The Government’s fight against the Judiciary… A necessary evil on an evil journey

“There is no week nor day nor hour when tyranny may not enter upon this country, if the people lose their roughness and spirit of defiance.”

– Walt Whitman

Fascinating story

Impeachment motions in Sri Lanka have a fascinating history. It is a story that can be told by

grandparents to their grandchildren, captivating the ever-elusive attention of the youngsters, with nuisances more charming than the real facts of the tale. People in Sri Lanka had not heard about a concept of ‘impeachment’ prior to 1978. With the introduction of the 1978 Constitution wherein the Executive Presidency occupied the center of gravity, the removal of an individual from such an exalted and powerful position was spelt out in the relevant clauses of the 1978 Constitution. Allow me to take you back to the year 1984 when an attempt was made at the impeachment of the then Chief Justice of Sri Lanka, Justice and Queens’s Council Neville Samarakoon. Elmore Perera, eminent lawyer and the former President of the Organization of Professionals Associations has penned one of the most readable pieces in this regard which is finding wide circulation through emails and websites.

Elmore Perera

Elmore describes these episodes with clarity, lucidity and above all, with a sure sense of balance: “The President expeditiously moved to impeach the Chief Justice with the aid of his steamroller 5/6th majority in Parliament. Article 107 of the 1978 Constitution, stipulates that the Chief Justice shall not be removed except by an order of the President made after an address of Parliament, supported by a majority of the total number of MPs, has been presented to the President for such removal on the ground of proved misbehavior or incapacity, provided that the notice of such resolution for the presentation of such address was signed by not less than one-third of the total number of MPs and sets out full particulars of the alleged misbehavior or incapacity. Standing Order 78A relating to the presentation of such an address, sets out the procedure for the passing of such resolution, the investigation and proof of the alleged misbehavior or incapacity and the right of the Chief Justice to appear and to be heard in person or by representative.’

‘The Parliament appointed a select committee of 9 members (viz.)

R. Premadasa, Ranil Wickramasinghe, Nissanka Wijeratne, R. Pathamanathan, M.L.M. Aboosally, Wasantha Udayaratne, Dr. S.Y.S.B. Herath, Lakshman Jayakody and Anil Moonesinghe to inquire into and report on a speech alleged to have been made by the Chief Justice at an Award Ceremony of a Tutory on 14th March, 1984. A majority of the members was of the view that all of the statements reported, may not prove disrepute but they were not befitting an incumbent Chief Justice. ‘

Resolution

‘Notwithstanding this finding, a resolution signed by 57 MPs was placed on the Order Paper of September 5, 1984. A committee of 9 MPP viz. Lalith Athulathmudali, Dr. Ranjit Atapattu, Festus Perera, C. Rajadurai, M.A. Abdul Majeed, Paul Perera, Anura Bandaranaike, Dinesh Gunawardene and Sarath Muttettuwegama, was appointed to inquire and report. A majority of the members stated that the standard of proof required is very high. In all the circumstances of this case, they felt that they could not come to the conclusion that the Chief Justice was guilty of proved misbehavior.’

Neville Samarakoon

No further action was taken in this connection until the Chief Justice reached the mandatory age of retirement (65 years) on 21.10.1984 and retired.”

Chief Justice Neville Samarakoon was an eminent man of the Silk. After distinguishing himself in the private bar and when summoned to be the Chief Justice, Justice Samarakoon had only a very few equals, not only in the legal profession, but also in other fields where intellectual prowess and personal integrity were the common yardstick of measure. To illustrate Chief Justice Samarakoon’s sense of fair-play, allow me to tell you a story which was related to me by one of the associates of a leading politician of the day. When the Justices of the then Supreme Court took a tour around the various work sites of Mahaweli Development Scheme, this ‘associate’ not only happened to be the coordinator who arranged the logistics and itinerary for the tour, but took the time to take part in the tour himself. Once the tour was complete and they arrived back in Colombo, the Chief Justice had been informed of the invitees for the second round of these public relation-oriented circuits. They were to be the Justices of the Appeal Court.

Mahaweli tour

The following day when this ‘associate’ was in office, he was visited by another technical person who had participated in the Supreme Court Justices’ tour of the Mahaweli Scheme. He told this ‘associate’ that Chief Justice Samarakoon had rung him up and asked to convey to the ‘associate’ that he, the ‘associate, should not accompany the Justices of the Appeal Court on the Mahaweli Tour’, as a case in which the ‘associate’ was an accused was coming up in the Court of Appeal and it would not be proper for him to be accompanying those who were charged with dispensing justice in that case. The ‘associate’ certainly did not accompany the Justices and a further second message was sent by Chief Justice Samarakoon to the ‘associate’, thanking him for not taking part in the trip with the Judges of the Appeal Court. Justice was not only done; it seemed to have been done as well.

Law must be blind

Yet when judging matters of the law, one must be blindfolded. Personal interests, biases and likes and dislikes should have no place in the enterprise of justice and its dispensation. The current looming crisis must be viewed and measured in that context and in that context alone. One might be tempted to measure and compare the eminence of the members of the respective select committees appointed in the eighties and now. Parliament being pronounced in our Constitution as the supreme body in which lies the sovereignty of the people, those who have been nominated by the Government in the current case might be scrutinized and their eligibility and qualifications might well be questioned by many a legal pundit. But that is the prerogative of the Government party; if they could not find a different team of men of eminence in Parliament, then it’s totally a different story.

Premadasa impeachment

Then came the Impeachment motion against the then President Premadasa. This was engineered by Gamini Dissanayake, Lalith Athulathmudali and G M Premachandra who were great stalwarts of the United National Party, the ruling Party at the time. The story behind that story is common knowledge now and yet, it was the only occasion on which the mass support for such a motion was openly solicited by the architects of the Impeachment Motion and they did receive massive support so solicited. That motion was taken directly to the people and the UNP is still suffering from its consequences. But the enormous campaign that was launched by the politicians at the time to educate the people on the nuances of an impeachment endeavor bore fruit in the rise of Chandrika Bandaranaike and the subsequent demise of the UNP.

Aborted attempt

The aborted Impeachment Motion attempted against the later Chief Justice Sarath N Silva had a totally different texture. When the original motion was tabled by the then Opposition, President Chandrika Bandaranaike chose to side with the Chief Justice Silva and instead of throwing him under the bus, she took a very unorthodox measure by proroguing Parliament, thereby killing the motion altogether. However, when the Parliamentary Elections were held and the UNP came back to power with a majority in Parliament, the newly-appointed Prime Minister chose to disregard the Motion of Impeachment for his own reasons.

Gamini and Lalith

Both motions of Impeachment filed against the two Chief Justices went almost unnoticed by the general public, whereas the Impeachment Motion against President Premadasa enjoyed wide acceptance among the public and it generated a lot of consequential events and measures that affected the course of our recent history. There is a definite reason for it. The Impeachment Motion filed against President Premadasa had unwavering political leadership behind it. The campaign was led by two giants, Gamini Dissanayake and Lalith Athulathmudali. Their commitment to the cause of the Impeachment was unquestioned and beyond dispute. Both of them were political Gullivers, compared to the Lilliputians of today. Had Premadasa not died and both Gamini and Lalith lived after the failed impeachment motion, the Democratic United National Front formed by the Gamini/Lalith/Premachandra trio would have been a very formidable third force in the country. When one considers the electoral success they had (securing 18%-23% of the national poll) at the Provincial Council Elections that followed their departure from the UNP, one could easily deduce that an alternative political force was in the offing.

Third time lucky?

This is the third time an Impeachment Motion is being entertained against the sitting Chief Justice. It shows how scared and weary are the leaders of any regime, of the powers inherent in the hands of a Chief Justice who would not play according to the tune of the powers that be. It was all hunky-dory when the current Chief Justice was appointed and the subsequent array of judgments was delivered by the Supreme Court Bench. The cracking of the shell began to appear soon after the judgment of the now infamous “White Flag” was delivered. And when General Sarath Fonseka’s Human Rights came up for judgment by the Supreme Court, it was widely rumored that the Highest Court of the land was waiting to give bail to General Fonseka. In order to preempt the issue, the Executive issued a pardon to General Fonseka and thereby made the application before the Supreme Court a non-issue. If that was the initial cracking, the burst occurred when the Divi Neguma Bill was presented in Parliament. Subjugation of the Judiciary has become a necessary tool on the journey.

Assault on judiciary

What the people must realize is that an assault on the Judiciary of the land cannot be just ignored, no matter who the officers in question are. If any softness or weakness is shown by the people and by the Opposition and those who revere the fundamental rights that are enshrined in our Constitution, the sacred source of our law, the devastating consequence of such inactivity on the part of the people would lead eventually to an abyss of slavery and serfdom. Almost all dictatorial rulers in history had tried this time-tested method of governing by subjugation of the judiciary. Parallels both in recent and ancient history abound in numbers, yet man has succumbed time and again to the vagaries of tyranny and authority.

True men and women

Every now and then, there have emerged true ‘Men and Women’, not only at higher echelons but who dwelled at the bottom of the ladder, who most fiercely said: “here I stand”. It was Rosa Park, on December 1, 1955, in Montgomery, in the then segregated Alabama, who refused to obey bus driver James F. Blake’s order that she give up her seat in the colored section to a white passenger, after the white section of the bus had been filled up. She didn’t give in and unwittingly unleashed a basically non-violent revolution that completely changed the ‘color’ of the present-day United States.. And she was no politician or a leader of the community. She was just an ordinary Secretary commuting to work. But she had what most men of the day lacked: guts.

 

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