SB is no substitute for SF

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

Why adopt extra judicial methods

As we said last week the western legal system has begun to collapse. Unlike in medicine, the other oldest western profession in Sri Lanka, it is impossible to have simultaneous systems in judiciary so that one could go to an alternative system if one is not satisfied with the dominating western system. There can be only one legal system in a country as it would play havoc to have simultaneous legal systems operating, though there are exceptions as in the case of laws on marriage. However, overall there can be only one judicial system and in Sri Lanka it is the western system based on Roman Dutch Law that is the recognized legal system. The collapse of the western legal system began with the publicity given in the media to the impeachment motion. The charges against the CJ were published the moment they were presented in the Parliament and the lawyers of the CJ responded with leaking their written submissions to the Parliamentary Select Committee. Then there were the theatrics by some of the lawyers who not only shouted Jayawewa and Bhangawewa but dashed coconuts though apparently in front of a Bo tree and not in the premises of a devala. The CJ herself used the public entrance to come out of the Supreme Court building on her way to the Parliament, just as a politician does, and on Monday the magistrates, district court judges, and some other judicial officers were summoned to Colombo ostensibly to apprise them of her defense against the media reports that had been published. As a result the courts in the provinces could not function and the litigants were placed in the same position as the patients are placed when the medical practitioners resort to trade union action. It may not be a strike by the judges and the magistrates but it amounted to such. The CJ has set up a bad precedence and in the legal profession where many decisions are taken resorting to precedents, one can only speculate as to what would happen in the future.

The three wheeler drivers have already demonstrated in favour of the impeachment motion and on Tuesday a Sathyakriya had been organized in order to invoke the blessings of the gods on the CJ. Somebody could organize a sathyakriya in favour of the present judicial system in the country but I doubt very much even the gods could help the Roman Dutch legal system that we had had to put up with for few centuries. This is a good opportunity to think of an alternative legal system based in our culture but I am sure that the legal pundits would only scorn me for even suggesting such “outrageous” ideas! In any event there are some misconceptions that have already been exposed and people are now freely debating on the powers of the judicial, and on cases before the courts which would have been anathema just a few weeks ago. Individuals are debating freely and publicly on what were termed subjudice matters, and we now know that the learned judges would not be swayed by public debate on the material before courts. If the lawyers could argue before the bench to sway the judges to their opinion, it is what they do in effect, there should not be any reason why the laymen could not express their views so that the judges also could hear, and listen to if they are interested. The laymen may not be aware of the principles of law but they may be having valid points on cases that are before the courts. Also they may raise certain fundamental issues that escape the minds of the lawyers who very often argue by analogy with the help of precedents. We also know now that it is not a crime to criticize a judgment though one has to abide by a decision of the Supreme Court. In the case of the other courts one could appeal to a higher court which in effect says that not only that one does not agree with the verdict given by the particular court but one does not accept such decision.

The ideas on contempt of courts have also been changed since the impeachment motion was handed over to the speaker, and criticizing a judge does not amount to contempt of courts. If one (not the members of the select committee) does not answer the summons issued by courts it could amount to contempt of court, and I would say that hooting at judges, stoning of the residents of judges lie on the border of contempt of courts. In any event those who resort to such actions are punishable under the law, though very often those who are behind such actions go unscratched. Even if we stick to the present legal system, these concepts have been given different interpretations by the public, who after all have the sovereignty at least in the abstract. The sovereignty of the people is now becoming a concrete concept and the people that includes the present writer has begun to feel the sovereignty without keeping it to the constitution and to the books and journals on political science in the abstract. These are good developments and we have to be thankful to those who brought up the impeachment motion for initiating the democratization process of the legal system. It is true that we all have to respect the judicial system but we do not have to be scared of the system.

However, what is clear is that the CJ has resorted to extra judicial methods in facing the impeachment motion. Not only that the CJ has acted in the above ways, the cases filed against the Parliamentary Select Committee (PSC) based on the impeachment motion are to be determined by judges appointed by the CJ herself and this goes against the maxim one should not hear one’s case. It may be said that in the PSC the government MPs are in a majority and that as far as the impeachment motion is concerned it is a foregone conclusion. We do not know what conclusion the PSC would come to but nobody could expect a committee with the opposition members in a majority. It is the way western democracy works though one may call it majority supremacy. Unless western democracy comes up with the concept of minority supremacy we would have to put up with the so called majority supremacy if we do not design our own schemes to deal with such situations. The composition of the PSC or any other matter as far as its decisions are concerned does not give the CJ even moral authority to adopt extra judicial methods in her defense.

It is said that the judges of the higher courts do not have the rights of the other people as far as their defense is concerned. It is not quite so and if a judge is involved in a crime as an individual he/she would be prosecuted under normal law and would have the opportunity to defend him/her. However the question arises as to what happens if a judge abuses the judicial power or acts in a way unbecoming of a judge. This is a problem that the western hierarchical systems which are based on a linear thinking have to surmount. The judges are at the apex of the judicial hierarchical system and who would judge them as judges? This is where so called separation of power comes to the picture. The separation of powers as a concept was introduced after the unfinished English revolution by the bourgeoisie who wanted the legislative judicial and executive power to themselves. However they were not successful though the parliament was named supreme with the king continuing to be the head of state. The judges were also in the parliament in the form of the Privy Council and there is no clear demarcation of powers. The American Revolution realized these shortcomings and adopted a constitution that said sovereignty is in an abstract people. However in USA it is clear that it is the President who controls everything in the final analysis, and there is no separation of powers as such except in theory. The abstract concepts do not work in practice even in western Physics let alone in western Political science. We who have “inherited” these concepts as a result of colonialism also have a constitution which proclaims that the sovereignty is in this abstract entity called the people. In ancient Sri Lanka there was a “separation of powers” among the Sangha, King, and the Public as shown by Trevor Ling. We should be ashamed that we could not come out with this “thrikendra bala” (tri - centered power) system before Ling pointed it out. However recently we have mixed up this system having elected members of Sangha as MPs. In any event we have not been able to absorb the western system of “separation of powers” into our culture and we now have a pickle (achacharu) as far as separation of powers is concerned. In Sri Lanka the Parliament is supreme to the courts and the judges have to be judged by the Parliament. The argument that the MPs are not trained judges does not hold water as judges themselves do not have an expertise on so many matters that they pronounce judgments. However, I am happy that the public have begun to get themselves involved in the system not as an abstract dead entity but as a concrete living force.

If the CJ wants to change the present system I am with her but she has to wait for the decision of the President on the address to him by the Parliament according to the present constitution. The impeachment motion has been brought under the present constitution which says in 4 (C) that “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”. The Parliament is superior compared with the courts according to this Article though secondary to the abstract people, and the judicial power as well in addition to legislative power is exercised by the Parliament. It is not only through courts and tribunals that the Parliament exercises judicial power but through institutions created and established, or recognized, by the Constitution, or created and established by law, and I argue that the PSC is such an institution. As we have argued last week Article 107 (3) empowers the Parliament to decide on the procedure through standing orders and 107 (3) is now law and the Supreme Court has no jurisdiction to decide on Acts already passed.” It is clearly stated in the Article 80(3): “ Where a Bill becomes law upon the certificate of the President or the Speaker, as the case may be, being endorsed theron, no court or tribunal shall inquire into, pronounce upon or in any manner call in question, the validity of such Act on any ground whatsoever.” The Supreme Court may decide on Bills before the Parliament but not on Acts. It is in accordance with 107(3) that the standing orders 78(A) have been passed in the Parliament and I am afraid the Supreme Court has no jurisdiction on standing orders passed in accordance with the Article 107(3) that became law as far back as 1978.

Though it gives the appearance of a clash between the legislature and the judiciary the impeachment motion has deeper implications politically. It is nothing but a Hulftsdorp Spring after the Academic Spring of FUTA, and the western forces want to stage a spring to oust the so called Rajapakse Regime by hook or crook as they could not pressurize the government to give into the LTTE that was supported by the west. The same forces, except for a few additional lawyers, who were with the LTTE and separatism or federalism leading to separatism are against the impeachment motion and the intentions of these forces are very clear. As long as Mahinda Rajapakse is the president the west cannot charge him and Gotabhaya Rajapakse for so called war crimes and they want to oust him as soon as possible through Springs. They want to oust the government and bring another Prabhakaran to the fore may be through the TNA. The west knows that Mahinda Rajapakse is going to be there until at least 1921 (now that Ranil Wickremesinghe has become the leader of the UNP for another six years it is no more a dream of Rajapakse supporters) and impeachment motion is a good opportunity for them to push the forces against it to oust the government. However what the west does not realize is that in Sri Lanka we have an eternal summer and no need for springs.

Copyright Prof. Nalin De Silva

More on the impeachment of CJ

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