There have been many articles in the press questioning the legality of the impeachment motion against the CJ Dr. Shirani Bandaranayake. On the other hand there have been many who question the very appointment of Dr. Bandaranayake as the CJ and before that to the Supreme Court. However it is clear that they were silent when she was appointed to these posts by the Presidents Chandrika Kumaratunga and Mahinda Rajapakse respectively. Also those who question the illegality of the impeachment of the present CJ did not raise their objections when the previous impeachments of Messrs. Neville Samarakone and Sarath Silva took place several years ago, and conversely those who were then against now support the impeachment. It is clear that there being no objectivity we are all guided by our subjectivities calling them objective facts. I am not an exception and I admit that we are guided by the way we have been trained by culture meaning the ways we have been brought up at home, in schools, influences of books we read, and of people whom with we associate, and how we have responded to them. I have not come across any work by a Philosopher, Scientist or anybody else where it has been shown that there is an objective world (universe), objectively without appealing to subjectivity. In other words there is no objectivity. If there is no objectivity in western science it is not fair to ask for objectivity in western law or in any system of knowledge for that matter.
Thus if one expects objective decisions from the courts of law one is mistaken. The decisions from court to court can vary. Otherwise there would not be appeals against judgements given by so called lower courts. I myself have the experience of going from the labour tribunals to high court and then finally to Supreme Court, the three courts of law giving three different judgements over my dismissal from the University of Colombo which itself was decided by a council that included two legal luminaries, a Bishop and several eminent people from the public service and high achievers in the private sector, supposedly based on a report submitted after a lengthy hearing at the BMICH at an enormous cost to the university by a panel headed by a reputed public servant. The labour tribunal ordered the University to pay me Rs. 750,000.00, the high court found me guilty and finally the Supreme Court ordered the University to pay me Rs. 500,000.00. I could not understand the rationality of any of these decisions when I had lost more than Rs. 5,000,000.00 as a result of being deprived of my livelihood (I sold Mathematics and Theoretical Physics for a living) by the council of the University of Colombo.
I have no training in legal matters but as said previously it is clear to me (my subjective view) that according to the constitution of the republic the impeachment is legal. Though westerners under western Christian modernity believe and preach in separation of powers (and separation of Church and state, education and religion etc.,) it is not so, and even in the case of sovereignty the three separate powers are united in the People. What is emphasised here is that the legislature, the executive and the judiciary are not on the same footing as described in Article (4) of the constitution. The relevant sections of the Article are reproduced below.
“(4) (a) the legislative power of the People shall be exercised by Parliament, consisting of elected representatives of the People and by the People at a Referendum;
(b) the executive power of the People including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People;
(c) the judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognized, by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, wherein the judicial power of the People may be exercised directly by Parliament according to law;
Though some people believe that the courts tribunals etc., are supreme in matters of law, it is not the case as the judicial power of the People is exercised by Parliament, but of course through courts tribunals etc. If the constitution said that the judicial power of the People shall be exercised by the Courts etc., without reference to the Parliament then it would have been a different matter altogether. As it is, it is the Parliament that exercises the judicial power of the People through the courts etc. This is further confirmed by the reference to the high court in Article 111 (1) which states “There shall be a High Court of Sri Lanka, which shall exercise such jurisdiction and powers as Parliament may by law vest or ordain.”
Then we have the problem of the impeachment itself. The relevant Articles of the constitution are quoted below.
“107. (1) The Chief Justice, the President of the Court of Appeal and every other Judge, of the Supreme Court and Court of Appeal shall be appointed by the President of the Republic by warrant under his hand.
(2) Every such Judge shall hold office during good behaviour, and 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 Members of Parliament (including those not present) has been presented to the President for such removal on the ground of proved misbehaviour or incapacity:
Provided that no resolution for the presentation of such an address shall be entertained by the Speaker or placed on the Order Paper of Parliament, unless notice of such resolution is signed by not less than one-third of the total number of Members of Parliament and sets out full particulars of the alleged misbehaviour or incapacity.
(3) Parliament shall by law or by Standing Orders provide for all matters relating to the presentation of such an address, including the procedure for the passing of a such resolution, the investigation and proof of the alleged misbehaviour or incapacity and the right of such Judge to appear and to be heard in person or by representative.”
It is clear that the President can remove the CJ by an order after an address of Parliament supported by a majority has been presented to the President for such removal on the ground of proved misbehaviour or incapacity. Article 107(3) states how Parliament could provide for all matters relating the presentation of such address including the procedure for the passing of such resolution, investigation etc. It is understood that the relevant standing orders were made when the impeachment of Mr. Neville Samarakone was taken up. Thus there is nothing illegal regarding the impeachment whether we agree with it or not.
My subjective view is that the judgements on the Divineguma Bill and/or the Z score problem are not the causes(s) of the impeachment though I believe that the Supreme Court erred in its judgement on the Z score problem. One cannot find fault with the judgement on the Divineguama Bill, as the thirteenth amendment would compel any other bench in the future to give a similar judgement demonstrating that after the thirteenth amendment we are no longer a Unitary state. It is the thirteenth amendment and the Provincial Councils that have to go and one hopes that government would take steps to repeal the thirteenth amendment without further delay.
Finally there are those who complain that the majority of the Parliamentary Select Committee are from the government and hence it is a foregone conclusion as to the determination by the Committee. There are some who go to the extent of blaming again the “majority supremacy” for the composition of the Select Committee. I presume that composition reflects the present distribution of the Parliamentarians among various political parties, and I am afraid until the next Parliament is selected or “majority supremacy” is replaced by “minority supremacy” the Select Committees would constitute of Parliamentarians approximately in the same ratio.
Copyright Prof. Nalin De Silva