Letter to the Editor:

People's power rests with the Legislature

Independence of judiciary has been a catchy and very attractive slogan for most of the NGO activists and bankrupt politicians who cannot win the confidence of the masses. The recent impeachment of Dr. Mrs. Shirani Bandaranayake had been done in keeping with the Constitution and the Government at no stage stepped out of its purview and powers given by the Constitution.

We cannot understand the undue worry by a couple of Western countries and a few international organisations as the impeachment of Dr. Mrs. Bandaranayake was entirely a constitutional and internal matter. If the Government had overstepped its boundaries and violated the Constitution, then there is some fairness in international organisations voicing in support of Dr. Mrs. Bandaranayake.

But now, it seems that a couple of countries and a few international organisations seem to be approving corrupt deals of a lady who had conducted herself that is unbecoming of a person holding the post of Chief Justice? Do these countries and INGOs who shed crocodile tears over the impeachment of Dr. Mrs. Bandaranayake expect the Government to turn a blind eye on any wrong doing of a judge in the name of independence of the Judiciary?

Even the Executive President, considered as the most powerful position in the 1978 Constitution introduced during the J.R. Jayewardene regime, could be impeached through a motion in the Parliament.

The Judiciary cannot expect the Legislature to turn a Nelsonian eye against corrupt judges in the Superior Courts.

If the countries and INGOs feel that the impeachment of Dr. Mrs. Bandaranayake is unreasonable, they should first allow judges in their countries to conduct in a similar manner in which the former Chief Justice conducted herself.

If so, judges in those countries too should be allowed to have undeclared foreign currency accounts running into millions of dollars, undeclared 20 bank accounts maintained in various banks, obtain cash discounts from companies against which Cases are being heard before them, meddle with composition of Benches in cases against their spouses and to evade income tax.

If not, these countries must point out whether there is any other constitutional method of punishing judges in the Supreme Court and the Court of Appeal in Sri Lanka.

The charges levelled against Dr. Mrs. Bandaranayake were of an extremely serious nature. There is no point in challenging a constitutional process such as an impeachment motion against the Chief Justice, or even against the Executive for that matter.

If the Executive President, who is directly elected by the people, too could be impeached by a motion in Parliament, we fail to see the logic as to why a few hundred lawyers and their goons should make such a big hue and cry over an impeachment motion against a Chief Justice who had been found guilty of serious charges.

The Judiciary is supreme when it comes to judgements within its legal framework. But in this instance, Parliament is supreme as the members of the Legislature have every constitutional right to impeach the Executive President or the Chief Justice if there are charges against them. The people's power should be supreme at all times.

On the other hand, Dr. Mrs. Bandaranayake could not cover up her sins under the guise of the independence of the Judiciary, which had nothing to do with the impeachment she faced due to her conduct that is unbecoming for the Chief Justice.

She not only disgraced that highly respected position but also attempted to make use of the Supreme Court and the Court of Appeal which were under her purview to stop legitimate and constitutional action taken against by the Parliament.

It was a highly unethical manner and a clear instance of overstepping her boundaries.

Unfortunately none of those black-cloaked men who disgraced the Judiciary by making use of the Hulftsdorp for unruly protests, had courage to point out that Dr. Mrs. Bandaranayake is abusing her powers to protect herself through the Judiciary under her wings. That itself is an instance that affected the independence of the Judiciary.

In contrast, the Government took the right decision to impeach a corrupt judge who had brought disrepute to the Judiciary and protect the independence of the Judiciary.

How could the independence of the Judiciary be protected when the Supreme Court is headed by a person who had obtained a cash discount of a company against which a case was being heard before her?

To make it even more serious, Dr. Mrs. Bandaranayake had removed Justice Shirani Thillakawardena from the Bench which heard the case against Ceylinco Group. She had purchased a luxury apartment from Trillium Residencies, a Ceylinco Group company, under the attorney power given by her sister. Isn't that a direct conflict of interest and an instance that affects the independence of the Judiciary?

If these INGOs and countries in the West are extremely worried about the independence of the Judiciary in Sri Lanka, they should have issued statements condemning such actions of Dr. Mrs. Bandaranayake. Instead of voicing against such instances from which the independence of the Judiciary had been affected, certain countries and INGOs issue statements on constitutional move to remove a corrupt judge. Does that mean that the meaning of the independence of the Judiciary could be changed to suit personal agendas?

Do the senior most judges in the country, who do not come under the purview of the Judicial Services Commission (JSC), have immunity over any improper conduct that is unbecoming of such a highly respected position? Is that those who voice against the impeachment mean?

All judges other than those who serve in the Supreme Court and the Court of Appeal come under the purview of the JSC, which is empowered to take disciplinary action on all matters pertaining to their conduct. However, the JSC does not have any power to take similar action against the Chief Justice, Chairman of the Court of Appeal and the judges of the Supreme Court and the Court of Appeal.

Action against these senior most and highly respected persons in the Judiciary could only be taken through an impeachment motion in the country's legislature - the Parliament. There is no other provision whatsoever in the Constitution to remove a judge of the Supreme Court and the Court of Appeal even if they conduct themselves in a manner that is unbecoming for a person holding such a high profile position.

Moreover, impeachments against senior-most judges in Sri Lanka and the world over are nothing new and there have been such instances here. There had been three impeachment motions against two previous Chief Justices, but nobody made any hue and cry as those were action taken by the country's supreme most Parliament, in keeping with the country's Constitution.

Then, how come a different interpretation was dished out when it came to Dr. Mrs. Bandaranayake, who happens to be the then Chief Justice? Her predecessor, Sarath N. Silva had said that bringing an impeachment motion against a judge in the Supreme Court or the Court of Appeal is a provision granted to the Legislature by the Constitution. Can there be any exception for Dr. Mrs. Bandaranayake under the same Constitution, under which there had been three impeachment motions against two previous Chief Justices - CJ Neville Samarakoon and Sarath N. Silva? While paying our highest respect to the Judiciary and all judges, including those who serve in the Supreme Court and the Court of Appeal, we wish to know whether there could be an exception for an individual. Let the countries and INGOs which issued statements against the impeachment answer it!Be it the Executive, Legislature or the Judiciary, all of them should keep one thing in mind while respecting the Constitution - that the people's power is supreme and is the ultimate decider. The Judiciary does not have super powers to undermine the power of the people who elect the Members of the Legislature!