Nadesan and the Impeachment


Three weeks ago, when I pointed out that a coconut thief or a pick-pocket had more rights than the Chief Justice and other Judges of the Supreme Court, many laughed at me. Today, many others, who are legal luminaries, are echoing the same sentiments in petitions submitted to the Court of Appeal, by six law abiding citizens, challenging the procedure, adopted by the Parliamentary Select Committee, to conduct the inquiry, to impeach the Chief Justice. One of the most respected Judges of the Supreme Court, Justice Gamini Amaratunga, as reported in the media, is said to have commented that all persons have equal protection under the law, except the Judges of the Apex Court. Therefore, as a layman, I stand vindicated on what I said.

However, what baffles me is that no one has tried to argue another point, which I raised, on how 117 parliamentarians could have signed a petition containing the allegations against the Chief Justice. The question was whether they had signed the petition blindly or because they believed that the complaints were factual. It is now well known that the impeachment motion, which has been submitted to the Speaker, need not be substantiated with evidence proving the allegations and subjecting the witnesses to cross examinations before a Select Committee, as, according to the Standing Orders, a prima-facie case has been established of the truth of their allegations. Though the Chief Justice, through her lawyers, countered those allegations, according to the procedure adopted, the Chief Justice or any other Judge of the Apex Court, will have to refute the allegations of the accusers. Though anyone could bring allegations against the Chief Justice without any material or foundation and if the number of Parliamentarians signs it, it is considered prima facie evidence against the Chief Justice.

Furthermore, Impeachment and removal the Chief Justice from office is a political stand taken by the Government. Like the Members of Parliament, who sometimes vote to deprive themselves of their own rights and the voters’ basic rights, would have to vote with the Government if they are to remain with the Government. Therefore, the Members of Parliament will have to vote, though they are the accusers who seek to impeach the Chief Justice. As a layman, my questions is how can the accuser become the judge and the jury.

Senator and Queen’s Counsel Somasunderam Nadesan, during, the impeachment of Chief Justice Neville Samarakoon, submitted, "The Select Committee of Parliament has, under Standing Order 78(a), to investigate and report to the House if the Judge, against whom allegations of misbehavior or incapacity have been made, is guilty of the offence or suffers from such incapacity. In the case of an allegation of misbehavior, it is only if the Judge is found guilty that the petitioners can proceed to present an address to the President to remove the Judge. When such an address is presented, the President has no option but to remove the Judge. The passing of the resolution by the House is a legislative act which rose from the legislative power in the people, rather than a judicial act. The removal of the President is an Executive act, but an investigation, as to whether the alleged offences of misbehavior have been proved, is a judicial act flowing from the judicial power of the people. Such investigations and finding of guilt, in certain cases, may involve complicated questions of fact. The determination of the question as to whether the facts found constitute misbehavior under provisions of Article 107(2) may itself prove difficult to such investigations and findings by a Select Committee, necessarily an essential part in a constitutional, statutory scheme ‘process, which may terminate an action, adverse or prejudicial to the rights and interests of the individual’. Therefore, such investigation and determination is essentially the exercise of judicial power. The Standing Order 78(a) could have proved that with one third of the Members of Parliament giving notice of a resolution for the presentation of an address to the President, for the removal of a Judge, the Speaker shall ask the Supreme Court to have the matter inquired into by three to five Judges of the Supreme Court and to report to Parliament. If the Judge against whom the allegation is made is a Judge of the Supreme Court, naturally he will not participate in anyway in the matter.

"It will be submitted that this will mean that the exercise of judicial power by the Select Committee will be inconsistent with the provisions of Article 4© of the Constitution under which judicial power cannot be exercised by Parliament directly, except in matters of its own privileges. Article 4© does not say, ‘except in the matters pertaining to privileges or the exercise of power under Section 107 of the Constitution, as the Bill would offend Article 4© and it would also infringe Article 3 of the Constitution, which says that the sovereignty of the people is inalienable’. Accordingly, such a Bill to become law, would have to be passed not only by a two third majority but also has to be approved by a Referendum.

Can Parliament overcome these difficulties by making Standing Orders giving a Select Committee judicial power? Under Article 74 of the Constitution, any Standing Order of Parliament is subjected to the Constitution. Standing Order 78(a) violates Article 4(c) of the Constitution, in that it gives judicial power to a Committee of Parliament. Accordingly, Article 78(a) is ultra vires of the Constitution and a Select Committee appointed under the Standing Order cannot proceed with an inquiry."

At an Emergency Executive Committee meeting of the Kandy Bar Association (KBA) on November 23, President’s Counsel Dr. Wijaya Wickremaratne, Harindra Dunuwila and Upali Bogahapitiya had taken the lead to demonstrate to the Main Association the concerns of the Members of the Bar regarding the impeachment. The Kandy Bar unanimously expressed its grave concern at the manner in which the parent body was reacting to the impeachment. They condemned the impeachment motion and supported the Chief Justice equivocally.

It was their contention that the BASL should take a strong, firm and unambiguous stand in support of the Chief Justice and against the impeachment. They pointed out that the institution should be protected and not individuals.

The BASL has at last woken up from its slumber following digs from various quarters and at last realized that the Judiciary is endangered. It has therefore petitioned the Supreme Court in a bid to have the PSC sittings on the Impeachment motion against the CJ suspended till its petition is finally determined by Court.

At long last after the killing of Attorney-at-Law Liyanaarachchi, has the Bench and the Bar come together to defend and protect the Judiciary and thereby the rights of the citizens of the country.

At the meeting of the entire Bar Association, the lawyers demonstrated their stand and their position on the impeachment motion. Some supporters of the government came to the meeting to disrupt it so as to scuttle the motion against the impeachment. But those of who supported the Judiciary and its independence outnumbered those who wanted the judiciary be dependent on the Executive by about three to one and had their way and the resolution was adopted unanimously. Those who shouted most were those sycophants who were expected to be named President’s Counsel in the next list. Those who became President’s Counsel were very silent and seemed to be sitting on the fence much to the dismay of the high command. If the high command expected them to come out and support the impeachment it was sadly mistaken. Having supported the impeachment motion, even drafting the same and having obtained ‘silks’ they turned deaf and dumb when others spoke about the tragic situation the country was facing with the rule of law teetering on the brink of collapse and the threat to the independence of the judiciary.

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