.R. Jayewardene filed an impeachment motion against the then chief justice Neville Samarakoon. The end result would be the law of the jungle ruling the roost.
The
charges levelled against the chief justice have been released to the media as
well. Not only that, the chief justice even gave her explanation to such charges
in the media through her own attorneys. Do you see any justification in the
charges levelled against the chief justice?
It is not suitable to express my views on such issue when they have already formed a PSC to probe those charges. But there seems to be a great political upheaval like never before in the country over these issues. There are those who are expressing views, both for and against the impeachment motion. They are also using the media in this regard. Some are going on protest marches as well. Whatever is said and done the people have lost confidence in the executive and Parliament. The people had reposed their confidence in the judiciary. But if the judiciary also falls to the same level of the executive and Parliament, it might mean the end of democracy in Sri Lanka.
It is not suitable to express my views on such issue when they have already formed a PSC to probe those charges. But there seems to be a great political upheaval like never before in the country over these issues. There are those who are expressing views, both for and against the impeachment motion. They are also using the media in this regard. Some are going on protest marches as well. Whatever is said and done the people have lost confidence in the executive and Parliament. The people had reposed their confidence in the judiciary. But if the judiciary also falls to the same level of the executive and Parliament, it might mean the end of democracy in Sri Lanka.
What
will be the immediate impact on the country through this upheaval?
Parliament has decided to probe the charges against the chief justice without an accepted mechanism. This is a process that has not been tried and tested. Today there are many justified legal systems that are taking place in most Commonwealth nations. And in a country like Malaysia, the charges against the chief justice are probed by three chief justices of Commonwealth countries. There is also a special system adopted in India. As per the Constitution that was amended in 2000, this particular mechanism has been accepted. But there appears to be no justified form of probing the charges levelled against the chief justice. There are no chief justices invited from any Commonwealth countries to sit in judgment on her case. And any verdict or ruling given by such a committee will not be accepted as justice by the people. There is no use in adopting such procedures for only judges and lawyers. The people too should have confidence in this system.
Parliament has decided to probe the charges against the chief justice without an accepted mechanism. This is a process that has not been tried and tested. Today there are many justified legal systems that are taking place in most Commonwealth nations. And in a country like Malaysia, the charges against the chief justice are probed by three chief justices of Commonwealth countries. There is also a special system adopted in India. As per the Constitution that was amended in 2000, this particular mechanism has been accepted. But there appears to be no justified form of probing the charges levelled against the chief justice. There are no chief justices invited from any Commonwealth countries to sit in judgment on her case. And any verdict or ruling given by such a committee will not be accepted as justice by the people. There is no use in adopting such procedures for only judges and lawyers. The people too should have confidence in this system.
These
charges are probed by a PSC that consists of MPs from both sides of the floor.
Do they have the right to probe such charges against a chief
justice?
As per the Standing Order 78 such an authority has been given to them. But as per the 4th clause of the Constitution the legislature has no such power. This is where the crisis erupts. It is the legislature that has the power to give renditions to the Constitution. Right now the Supreme Court has been petitioned concerning the rendition of the Constitution and the Supreme Court will give its ruling after a two-month period. If they were to give a verdict on the impeachment motion before the Supreme Court gives its verdict it could lead to a crisis situation on a major scale.
As per the Standing Order 78 such an authority has been given to them. But as per the 4th clause of the Constitution the legislature has no such power. This is where the crisis erupts. It is the legislature that has the power to give renditions to the Constitution. Right now the Supreme Court has been petitioned concerning the rendition of the Constitution and the Supreme Court will give its ruling after a two-month period. If they were to give a verdict on the impeachment motion before the Supreme Court gives its verdict it could lead to a crisis situation on a major scale.
But
within the Constitution there is provision made for the ouster of a chief
justice.
It has been so stated as per the Standing Orders. But Standing Orders cannot be construed as law. The Standing Orders only concern the legislature. There are such orders in the Supreme Court as well and they are maintained to ensure internal activities of the institutions concerned.
It has been so stated as per the Standing Orders. But Standing Orders cannot be construed as law. The Standing Orders only concern the legislature. There are such orders in the Supreme Court as well and they are maintained to ensure internal activities of the institutions concerned.
But
why is that through such orders the legislature cannot probe any charges against
the chief justice?
As I said, though it has been formulated by Parliament it does not become law. It is true that it is Parliament that formulates laws and acts. But Standing Orders are meant to ensure that internal activities of the institution concerned goes ahead without a hitch.
As I said, though it has been formulated by Parliament it does not become law. It is true that it is Parliament that formulates laws and acts. But Standing Orders are meant to ensure that internal activities of the institution concerned goes ahead without a hitch.
But
former chief justice Neville Samarakoon too was subjected to this same
mechanism. If it was good for him how is that it is not good for Shirani
Bandaranayake?
The Courts will only give its verdict if someone files a case and not otherwise. Verdicts given in the past could be changed to suit the present day. Therefore two ‘wrongs’ cannot be compared as a ‘right.’ Just because a wrong has been done in the past and if it were to be repeated, and if one were to say that it is the right thing, that is not the way it has to be done. Wrongs done in the past have to be accepted as wrongs and then rectified in the present day.
The Courts will only give its verdict if someone files a case and not otherwise. Verdicts given in the past could be changed to suit the present day. Therefore two ‘wrongs’ cannot be compared as a ‘right.’ Just because a wrong has been done in the past and if it were to be repeated, and if one were to say that it is the right thing, that is not the way it has to be done. Wrongs done in the past have to be accepted as wrongs and then rectified in the present day.
The
charges against the chief justice have been brought by Parliament and it is that
very same Parliament that is probing these charges. How ethical is this
process?
It is accepted in law that your own case should not be judged by you. Now through this process that mechanism has broken down irretrievably. Parliament is now judging its own case. Where is the democracy in such a process? We have already accepted about justified rulings being given through Courts. Especially, charges against the chief justice have to be probed by those with a sound knowledge of the law and I do not think such legal brains are present in the legislature to undertake such a task.
It is accepted in law that your own case should not be judged by you. Now through this process that mechanism has broken down irretrievably. Parliament is now judging its own case. Where is the democracy in such a process? We have already accepted about justified rulings being given through Courts. Especially, charges against the chief justice have to be probed by those with a sound knowledge of the law and I do not think such legal brains are present in the legislature to undertake such a task.
Are
you opposing the composition of the PSC?
I feel that those chosen to sit in the PSC are not suitable for that task. There are those who are not even lawyers who are sitting in the PSC. Lawyers have some knowledge of the law but what can we expect from those who are not lawyers?
I feel that those chosen to sit in the PSC are not suitable for that task. There are those who are not even lawyers who are sitting in the PSC. Lawyers have some knowledge of the law but what can we expect from those who are not lawyers?
So
far some have petitioned the Supreme Court requesting it to urge the legislature
not to probe the charges against the chief justice till a verdict is given in
the Supreme Court. But the legislature has decided to go ahead with its probe.
What is your take on it?
What this leads to is clear friction between the judiciary and the legislature. Democracy in a country will survive as long as the three institutions understand their jurisdiction and try to co-exist. And when that breaks down, democracy will cease to exist.
What this leads to is clear friction between the judiciary and the legislature. Democracy in a country will survive as long as the three institutions understand their jurisdiction and try to co-exist. And when that breaks down, democracy will cease to exist.
The
summons issued to the speaker and the PSC members by the Supreme Court to give
their version on the impeachment motion against the chief justice have been
rejected by the speaker. What will be the final outcome?
This is only the tip of the iceberg and it is only the start of the law of the jungle becoming established here. Both the executive and the legislature, not being prepared to accept the orders given by the judiciary, means that there is no rule of law in this country. There is only an arbitrary law there.
This is only the tip of the iceberg and it is only the start of the law of the jungle becoming established here. Both the executive and the legislature, not being prepared to accept the orders given by the judiciary, means that there is no rule of law in this country. There is only an arbitrary law there.
But
doesn’t the ruling given by the speaker also ensures its independence, and isn’t
that a good thing?
There is already independence there. To prepare laws, it is alright. But it is the judiciary that can give rulings on the law; not the legislature. But by this ruling it shows that Parliament does not agree with the ruling given on the law by the judiciary.
There is already independence there. To prepare laws, it is alright. But it is the judiciary that can give rulings on the law; not the legislature. But by this ruling it shows that Parliament does not agree with the ruling given on the law by the judiciary.
This
same ruling was given by former speaker Anura Bandaranaike. Do you mean to say
that successive speakers should not follow suit?
He had given this ruling under different circumstances. He only accepted that the chief justice could be impeached.
He had given this ruling under different circumstances. He only accepted that the chief justice could be impeached.
Is
the people’s independence ensured by the present Parliament?
I don’t think so.
I don’t think so.
Don’t
you think the time is nigh for the Constitution to be changed?
From 1994 onwards all governments that came to power told the country that they will change the Constitution once they ascend to power. They even promised to do away with the executive presidency.
From 1994 onwards all governments that came to power told the country that they will change the Constitution once they ascend to power. They even promised to do away with the executive presidency.
Do
you think that those serving in the PSC are acting contrary to the accepted laws
and norms in the legal field?
They are clearly acting contrary to the law and they are flouting all the regulations. Some of those sitting in the PSC have been even brought before the chief justice for certain cases and then a question rises on their impartiality.
They are clearly acting contrary to the law and they are flouting all the regulations. Some of those sitting in the PSC have been even brought before the chief justice for certain cases and then a question rises on their impartiality.
What
action could be taken against PSC members if they violate laws and
regulations?
That lies solely with the speaker. He has to control it. The chief justice’s issue is now in the national and international domain, and it would have been better if the government had included more members to the PSC from the opposition.
That lies solely with the speaker. He has to control it. The chief justice’s issue is now in the national and international domain, and it would have been better if the government had included more members to the PSC from the opposition.
