If the constitutional process was flawed why did the judiciary as a professional body stand silent for the last thirty years?

Surrounds of Impeachment

Dr D.Chandraratna, Perth, Australia

The impeachment affair seems to have gone beyond the actual wrongdoing on the part of the Chief Justice with many experts spewing nonsensical arguments to hide the substance of the allegations. If the constitutional process was flawed why did the judiciary as a professional body stand silent for the last thirty years? To become suddenly aware of the flaws in the constitution is pitiable plaintive stance on the part of those who are now shouting for the independence of the judiciary.

The constitutional argument was a red herring and if one were to take that argument to its logical conclusion, then people should periodically vote for the judiciary instead of a Parliament giving them the right to govern. No political theorist, constitutional expert would agree that the judiciary has power over and above the instrument (Parliament) which demarcated the judicial domain within which the judiciary shall hold power. Those that it did not confer to the judiciary under Section 9 of Parliamentary powers were powers that pertain to judge the judges in case of wrong doing. They are checks to curb tyrannical exercise of delegated powers. The current CJ has been impeached on matters pertaining to her conduct which will only remove her from the position as been deemed unfit. It is a disciplinary inquiry quite different in tone from a court house. Misconduct and misdemeanor are ethical and moral matters and people decide on these through their elected representatives. Bill Clinton s impeachment was on lack of discretion in matters of exemplary behavior befitting a President. On these matters of ethics therefore it is the people s representative who holds the power to dismiss her from the post and constitutionally it is the practice in democratic countries throughout the world. Whatever we may say about the Bahubootha constitution this section is in keeping with peoples sovereignty, and of course, with room to improve. To lay people and particularly administrative officers of the public service it appears that the CJ had a case to answer and took the dishonorable step of walking out not having the courage to answer to the charges. No upright citizen will see it as exemplary conduct of a senior public officer.

The Chief Justice has erred beyond reasonable doubt and the penalty is more on grounds of ethicality and moral law. Even if we grant her the benefit of technical indiscretion in the withdrawals of money prior to deadlines for declaration of assets, the rest of the charges as listing of court benches to suit personal interests is extraordinarily inane conduct and profiting indirectly from litigants is inexcusable. Recently in Perth, Western Australia when a lawyer was tried for alleged murder of his wife the high court judge was imported from NSW to hear the lawyers case as he was known to the legal fraternity in Perth. Such is the manner in which the independence of the judiciary is protected. Sri Lanka these days has little to talk of the independence of the judiciary. The profession has such a bad reputation in the country the present circus run from a monkey cage will only besmirch it further.

Everyone is bemused by the affair for the manner in which it is used by the groups who find the Rajapaksa regime anathema but spinelessly helpless to bring the regime down by democratic means. A sober analysis reveals the underbelly of the protest. The attorneys are incapable of rousing any groups let alone their own clients to rally round them. The delaying tactics of lawyers like their thirst for dates , income tax evasionary charges, exploitation of clients who are least able to pay and other collusion tactics have tarnished the sanctity of the court to which many of us can attest though personal experience. Talking of an independent judiciary may soothe its soul but reality speaks otherwise. Even the manner in which the union of lawyers contravened ordinary meeting procedures to obtain unanimity beggars belief. Has the President of the BASL out of his mind to discard simple rules of associations known even to Gam Sabha presidents? That he is the President of the Lawyers Union is beyond belief. A completely bankrupt opposition which is unlikely to win through the ballot in the foreseeable future (statistical probability calculated to one standard deviation is about 30 years) has sunk to its lowest to make capital of the CJ stunt to bring down a regime change. Arab springs in Sri Lanka will only garner more popular support for Rajapaksa brotherhood. One is tempted to ask the BASL if CJ can run the bench with a husband charged for bribery and corruption what is wrong with a brotherhood which is functioning so efficiently. The groups that are fuming at the core now seem coming out in support of an official who could not understand the simple premise of conflicts of interest and acting ethically.

It appears the group championing impeachment now is the same brigade who opposed the humanitarian war. They have a new found strategy to write to their donor groups about the terrible breakdown in law and order and slavishly ask for international probes, white supremacist panels to sit in judgment over the back minstrels. The opposition leader who is the ultimate lackey in colonial sheepishness and inferiority is demanding white people to sort out problems that he has partly engineered. Mr. Wickremasighe ought to realize that the time of privy councils and tail coats are emblematic of inferiority and nothing else. There is no better way of disgracing ones own kind than by appealing to outside intelligence and impartiality.

It is obvious the same groups who were vociferously supporting the erstwhile LTTE are on the prowl again. The websites that are for the benefit of foreigners are rife with ridiculing Rajapaksa as the guy from the hinterland who is without the statesmanship nuance available only to the urban elites. It is about time that the self acclaimed elites from Colombo are reminded that Rajapaksa regime is going to outlast most of these critics. The hilarity of these moves is for the unprincipled TNA and NGO cabal to come back on the trail to oppose the President because they cannot stomach the fact that he defeated terrorism for ever. With the security measures which will never be dismantled the guns are silenced for ever and no more will the Tamil people suffer in the future. There is no country in the world which is under surveillance from the West like Sri Lanka for not dancing to their tune. The lack of a fertile ground to earn their keep has irked the NGO and human rights activists who are ever willing to live off blood money. They unashamedly put up Fonseka and failed. Poor Fonseka is in the bin. Tried Ven Sobitha but he has backtracked. They have not yet attempted to foist a white foreigner to contest Rajapaksa at the next Presidential election as the common candidate, but such a move is not out of the ambit of their inanity.