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Appointments and Removals:
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 SUBJECT TO APPROVAL BY THE SENATE
One of the most worrying incidents that took place during President Rajapaksa’s second Presidency had been the impeachment of the Chief Justice. She had not been the best choice for the position and the Opposition had raised questions about the appointment and her conduct, after the appointment was made. But the impeachment was badly handled, and in terms of bizarre provisions in the relevant instruments, the Constitution and the Standing Orders of Parliament. The former simply specified that impeachment should be by procedures laid down by Standing Orders, and the relevant Standing Orders had been hastily formulated when President Jayewardene wanted to put pressure on the Chief Justice he had appointed, one of his private lawyers, who had nevertheless begun to speak out against government excesses.
The leader of the Opposition was to grant that only half the required Standing Order had been set up, and since that had worked and the then Chief Justice had been subdued, the other half had been forgotten. So the provision remained that Parliament appointed a Select Committee to investigate, which involved it acting as both prosecution and judge. In the intervening thirty years it had often been pointed out that these provisions were unjust, and commitments had been made that they should be changed, but nothing had been done about this.
The Select Committee appointed by Parliament made matters worse by behaving in boorish fashion and giving the Chief Justice no time to formulate a defence. It also gave her no notice of witnesses it proposed to call, and summoned them after she had withdrawn, as had done also the opposition members of the Committee. Rulings by the Courts that the proceedings should be stayed were ignored, and the motion was duly carried, with only a very few members on the government side refusing to vote for the motion.
Though government also realized how unfair the system was, and some members pledged to change it, even while arguing that what had been done was perfectly constitutional and so could not have been avoided, all this was forgotten after the Chief Justice was removed, and Mohan Pieris installed in her place. The Speaker showed his contempt for, or perhaps just his ignorance of, Standing Orders in failing to put my proposals to amend them to Parliament. The Standing Orders themselves mandated that any such proposal to amend should be put to the House and, after being seconded, be referred to the Committee on Standing Orders, but instead the Speaker said he would refer them direct to the Committee. Since he had avoided making clear the mandate Parliament would have bestowed, he failed to summon the Committee, and got away with this for over a year. Before that, despite repeated requests, though sadly only from me, he had not summoned the Committee for three years.
I regret that I was the only Member of that Committee to make repeated requests that the Committee be reconvened. Unfortunately the Opposition Chief Whip who was on the Committee had no understanding of the importance of Standing Orders, while the TNA Representative, Mr Sumanthiran, who had worked assiduously with me to redraft about a quarter of the whole in the first three months of the new Parliament, kept quiet when meetings were suddenly stopped, perhaps because we had been too efficient. Obviously it made sense for the TNA not to bother too much to increase the effectiveness of Parliament, since that might have detracted from their main contention, that Parliament was incapable of serving the interests of the Tamil people. Read the rest of this entry »
Underlying Basil’s solipsism was his political ambition. He made no bones about the fact that he saw himself as his brother’s successor. Indeed, he had been put into Parliament before the 2010 election, though a resignation of a National List member that was engineered, on the grounds that there had to be a Rajapaksa available for appointment as President if anything untoward happened to the incumbent. And though soon after the election of 2010 Mahinda Rajapaksa introduced a constitutional amendment to remove term limits, so that Basil’s hope of being seen as necessarily the government candidate in the next election was dashed, the President placed no restrictions on him presenting himself as effectively the main decision maker in government.
So, in addition to his work in the North, he set about taking control of developmental projects all over the country. Tourism was brought under the Ministry of Economic Development, which allowed him soon after the government was formed to sell a prime block of land in Colombo to Shangri-La hotels, a crass measure since it made it difficult afterwards to refuse outright ownership to such investors. Fortunately, after a great outcry, the principle that only long leases should be permitted was accepted, but again the move was typical of Basil’s propensity to push through deals quickly, regardless of wider consequences.
While he used to the full his position as patron of international ventures, he also tried to take control of the administration of the country at large. He did this through the Samurdhi programme, the welfare programme that was in place all over the country. Initially started to promote entrepreneurship, it had soon become the main vehicle of government handouts to chosen sections of the population.
Basil decided to use it to expand his empire, with graduates employed in every Division in the country to affirm the primacy of his Ministry. Indeed I was told that there had even been an attempt to appoint Samurdhi officials as Grama Niladharis, the office that was the first point of interaction between people and government. The Ministry of Public Administration staved off this effort, but it meant that for several years Grama Niladhari positions that were vacant were not filled, until finally that Ministry reasserted its control of the position. Indeed a measure of Basil’s unpopularity with his colleagues was the categorical statement, when I told the Minister that he should guard against his responsibilities being encroached upon, that the Ministry of Economic Development was encroaching on everything. Read the rest of this entry »
1. How do you respond to the ICG report allegations that the impeachment and removal from office last month of the country’s chief justice constituted the completion of a “constitutional coup” which began in 2010 when parliament passed the eighteenth amendment, removing presidential term limits and handing the president responsibility for appointing judges, senior police and human rights officials?
As always, the ICG confuses various issues in its relentless campaign to denigrate Sri Lanka as a whole. The 18th amendment, while not ideal, was an improvement on the 17th, which confused two different constitutional dispensations. In any Presidential system the President does have responsibility to appoint, but ensuring consultation is vital. Unfortunately the consultation mechanism enjoined by the 18th amendment has been nullified by the decision of the 2 opposition members on the 5 member Council to boycott its proceedings after accepting appointment, thus permitting anyone the President suggests for any position to be appointed without question.
I thought the manner in which the Chief Justice was removed was regrettable, but she was certainly flawed, and I hope now I will get better cooperation in areas in the National Human Rights Action Plan in which she was not interested..
2. Has the government shown sufficient commitment to fulfill the recommendations of the LLRC, particularly in relation to investigating disappearances and evidence of child conscription, demilitarising the north and reaching a political settlement that devolves some power to provinces? Could it do more?
The government has done a lot, and I attach the latest report, which is also available on www.priu.gov.lk. Unfortunately the Task Force was headed by someone who did not devote enough time to monitoring and promoting action, though the Civil Servant involved did his best. Now the most senior Civil Servant in the country has been appointed to run things, and there has been a marked difference already in responsiveness to issues that those who want to see quicker action, including myself, have raised. It must though be understood that we have moved much more quickly in some areas than any other countries which suffered similar tragedies.
Given the plethora of worries about the financial integrity of the Chief Justice, it may seem redundant to demand higher standards also from the Select Committee looking into her case. But the Select Committee itself provided the principal reason for circumspection when it declared that ‘The office of the Chief Justice is a position which demands maximum confidence of the public. A moral conduct of an exceptional degree is expected from a Chief Justice unlike from an average citizen. Your Committee observes that any discredit to such conduct leads to a decrease in the confidence of the public towards a holder of such office’.
That being the case, it must be obvious that Parliament, which is, or should be, an even more exalted entity, must also have the confidence of the public. It must therefore be even more careful not to seem to be biased in its conduct or hasty in its decisions.
Given that the misdemanours the Chief Justice is alleged to have committed would, if proved, constitute criminal conduct, they must be investigated in accordance with criminal procedures. This includes presenting evidence systematically and allowing adequate opportunities for it to be challenged. If that is not done, and clearly seen to be done, public confidence in Parliament would be eroded.
Prof. Rajiva Wijesinha, the government’s nominated parliamentarian and adviser to President Mahinda Rajapaksa, has refuted media speculation over possible disciplinary action against him over the decision to abstain from voting in favour of the impeachment of Chief Justice, Dr. Shirani Bandaranayake.
In an interview with Ranga Jayasuriya, the former academic reiterates his stance to abstain from voting and contends that there is no culture of sycophancy in the ruling party.
1. There is talk that the ruling UPFA is planning to take disciplinary action against you for not voting for the impeachment . Are you aware of any such move ?
I have read about this in a couple of papers and have since been asked about it by other media outlets. I have heard nothing from any official source, and as I observed to the lady (from the Lankadeepa) who called me, it is significant that the papers (such as that and Mawbima) saying such things are strongly opposed to the government. I would suggest that those wanting to create trouble for me would also not mind trouble for the government.
2. The president and his inner circle may have expressed their ‘displeasure’ for your act of insubordination..
If this is a question, it would depend on what is meant by ‘his inner circle’. But I would think, while some individuals might be displeased, insubordination is the wrong word, because I explained my position clearly.
3. Do you think Sri Lankan politics, with its deep seated culture of sycophancy, which was made increasingly clear by the voting patterns of ruling party MPs during the 18th amendment and the impeachment motion, provide even bare minimum room for the elected representatives of people to act true to their consciences?
Firstly I see nothing wrong with the 18th amendment, which was a great improvement on the confused and confusing 17th amendment – just as the Local Government Elections Bill, though flawed, was a great improvement on what we had had before.
Secondly, while there are certainly instances of sycophancy, it is not a culture, as we can see from the principled position of politicians such as D E W Gunasekara, and indeed the different opinions from those of the President and his manifesto expressed by different politicians, on say issues such as 13 plus.
And I am sure that, recalling the adulation of previous Presidents by individuals also engaged in adulation now, the President will not be fooled by sycophancy, and will prefer the loyalty of principled politicians such as DEW Gunasekara.
4. Do you still stand by your position which prompted you to abstain from voting for the impeachment?
5. Why did you abstain? The proper thing could have been voting against the impeachment?
No, because as I explained in the speech I could not deliver but which appeared (in the Island) the following Sunday, I felt the conduct of the Chief Justice had not been entirely proper, and I did not want to seem to condone this.
6. Isn’t it a bit lame to abstain, specially, when you know that the circumstances under which the chief justice Shirani Bandaranayake was impeached was manifestly unfair and a breach of natural justice and that the PSC was ruled unconstitutional as the country’s apex court?
I don’t see this as lame at all, given the circumstances as I have explained them. The problem is that we had an inappropriate Standing Order, which should have been amended years ago, as suggested by three distinguished opposition MPs in the eighties, and promised since. Sadly the Committee to amend Standing Orders has not met for three years, and I am the only MP who has brought this up regularly with Parliamentary officials and written to the Speaker about it. It is a reflection on other members of the Committee, and in particular the opposition members who have a greater responsibility to ensure proper procedures, that no one else bothered about this.
The problems with the Standing Order, and the process followed by the PSC, did not warrant a vote against the motion, given the irregularities that had emerged notwithstanding the procedural flaws. Even though it is regrettable that Dr Bandaranayake’s lawyers were not told about the witnesses to be called so that they might have had an opportunity to cross examine them, the evidence of Justice Shirani Thilakawardana seemed very worrying.
7. Do you accept the new chief justice Mohan Peries as the lawful chief justice of this country?
Since the President had removed Mrs Bandaranayake from office following the Parliamentary vote, and she had indicated her decision to vacate office, it was necessary for another Chief Justice to be appointed. I would have preferred more consultation, but the failure in this regard I attribute to the Opposition which has completely flouted the 18th amendment.
I have regretted Mr Sumanthiran not accepting appointment to the Parliamentary Council because I believe he could contribute a lot in a small and serious Committee, and perhaps had he been on the Council, Dr Bandaranayake might never have been appointed. But he at least refused the position, whereas the Leader of the Opposition and Mr Swaminathan accepted and then welshed on their responsibilities.
I am astonished that no one has drawn attention to their failure in this regard, because had they commented conscientiously on any nominations – which government representatives should also do – then the President would have an obligation to reconsider. When that does not happen, the President may well go ahead with appointments that first come to mind or are suggested to him, whereas reasoned objections should lead to further reflection and, if appropriate, a change. In this case, with the Parliamentary Council not functioning satisfactorily, the President had to go ahead as he had done with Dr Bandaranayaka, when the Opposition was blathering about her elsewhere, but not where they should have.
Problems connected with the attempted impeachment of the Chief Justice require solutions. I believe that impeaching the Chief Justice is no solution to anything, and will in fact lead us to forget the actual problems.
In suggesting the following practical solutions to the problems, I realize I am probably wasting my time, since we have developed a culture of addressing problems with sledgehammers designed for other uses. We generally land it on our own toes as well as the toes of those connected peripherally with the problem, instead of the people or the procedures that are the root cause of those problems.
Thus the United Nations as a whole is attacked for the Darusman Report, when they should have been our most trusted allies in refuting the propaganda of those who pushed the Secretary General into such a selective analysis. Tamara Kunanayagam gets dismissed for the Geneva Disaster, and those who contributed to it are permitted with impunity to deceive the President about leading lights in India as well as in the Sri Lankan Freedom Party, which should be the President’s closest allies in fulfilling his developmental agenda.
I have no doubt then that the same propagandists who accused Dayan Jayatilleka and me of precipitating the crisis in Geneva will claim that the solutions I propose are based purely on personal ambition. But that will be a small price to pay if there is greater awareness of the need for proper procedures as well as clear guidelines for the conduct of public officials.
I have now had an opportunity to go through the report of the Parliamentary Select Committee that looked into the conduct of the Chief Justice, and its contents amply confirm the position I have advanced, namely
- Shirani Bandaranayake has not always acted properly
- She should not be impeached
With regard to the first point, the main problem is her getting rid of other judges and appointing herself to head a Bench looking into Trillium matters. It was quite improper that, following a request for a ruling on a very different matter, she should arbitrarily have put herself in charge of those cases instead of a senior judge of proven competence. And it was particularly deplorable that she should have done this when engaged in business deals with concerned parties.
One problem with regard to which the Select Committee finds her guilty does not seem at all appalling. To accuse her of misconduct because she is in overall charge of judicial procedures at a time when her husband might be subject to them is not at all reasonable. Had she tried to influence the judiciary in such a situation, she would certainly have done wrong, but to find her guilty because she is in a position to do wrong is a strange interpretation of justice. All she need do to ensure nothing improper occurs is recuse herself from decision making with regard to cases involving her husband.
The other point on which she has been found guilty is not declaring various accounts in her annual declaration of assets and liabilities. Several other improprieties in this connection are also noted in the Report, some of which also seem reprehensible. However, there is provision for prosecution for any serious misdemeanours in this regard. Given that there is a judicial process laid down for those suspected of offences, it is best that that process be followed. For Parliament to sit in judgment on such matters, without ensuring due judicial process, is inappropriate, and worries in this regard have been increased by the haste with which the Parliamentary Select Committee went about its business.
Both this resolution, Mr Speaker, and the manner in which it has been pursued, make very clear the need for radical reform. We have long known that we have an illogical Constitution that confuses all sorts of political principles. Sadly we have not taken seriously the crying need to change it wholesale, not simply engage in piecemeal reforms.
Nowhere is inconsistency more obvious than in the relations between the three traditional branches of government. Underlying this inconsistency is a failure to ensure accountability, despite the claim that power belongs in all instances to the people. The Executive is accountable in that it submits itself to democratic elections every few years, but the period of six years that is prescribed, and the provision, based on Westminster norms, of having an early election, make this accountability less than perfect. And the system of elections we have for the Legislature makes a nonsense of accountability, since that requires a closer relationship between constituencies and their representatives than the preferential vote system makes possible.
With regard to the Judiciary, there is almost no accountability. Over the last year I have tried, in pursuing action on our National Human Rights Action Plan, to suggest that the Judiciary lays down norms with regard to its activities, but replies when received were not positive. The Secretary to the Ministry of Justice got no reply when she suggested that the Chief Justice convene a meeting on sentencing, and the Institute of Human Rights was not allowed to proceed with a training programme on this subject. Given the gross overcrowding in our prisons, the failure of the Judiciary to act as requested is most depressing.
Depressing too is the failure to institute codes of conduct. The report of the PSC suggests, even on the best possible interpretation, indiscretions that should never have been perpetrated. It is true that many have been responsible for such indiscretions, but in the absence of strict guidelines, that are carefully monitored, a culture of propriety is hard to sustain.
I would have hoped that the Judiciary would draw up its own guidelines but, if this does not happen, it will be necessary for Parliament to do this. The judicial power of the people is exercised by Courts set up by Parliament, and therefore it is our responsibility to draw up guidelines for the exercise of such power even while scrupulously refraining from interference in decisions. It is best then if we leave it to the Judiciary to enforce those guidelines, and only ensure careful monitoring through the financial controls exercised by Parliament.
An Interview with Prof.Rajiva Wijesinha M.P. – Part 3
Q: Some observers of the Sri Lankan situation opine that a creeping illiberalism is pervading society at large under the Rajapaksa regime. As a liberal and an advocate of liberal democracy, are you not perturbed by the erosion of those very values in Sri Lanka? Are you not concerned over the creeping illiberalism?
A: I don’t think there has been any particular erosion of values recently, compared to what we went through under Jayewardene. Indeed we have a vibrant media, and relentless criticism of whatever is seen as abuse, which was certainly not the case in those days. Personally I believe that things began to ease under Premadasa, even though the Colombo elite who relished Jayewardene’s authoritarianism complained of Premadasa. But I remember the media freedoms he introduced, the liberalization of communications and the fact that we had free elections.
The point was that Premadasa , like President Rajapaksa, thought what he was doing was for the benefit of the people at large, and they were not frightened of the people or of elections. Of course both naturally attract people who are not as interested in the people as in themselves, and abuses occur, but we do have safety valves in the form of an independent judiciary which did not exist in Jayewardene’s time.
Q: But the Judiciary is under attack?
A: Unfortunately you now have a clash with the judiciary, but we must remember that, though impeachment of the Chief Justice seems excessive, we are dealing with a lady who was put on the bench with no previous judicial experience simply because the then Minister of Justice recommended her. Such a person rising through seniority to the position of Chief Justice is an anomaly, whereas President Premadasa was able to appoint a totally respected person, who was the most senior judge on the Bench at the time, as Chief Justice when a vacancy arose – confuting those who said he would make a political appointment.
” I think we should be working towards constitutional reform based on recognizable constitutional principles. One of these should be strengthening the legislative role of the legislature by strengthening the role of committees in legislation”
Q: As Liberals do you not find cohabitation in this Govt incompatible with your beliefs? Do you not feel uneasy in the midst of fellow travellers of liberalism/ liberal democracy in the conferences and other events you frequently attend, as the government that you are part of has violated with impunity, those very values you and fellow liberals advocate?
A: There is no reason whatsoever to feel uneasy, because I am proud to be associated with a government that has done more for the people of Sri Lanka than any other in recent times, and set an example to the world of how to deal with terrorism. I think we could do more for the Tamil people, and to make the minorities in general regain confidence in Sri Lanka as a whole, but we have certainly done more than critics of the government declared would be done when we got rid of the Tigers.
Liberals almost all over the world have to work in coalitions, which means being in government with those one does not agree with totally. We all know that compromises are necessary, but one does not compromise with regard to fundamental principles, and I am known well enough by Liberals internationally for them to be confident that I will not compromise on fundamentals. But I will not hesitate to criticize those who attack Sri Lanka unreasonably, with no attention to the singular positive achievements of this government. Read the rest of this entry »
The recent decision of the President to seek further advice before deciding whether to proceed with the impeachment against the Chief Justice is most welcome. It suggests that he feels concern about the position to which various elements in government were propelling the legislature.
There is no doubt that there have been several misjudgments with regard to the treatment of the Chief Justice. It was certainly unusual that someone with no previous experience of the Courts should have been elevated to the Supreme Court, and I have even heard it said recently that this was designed to prevent the elevation of the then Secretary to the Ministry of Justice, who would in the ordinary course of things have become the first woman Supreme Court Justice. But she fell foul of the Minister, and did not receive her due, though all those working on implementation of the Human Rights Action Plan have found her more conversant with the law, as well as administration, than anyone else in government now.
Be that as it may, there is nothing intrinsically wrong with putting an academic on the bench, and in fact Mrs Bandaranayake’s judgments have generally been acceptable, with nothing as outrageous as that which emanated from a previous Chief Justice. However it should have been recognized that to fit her in on a par with others with regard to seniority was not particularly wise, if seniority on the Bench was the only criterion for being elevated to Chief Justice. Certainly, given the tender age at which she was appointed, it was inevitable that, if that were the only criterion, she would be Chief Justice sooner than later, and have a lengthy tenure.