The Hulftsdorp spring is about to end as this article is written but the Brahmin class is not going to learn a lesson. The Brahmins backed by the westerners and the Indians having attempted various springs after they tried to use Sarath Fonseka to oust Mahinda Rajapakse at the Presidential elections. There was an attempt to “impeach” Mahinda Rajapakse and his sibling Gotabhaya Rajapakse at a so called international tribunal using Sarath Fonseka as a witness of the “state”, or of the west. The Rajapakse government is in effect following the western economic, political and legal models but the west has an axe to grind as the Rajapakse government was able to defeat Tamil terrorism defying western and of course Indian pressure. There were various springs such as Katunayake, Fisheries, Academic springs that attempted to bring the masses to the streets and topple the government if possible as it is a necessary condition that Mahinda Rajapakse should be ousted before he is tried at a so called international tribunal. I have no truck with this government that essentially follows western models but I would oppose any moves by the west or India to oust Mahinda Rajapakse and “impeach” him. In that background I have no objection to the eighteenth amendment that gives a person the opportunity to be elected as the President for more than two terms. If the voters prefer Mahinda Rajapakse let them elect him as the President for a third term and treat with contempt the western attempts to “impeach” the President. The Brahmins are with the westerners in the final analysis as this particular class whether they are liberals, Marxists or any other “westernists” (those who follow western isms) as they constitute a sect created by the west. I am not a conspiracy theorist and the westerners work with the idea to punish the two Rajapakses who have national tendencies.
As we have said many times the NGOs not only in this country but as well as in other countries have been created by the western governments in order to propagate the ideologies of the west. They will talk of good governance, democracy, independence of judiciary pluralism etc., as if they can be found anywhere in the world. I just cannot understand the pluralism these people talk of when they consider the western knowledge including of course western science, as the only valid, true or scientific system of knowledge. They consider our systems of knowledge as myths according to their “benchmarks” and contradict pluralism. If there is to be pluralism it should be first in the field of knowledge and schools and universities that propagate western myths in the name of science should be given the freedom to teach other systems of knowledge. We have said from the very beginning that the west will go all out to oust the Rajapakse government and we have to be prepared for economic sanctions and even a military attack. The next government even if it is formed by the UNP in the very unlikely event would be far worse than this government with respect to so called good governance etc., and I would prefer Mahinda Rajapakse who defeated Tamil terrorism in the absence of a truly nationalistic leader who would follow nationalistic economic political and cultural models to safeguard the sovereignty of the country. Thus Mahinda Rajapakse has to be protected from the Brahmins who are supported by the westerners and no doubt that Dr. Shirani Bandaranayake gets the strength to defy the government from the Brahmins including the Liberals, Marxists (though insignificant) , the NGOs, etc. Within the country they have not so much power but as they are backed by the west and India Dr. Bandaranayake has been blown out of proportion with the help of media. It is nothing but a media show and those so called valiant fighters for human rights, independence of judiciary who were not seen during the previous impeaches have a field day. In any event politics have been reduced to media shows without participation of the masses, and it is difficult to claim that the present media is a so called fourth state.
It is not possible to pinpoint the date on which Dr. Bandaranayake began to have differences with the government but it appears that a process similar to that had taken place with respect Sarath Fonseka (SF) has begun somewhere last year. It is apparent that Dr. Bandranayake who was appointed to the Supreme Court by Chandrika Bandaranaike crossed over to the UPFA led by Mahinda Rajapakse though not officially. However, she was back in her familiar grounds soon after she became the Chief Justice, due to some influence. She tried to make use of her position as the Chairperson of the Judicial Service Commission to challenge the government after reverting back to her grounds. It is unlikely that her past academic work related to devolution of power was in any way connected with the impeachment as the government in appointing her as the Chief Justice was not concerned with her personal views on devolution, in spite of some politicians in the government giving that as a reason for the impeachment. The judgment on the Divineguma Bill opened the eyes of those who opposed the thirteenth amendment and I remember soon after the judgment agitating for abolishing the thirteenth amendment. In fact I reminded the opinion given by late Mr. Raja Wanasundara to the effect that the JR Jayawardhene government had wrongly interpreted the judgment of one of the nine judges. The thirteenth amendment is illegal in the sense that it has not been properly become law. It cannot be considered as an Act of Parliament and one would have to await the judgment of the Supreme Court under a new Chief Justice. The judgment on the Z score only complicated matters as there was no effective judgment on this problem. Though judgments depend on the world view of the judges I do not consider the judgments had anything to do with the impeachment. The process is somewhat similar though not identical and the Brahmins with the tacit support of the west have played a role in the transition of Dr. Shirani Bandaranayke (SB). However, SB is no substitute for SF and even with media manipulation and the support from the Urban Sinhala nationalists SB cannot draw the crowds which is an important factor in the Springs. Dr. Nirmal Devasiri, another academic like SB could have drawn bigger crowds but even he failed miserably in the Academic Spring.
What is taking place is a struggle between the Brahmins and the common people led respectively by Dr. Shirani Bandaranayake and Mahinda Rajapakse. The Brahmins are bound to fail even with Supreme Court judgments that do not comply with the constitution. Though the Brahmins try to project the tussle as one between the Legislature and Judiciary it is not so and the Brahmins would fail as they do not have any mass support. The Supreme Court and Appeals Court judgments are not objective and it is clear that the two courts have combined with several others to give a judgment against the impeachment before the 8th of January 2013. The question refereed to the Supreme Court by the Appeals Court was simple. It asked “ Is it mandatory under Article 107(3) of the Constitution for the Parliament to provide for matter (sic) relating to the forum before which the allegations are to be proved, the mode of proof, burden of proof, standard of proof etc., of any alleged misbehavior (sic) or incapacity in addition to matters relating to the investigation of the alleged misbehavior (sic) or incapacity?” The Supreme Court does have the power to interpret the constitution but not in connection with matters connected with what takes place within the walls of the Parliament. Even the Supreme Court cannot give arbitrary judgments but only that come within the purview of its Judiciary powers.
Now consider the so called interpretation given by the Supreme Court as an answer to the question referred by the Appeals Court. The Supreme Court says: ” It is mandatory under Article 107(3) of the Constitution for the Parliament to provide by law the matters relating to the forum before which the allegations are to be proved, the mode of proof, burden of proof and the standard of proof of any alleged misbehavior or incapacity and the Judge’s right to appear and to be heard in person or by representative in addition to matters relating to the investigation of the alleged misbehavior or incapacity.”
This is not an answer to the question asked and it says it is mandatory for the Parliament by law to provide what has been stated in the question. However, the Article 107 (3) is very clear on this as it says the Parliament shall by law and or by standing orders provide what is necessary. The Supreme Court has deleted the words or by standing orders and thus it does amount to an interpretation. It does not interpret 107 (3) even if the Supreme Court is empowered to give interpretations to what is taking place within the walls of the Parliament. What the Supreme Court has done is to amend the Article 107 (3) and then give an interpretation of the amended Article. The Article 107 (3) as at present reads : “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”. The Supreme Court has amended it using the legislative powers which it does not have thus encroaching on the powers of the legislative and interpreted the amended Article read as follows. “Parliament shall by law 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”. The words or by standing orders have been omitted by the Supreme Court. The question is whether the Parliament should abide by so called interpretations of the Supreme Court and whether the Parliament should do nothing when the Supreme Court wants to encroach on the powers of the Legislative. It is clear that some more impeachments against some other judges are also on line.
Copyright Prof. Nalin De Silva
