Mandana Ismail Abeywickrema
(UNP parliamentarian Eran Wickramaratne says that if the Chief Justice is removed unconstitutionally, the legality of the appointment of the successor will be placed in doubt and that judgments delivered by a bench with such a person as a member may be contested. “We spoke against the impeachment in Parliament, we voted against it, we will continue our struggle to maintain an independent judiciary,” he said. Wickramaratne noted that for good governance and democracy, the three arms of the government must exercise the legislative, executive and judicial powers as distributed by the Constitution in balance with civility)
Excerpts of the Interview:
Q: Why did the UNP decide to participate in the debate on the impeachment charges against the Chief Justice and the PSC report, although the party had decided to vote against the report?
A: In a Parliamentary democracy it is normal to participate in a debate and record your arguments and positions. That will be available for future generations. If we don’t participate in the debate these arguments will not be known and the opportunity to inform citizens is also lost. The UNP was criticized for not participating in the debate on the abolition of the Independent Commission and the removal of the two-term limit on the Presidency, which is known as the 18th Amendment.
Q: Do you feel that it was an effective move if the UNP did not accept the report by the PSC?
A: Like in most important decisions there is more than one view. The majority view of the UNP Parliamentary Group was that we should participate. I think that decision has been justified when you analyzed the debate, its arguments and the government’s erroneous position that was exposed.
We do not accept the PSC Report. The Superior Courts have concurred with our view. Documents were tabled at the PSC on Thursday 6th December 2012. The PSC Chairman, Minister Anura Priyadharshana Yapa announced that the Chief Justice and her lawyers will be given time until 1.30 pm on 7th December 2012 to file answers. Never mind the CJ and her lawyers, I would want to know whether the PSC members themselves had enough time to read the documents and understand the logic in a few hours. It would then require calling for evidence, hearing of witnesses and so on. It was only natural that the CJ and her lawyers walked out of the PSC. Witnesses were called on 7th December, evidence heard, judgment determined and report prepared, and draft approved by the PSC by 8.30 am on the 8th of December. In a few hours a historical travesty of justice. Where in the world would this happen? Which right thinking person could accept the Report?
Q: Opposition and party leader Ranil Wickremesinghe maintains that the judiciary cannot give rulings to parliament and that parliament is supreme. How do you justify this stance?
A: We must examine the context of the Opposition Leaders remarks. He is right that the court has no jurisdiction on the functions of a Member of Parliament in his capacity as a PSC member. I am a member on the Committee of Public Enterprises (COPE). I receive information from the public. I as a member of COPE use that information in the discharge of my Parliamentary responsibilities – questioning officials, obtaining explanations and also suggesting possible solutions. I am discharging my duty in the public interest. I have parliamentary privilege to do so. Even those giving me information are safeguarded, as I do not have to disclose my sources to anybody or even a court. So there are functions of Parliament outside the jurisdiction of the court.
Impeachment is the responsibility of Parliament. It is Parliaments addressed to the President that will determine the removal of a Judge of the Superior Courts. In that sense Judges don’t determine the fate of Superior Courts Judge whose conduct has warranted an investigation. The Supreme Court is clear on this principle. In that sense Parliament is supreme. However, on the interpretation of the Constitution you may also say that the Judiciary is supreme. The Constitution in Article 4 (c) directs Parliament to exercise judicial power through judicial institutions, except in matters pertaining to the privileges of Parliament and its members.
Article 125 (1) leaves no ambiguity that the Supreme Court shall have sole and exclusive jurisdiction to hear and determine any questions relating to the interpretation of the Constitution. The Supreme Court has determined that proof being matters of law, have to be provided for by law to avoid uncertainty as to the proof of alleged misbehavior, the right of the Judge the ‘right to be heard’, cross examine witnesses, adduce evidence must be provided. The Judge is also entitled to equal protection of the law enshrined in the Constitution. This is what Mr. Wickremesinghe tried to provide for from the very inception of this crisis. He argued that an independent panel of these Judges go into the allegations and through a process arrive at findings. He went as far as to say that the Judges could be constituted from Commonwealth countries. When he was the Prime Minister and an impeachment motion was brought against the then CJ, it was Mr. Wickremesinghe that initiated a process to obtain eminent Judges of the Commonwealth. Justice must be done and seen to be done.
Q: How does the UNP respond to the criticism levelled against the party that it is towing the government’s line, which has been made worse by government ministers publicly thanking the UNP for its actions?
A: We are not certainly toeing the government line; I am insulted by the question. We have opposed the impeachment process at the PSC, in Parliament and also outside.
The CJ and her lawyers walked out of the PSC. The Opposition party members of the PSC walked out the next day when it was evident that the principles of natural justice were being violated. We spoke against the impeachment in Parliament, we voted against it, we will continue our struggle to maintain an independent judiciary.
Q: Do you believe that a country’s democratic balance could be maintained if one arm of the three democratic institutions claims supremacy?
A: The Sri Lanka’s Republican Constitution states that the sovereignty of the people shall be exercised by the Legislature, Executive and Judicial powers by Parliament through courts. There is a separation of powers in the Constitution.
The question of supremacy is misplaced. Most right thinking people will agree irrespective of all the theoretical arguments. It’s the Executive that is most powerful. Even the Legislature has been diluted by the distribution of Executive power to about a hundred MPs as Senior Ministers, Ministers, Monitoring Ministers and Deputy Ministers. For good governance and democracy, the three arms of the government must exercise the legislative, executive and judicial powers as distributed by the Constitution in balance with civility. The UNP has already stated that the country needs a new Constitution. On the assumption of a new UNP administration we will proceed to draft and adopt a new Constitution.
Q: Who in your view is supreme?
A: Let’s not fool ourselves. The primary conflict is between the Executive and the Judiciary. Parliament has been devalued by the government creating and artificial two-third majority by getting MPs to cross over. MPs have betrayed the mandate given to their parties and crossed over for positions and personal gain. The Courts are yet to determine whose sovereignty is violated – is it the voter or the MP? When the proper decisions are made by the court the Legislature will regain its dignity. The weakening of the opposition has mainly been caused by improper judgments.
Now the executive is weakening the independence of the Judiciary. Parliament is the instrument that is being used in the exercise.
Q: How do you think the current clash between the executive, legislature and judiciary could be resolved? Do you think the government could resolve the issue?
A: I am of the view that those who created the Constitutional crisis can also resolve the crisis. The President’s actions will be closely observed by everyone. The President made some comments that he will ensure that justice is done. Let’s wait and see.
Q: What role can the UNP as the main opposition play in resolving the current issue?
A: The UNP has already played its role in trying to influence the PSC process and failed.
The UNP has opposed the resolution to impeach. We will continue to educate the public that it’s their rights that are at stake.
Today, the politician interferes with the work of the local police stations. It won’t be too long when the judge on the bench will be told what to do. We as the Opposition have a continuing responsibility to alert the public against these dangers.
Q: Given the current situation, what future do you see for the country’s judiciary?
A: If the CJ is unconstitutionally removed the legality of the appointment of the successor will be placed in doubt. Judgments delivered by a bench with such a person as a member may be contested. The CJ as the Chairman of the Judicial Service Commission oversees appointments, promotions and transfers. The legality of judgments may be challenged even years later. There may be confusion on property rights, investment contracts, commercial contracts, international trade and a host of other issues. Public confidence will be shaken not only in the Judiciary but in the Executive and the Legislature too.
Q: What implications do you think the country would have to face locally an internationally due to the government’s actions over the impeachment of the Chief Justice?
A: I do not want to speculate on what can happen internationally. We are concerned about what’s happening in Sri Lanka. The time has now come to stop blaming each other. The Opposition, media and civil society need to get together to oppose the slide into a dictatorial state.COURTESY:THE SUNDAY LEADER