By
Mike Andree

A delegation of senior lawyers, headed by President’s Counsel and former Attorney-General C. R. De Silva met the President in a bid to resolve the ongoing crisis between the Judiciary and the Executive.

In order to peacefully settle this issue, so that both parties could come out of the controversy untarnished, the delegation pleaded that all malicious, defamatory and libellous propaganda, by the State media, should immediately stop so that a serene atmosphere, conducive to a peaceful settlement, be created.

It must be noted that the High Court Judges did not initially participate in the campaign supporting the CJ. They remained rather detached from the ongoing crisis and some supporters said that the CJ was isolated. The High Court Judges refused to even make a statement.

But, thanks to the untiring efforts of the State media, the High Court Judges, no longer unable to suffer the insults heaped on the judges of this land by those media mavericks, not only attended the meeting of Judges at the Supreme Court complex, but also issued a statement with regard to what they thought of the impeachment process.

I quote from a news report on the meeting of the judges: “The judges who met at the Supreme Court complex yesterday afternoon said they were concerned about the ongoing impeachment procedure and resolved that all defamatory media statements against the Chief Justice and the judiciary should be stopped.

“Such statements affect not only the Chief Justice personally but the entire judiciary,” the joint statement said.

“We request those concerned to consider the grave damage that would be caused to the rule of law in the country due to such statements.” The Judges also proposed that the impeachment against the Chief Justice should be transparent and conducted impartially.

“They further said that the parties, who brought the impeachment allegations against the CJ, were themselves conducting the inquiry and thus it was a blatant violation of natural justice. ‘We reiterate that nowhere in the world would those who make allegations hear their own case.

“The judges also stated that they had a question on the example displayed to the world with regard to the removal of the Chief Justice of this country.”

The Judges of this country have throughout history, irrespective the political turmoil the country has undergone, been revered by the public.

As a layman, I queried how accusers could sit in judgement. I believed it was ludicrous that those who signed the impeachment motion, should sit in judgement on their own motion to remove the fourth highest person in the governmental hierarchy. I remain vindicated as the judges of this country have posed the same question.

I would like to quote the late Anura Bandaranaike, the late Sarath Muttetuwegama and the present Leader of the House, Dinesh Gunawardene, who wrote a dissenting report against the findings of the Select Committee, appointed to inquire into the impeachment of Justice Neville Samarakoon.

They said: “This Select Committee was appointed on a resolution, placed on the order paper of the House on 5th September, 1984, signed by one third of the Members of the House and purporting to invoke provisions of Article 107 (2) of the Constitution. The main point of the resolution, contained at the end of the resolution, requests the removal of the Hon. N. D. M. Samarakoon on the ground of proved misbehaviour.

The acts, which according to the movers of the resolution, constitute proven misbehaviour are set out in the resolution. An important preliminary objection was raised by Mr. S. Nadesan, that to bring Standing Order 78A into the list of Standing Orders and in seeking through this Select Committee to act under the provisions of Standing Order 78A, the Constitution of Sri Lanka was in fact being violated.

“The point made by Mr. Nadesan, was that, in the context of a Constitution, such as that of our country, in which the separation of powers was jealously protected, Samarakoon was guilty of “proved misbehaviour”, was violating the provisions of Article 4(c) of the Constitution, which stipulates that except in matters concerning parliamentary privileges, the judicial power of the people shall be exercised exclusively through the Courts.

“The signatories to this statement, while conceding that Mr. Nadesan’s arguments have considerable cogency, are not in a position to come to a definite conclusion on this matter. We would urge that HE the President should refer this matter to the SC for an authoritative opinion therein-under Article 129 (1) of the Constitution.

“The signatories to this statement, however feel strongly that the procedure that Parliament finally adopts should be drafted along the lines of the Indian provisions, where the process of inquiry, which precedes the resolution for the removal of a Supreme Court Judge, should be conducted by Judges chosen by the Speaker from a panel appointed for this purpose. We therefore urge the House to amend Standing Order 78A accordingly.

“It is now a matter of history, that, since the Committee commenced its sittings Mr. N. D. M. Samarakoon, retired from office and relinquished his duties as the Chief Justice of Sri Lanka, We therefore feel that the continuation of these proceedings, even after the retirement of Mr. Samarakoon, was both unnecessary and futile.

“However, the submissions on behalf of Mr. Samarakoon are now concluded, that a majority of this Committee wish to express their views on the questions arising from the resolution.

“Mr. Samarakoon himself has not denied having delivered a speech at the Sinnathurai Commercial Tutory on 14th March, 1984, in the course of which the statements, complained of and contained in the resolution, were made.

“We have given careful thought to the speech and its contents as also the circumstances under which it was made. We cannot find anything in the speech and its contents even remotely of being interpreted as proved misbehaviour.

“We are therefore of the view that in the circumstances there exists no bias whatsoever for the removal of the said Mr. Samarakoon.

“The members of the committee unequivocally said the provisions of the Constitution should be referred to the Supreme Court for an interpretation and the resolution must be referred to a panel of judges appointed by the Speaker from among the Judges of the Supreme Court.

The main contention is not whether the Parliament is supreme or not. Parliament is supreme, but the interpretation of the Constitution is a matter which is an exclusive prerogative of the Supreme Court.”COURTESY:THE ISLAND