Yesterday (6th December) Chief Justice Shirani Bandaranayake and her legal team walked away from the PSC inquiry after clearly stating that she had no faith in it. Subsequently, she has written to the Speaker Chamal Rajapaksa through her lawyers and clearly set out that the PSC does not qualify in terms of the constitutional requirements to conduct an inquiry for the removal of a Chief Justice as a genuine tribunal. Such a tribunal must be an impartial judicial body, as her lawyers have clearly said. They have annexed the proposed constitution from 2000, in which it is stated that an inquiry into the removal of a Chief Justice requires an inquiry by a panel of judges from the judiciary of commonwealth countries.
Today (December 07) the opposition members also walked away from the PSC after expressing their condemnation of the PSC inquiry and also protesting against the manner in which the Chief Justice was treated by some government members of the PSC, who clearly went out of their way to insult her. After walking out of inquiry the opposition members held a press conference and expressed their reasons withdrawing from the inquiry. We reproduce below the full text of the letter issued by the four opposition members, which explains their position:
We the undersigned Members of the Select Committee wish to place on record the following matters:
In the course of the deliberations of the Committee, the following matters had been raised by us:
• The absence of a clear direction regarding the procedure to be followed by the Select Committee.
• Whether documents were to be made available to the Chief Justice and her lawyers.
• The standard of proof which would be required.
• The need to arrive at a definition of “misbehavior”.
• Whether sufficient time would be made available to the Chief Justice and her lawyers to study the documents.
We have also requested a direction whether the Chief Justice and her lawyers would be given an opportunity to cross-examine the several complainants who had made the charges against her.
It was also our position that if and only if a prima facie case had first been made out against the Chief Justice that she can be asked to respond.
None of these matters have been addressed by your Committee.
We also find that we are groping in the dark and proceeding on an ad hoc basis.
In addition we wish to note that over 300 documents were received by the Committee and handed over to the Members only on 5th December, 2012 and those were handed over to the Chief Justice only at 4.30 pm on 6th December, 2012.
We understand that there are several more documents to be produced.
The lawyers appearing for the Chief Justice asked for time to study the documents. This was refused.
Apart from the Chief Justice, we the Members of the Select Committee ourselves will need sufficient time to study these documents.
Furthermore the Chief Justice had not been provided with either a List of Documents or a List of Witnesses.
The sequence of events can be set down as follows:
When the motion was filed, there were no documents provided with it
The Inquiry started on 14th November 2012 without either a list of witnesses or a list of documents.
After three sittings the Secretary General was instructed to call for the documents from the Banks and other institutions.
What is obvious here is that when the Impeachment Motion was filed none of the signatories could have seen any of the documents.
It is regrettable that the Committee is ignoring salient provisions of the law and requirements of Natural Justice in the conduct of this Inquiry.
• Article 12(1) of the Constitution which guarantees equality and equal protection of the Law and Article 13(5) the presumption of innocence.
• Article 7 of the Human Rights Declaration guaranteeing equality before the law.
• Item 17 and 20 of the United Nations Basic Principles of the Independence of the Judiciary which guarantees to every judge the right to a fair hearing and an independent review of removal proceedings.
It is also a matter of note that the Chief Justice has not been afforded the courtesies and privileges due to her office.
We have made our position clear regarding these matters. It is the duty of the Select Committee to maintain the highest standards of fairness in conducting this inquiry.
We also regrettably note that during these proceedings, the treatment meted out to the Chief Justice was insulting and intimidatory and the remarks made were clearly indicative of preconceived findings of guilt.
We are therefore of the view that the Committee should, before proceeding any further, lay down the procedure that the Committee intends to follow in this inquiry.
Give adequate time to both the Members of the Committee and the Chief Justice and her lawyers to study and review the documents that had been tabled.
Afford the Chief Justice privileges necessary to uphold the dignity the Office of the Chief Justice while attending proceedings of the Committee.
If these matters are attended to, we feel that the Chief Justice should be invited to continue her participation in these proceedings.
However if the Committee is not agreeable to these proposals of ours we will be compelled to withdraw from the Committee.
On the 6th of December the PSC informed the Chief Justice that there will be no witnesses and that therefore there will be no opportunity to crossexamine the witnesses. PSC members went on to say that this is not a court that not to expect the proceedings to be conducted as in court. The PSC also required the Chief Justice to answer to some thousand odd papers of documents by the next day.
However, after the Chief Justice and her lawyers walked away from the inquiry, the PSC has hurriedly gathered and is continuing at a terrific speed to call for some witnesses, knowing very well that they will now not be subjected to cross examination.
The government, in a truly shameless manner, are trying to utilize the objections taken by the Chief Justice and her legal team on a principled basis. Their attempt is to conduct a fake inquiry and to make a hurried report to the parliament. It is probable that the government will not even honour the one month prescribed time period after the inquiry, during which the resolution against Chief Justice is to be placed before the parliament for her removal.
The constitutional requirement and universally accepted international norms do not matter in any way to the government, which is in a hurry not only to remove the Chief Justice, but to completely end the independence of judiciary quickly as possible.
In this the government will seek the support of one or more of the judges of Supreme Court who, for their personal ambitions, may be willing to sacrifice the independence of judiciary and the future of Sri Lanka as a democracy.
As the AHRC stated yesterday (6th December) the position taken by the Chief Justice and her legal team is the only principled position that any judge of the superior court should take under the present circumstances.
The only valid inquiry into superior court judges is one which proceeds with a judicial inquiry by qualified judicial officers and is conducted with transparency.
The government is moving rapidly to make a cheap victory against the judiciary, and also with the view to defeat the judicial inquiry that is being held by the Supreme Court into the reference made by the Court of Appeal.
Whatever temporary victory the government may wish for, they are no doubt walking into the greatest abyss of lawlessness that the country has ever plunged into. It is only those who do not have insight into history who would move in this manner, bringing peril to the nation as well as to themselves.
In the coming few days, Sri Lanka may face the darkest days of history and the greatest peril ever faced by democracy and the rule of law in Sri Lanka. The tradition of the independence of judiciary, lasting over 200 years, will probably be lost in the coming few days.
It is rare that a small group of people can push the entire nation into peril, but it is happening now. Mahanayakes have protested, the United Nation has protested, leading countries and bodies in the international community, such as USA and the European Union, have expressed their concern and, above all, almost every sensitive person who is informed about the present situation of the country has oppose this PSC inquiry.
It is the people themselves who will pay the greatest price for the foolish manner in which the government is pursuing this issue. It is also up to the people to find their own way to protect their liberty and come out of the peril that the government is throwing them into.
