By Hafeel Farisz
Q:Why exactly do you oppose the current impeachment motion?
It’s not a question of opposing a motion as such, but it’s a question of opposing a move to impeach the Chief Justice from becoming a political circus and the procedures that are used in this circus. There must be fair play and to my mind there is no fair play at all in this entire process.
Whether she is guilty or innocent of these charges I don’t know, but that is to be proved by those bringing these allegations at a fair trial or inquiry after giving her an opportunity to cross examine witnesses, leading such evidence as she requires, and of opposing the case against her.
Indeed from various statements that were made before the impeachment motion was brought I have little doubt and from the information I received from those I term “impeccable sources”, the impeachment motion was signed blank and the charges came in later. So the idea of impeaching her did not stem from the charges, the charges came after the decision to impeach her was taken. They decided to impeach her and throw her. After this they went about finding charges which I think is completely wrong. The whole idea of an impeachment is that the motion must stem from the charges.
Then again there is another matter. That is no government likes an independent judiciary. Every party in opposition extols the need for an independent judiciary but once in power they want to destroy it. Look at the UNP, they sacked 8 Supreme Court judges and supplanted them with those they believed were politically partial towards them. Earlier the SLFP appointed Jaya Pathirana an ex MP as a Supreme Court judge, then the UNP again appointed Neville Samarakone for wrong reasons. I think he was an excellent appointment but the reasons for appointing him were wrong. The reason was that J.R Jayewardene with all his brilliance thought that Neville Samarakone having been JR’s lawyer would be partial to him.
Anyone who thought that Samarakone would be partial must get his head examined. I mean J.R was totally mad in having had that view. When they found that Neville Samarakone was a straight man who wouldn’t bow to pressure they suddenly wanted to fire him. There are many examples like this but basically this need to control the judiciary is common with all parties that come into power. This craze when all parties come into power is difficult to imagine but exists and this in itself has been the bane of our country.
Q:But one thing that those who brought the motion and who have been a part of the process adopted thereafter, claim and continue to extol is the fact that the entire process is constitutional. That they are acting within the framework provided for in the constitution. Do you not agree with this view?
The constitution does not say that anybody must be unfair towards another. Indeed article 107 (3) which provides for the impeachment of a judge very specifically states the burden of proof is firmly on those making the allegations. Whereas the standing order 78(A) says that evidence must be led in disproof. But disproof necessarily implies proof. So if there is prima facie evidence one can pardon the use of the word disproof, but then evidence must be read, she should have been given the opportunity of defending herself , she must have had the opportunity to cross examine witnesses that were brought against her, she must be given the opportunity of studying the document against her. Instead all of a sudden she has been given over a thousand pages of documents according to the reports that I hear, and told to come the next day with a defence. This is humanly impossible and I can say this as a lawyer with close to 45 years standing.
Q:Are you saying this is unconstitutional or are you against the procedure adopted?
Shall I put it this way; it is constitutional for parliament to impeach a Chief Justice for “proved” misbehavior, misconduct or incapacity. But the burden of proof is on those alleging. There is a well-known maxim of law “he who affirms must prove”. Even the constitution states that every person is presumed until proven guilty.
The constitution does not speak of an “ accused” but rather every “ person”. So what applies to an ordinary citizen must apply to the Chief Justice. The Chief Justice can’t be treated in this shoddy manner. Also does the constitution have any provision saying that the members of the PSC could insult the Chief Justice? They have all ganged up together and hurled insults at her and treated her in an utterly obnoxious fashion. I don’t think any person with any kind of breeding could descend to that level. So this shows the type of persons they had selected to judge the highest in the Judiciary of our country. Let’s not forget that standing order 78(A) states the Select Committee should come to some “findings”. If they come to findings of guilt then you can publish it, but not otherwise. So coming to “findings” are extra judicial powers. I mean I don’t come to “findings”, I form opinions. But “findings” are definitely a judicial act. So here there has been judicial power conferred on parliamentarians.
And as you said yes this is constitutional, it has consistently said that the means of impeaching a judge of the superior court is by means of resolutions passed by the Parliament. But let us not forget this. When these provisions were initially enacted parliament comprised those whom the people wanted. But now it’s not the case. Those in parliament are those the party leader wants. So those in parliament owe their allegiance to the party leader and not to the people. The preferences of the people are marked to those selected by the party leader. If the leader says jump these MP’s of ours don’t ask “why sir?” they ask “how high?”.
This is the problem in our country. We have a system of total sycophancy. Sycophancy rules in this country. Look at this select committee, who appoints people like that to a select committee to look into the conduct of a Chief Justice?. They are afraid even to debate the manner in which this inquiry was conducted. If this inquiry was properly conducted why do they fear a debate about those matters? Fairness and courtesy are two essential things and both have been lacking in this.
Q:Well Mr. Gunasekara, this procedure was in place since the time of President J.R. Jayewardene and subsequently there were attempts to use this procedure. Why didn’t you, and many who are now opposed to this procedure raise a voice at that time? Why has this all erupted only during this present process?
Well speaking for myself I’m no jurist. Actually the law bores me stiff. I study the law when there is a case before me. I study the law involved in-depth at times when a case comes up. That is what I did here. Indeed the first time I saw standing order 78(A) after being an MP for 5 years was when this case was brought up. This may be wrong but it’s a fact. No lawyer knows all the law in the country. You study the law when a case comes up. So I looked at article 78(A) and saw what a horrible thing it was.
You said it was not raised, but I later learnt that Mr. Nadesan QC appearing for Justice Samarakone had raised this very question before the PSC. And that select committee unlike the present one had those who Premadasa termed ‘Ugath Modayo” people such as Lalith Athulathmudali. And even they didn’t think much of these standing orders. So this was not something that was not raised. Nadesan QC one of the greatest lawyers I have come across in my life raised it.
Q:One thing that you campaigned for is the fact that you wanted the lawyers of the country to form a collective of some sort against this process. What role do you actually think the lawyers could play?
Well, my suggestion to the Bar Association was, the BASL should call on all members not to accept the appointment of a Chief Justice. This is because of the utterly shabby and shoddy way the current Chief Justice was treated.
I can’t visualize any person with a trace of self-respect accepting that appointment and I don’t think we should have as Chief Justice any person who doesn’t have a trace of self-respect.
It is my firm conviction that if there is anyone who accepts appointment of a Chief Justice after seeing the manner in which they are trying to bungle out the current Chief Justice is a person who has not heard of self-respect, a person who doesn’t know the meaning of the word self-respect, and a person who doesn’t have an ounce of self-respect anywhere in his being. Only such a person can accept this appointment. I don’t think anyone should accept as Chief Justice of this country someone who doesn’t have the very basic tenets of integrity and self-respect.
Q:Isn’t this call you are making a very idealistic or rather utopian one? after all lawyers subsist from the judiciary and a call for them to defy the appointment of a Chief Justice, is a little too much to ask for, don’t you think? Especially with regard to the Sri Lankan lawyers in this present context do you honestly think that they would take such a drastic step that would affect their livelihood?
Well, some will and some won’t. I won’t say yes or no to your assessment of our lawyers and for what they depend on for their livelihood. There are honest lawyers. I do not agree that anybody should be subservient to anybody else. Even with the judiciary, it should command respect and people must give respect where it is commanded. But most certainly I don’t agree that the lawyers must be subservient to the judiciary. No lawyer, no human being worthy of the name must be subservient to anybody else.
And my proposal was not only to call on the members to defy that appointment but I believe it should extend to the Bar Association calling upon its members not to appear before the new Chief Justice.
The fact that they will fire the current Chief Justice is a foregone conclusion, now the question is whether there will be someone willing to take up this position, and I suppose somebody will.
You always get the climber right? The one who is looking for so called prestige, power, privilege and that sort of thing. So somebody will accept it. But to my mind anyone who accepts that post after this will be an utterly contemptible skunk.
Q:Will we not see S.L. Gunasekara appear before the Supreme Court in the event a new CJ is appointed?
I will make it clear to my clients that I will not appear before the new Chief Justice. Because you see unlike in the Court of Appeal where cases are listed before a bench and that bench continues to hear the case, at the Supreme Court you know the bench only the day before. So I will tell my clients that if the case is listed before the Chief Justice I will not appear. I have no objection to appearing before any other judge of the Supreme Court but I have a problem appearing before a person without any trace of self-respect.
Q:There have been many instances of political appointments in the judiciary that you pointed out. Therefore isn’t what you and many others have enumerated -that the judiciary is where the powerless have to go in order to seek justice- in actual fact a fallacy of some sort? The fact that there is a chance of the judiciary being biased or politically motivated in some sort negates the fact that this is where we should seek justice from?
No no -where else can the people go to? If I’m oppressed by the government authority where can I go except the courts? If there is a person who is rich who oppresses me where can I go to except the courts? The judiciary should be like Caeser’s wife. Unfortunately it isn’t. But the thing is it has to rectify these faults within the institution itself. And it can be done.
Q:Getting back to the focal point Mr. Gunasekara, according to what you are saying, do you not think that the Chief Justice is in fact above the law? If the Chief Justice has committed an offence what should have been done?
If she has committed wrong, give her a fair inquiry. The burden of proof should be on those alleging. Give her the opportunity to lead evidence and cross examine witnesses and follow a process that is fair. Here she was told there would be no oral evidence and when she walks out they conduct oral evidence. How were these witnesses summoned? Were they summoned earlier? If so was the select committee lying in stating that no oral evidence would be called or did they suddenly decide that ‘now since she’s gone let’s call them’. And who is the person who will come before a PSC and give evidence against an incumbent Chief Justice on telephone call, what kind of person is that?
Q:On a political angle Mr. Gunaskera, you were a nationalist politician
I still am a nationalist.
Q:Yes and you represented the Sihala Urumaya, therefore if you look at this process in the eyes of a politician and not in a lawyer’s garb what would you think?
This is a question of fairplay, and I don’t see why a politician can’t be fair.
Q:Again, this I believe is a nationalistic chant used by those in the government which you were a supporter of, where they say that elements are using the judiciary to destabilise the country?
I think this is a classic case of the Sinhalese expression “ Illang Parippu Kewa”. I don’t think the government had to do this or behave in this shoddy manner. So once they behave in this shoddy manner and then when it is criticized they say that this is to help the tigers or rubbish of that sort. That is absolute nonsense.
Also I have to say this, there are various MPs who say that parliament is not bound by court and that parliament is sovereign. Where does the constitution say so? That’s rubbish. Parliament is not sovereign or supreme. The people are sovereign though I’m yet to meet a citizen of this country who feels sovereign. But according to the constitution the people are sovereign and not the jokers in parliament.
Q:You were a supporter of this government and the war against the LTTE. But apart from ending the war what other positives do you see in this government?
Well, I supported the government because of the policy with regard to the LTTE. In 2005 before the elections I said publicly that both Mahinda Rajapaksa and Ranil Wickremasinghe are utterly unsuitable to the post of president. But I said if Ranil wins “we will lose the country” and if Mahinda wins “we may lose the country”. So we had no choice and I campaigned for Mahinda Rajapaksa. And he exceeded all expectations by actually defeating the LTTE, restoring peace in our country and telling those external busy bodies who wanted to interfere in our country where to get off.
But of course since then there has been a downward slide. I think Mahinda didn’t seize the moment. He had an opportunity that no leader before him had. He had the whole country behind him the Sinhalese, Tamils and Muslims were all behind him. He had the opportunity of being a statesman at the time but he made the mistake of continuing to be a politician.
Q: Why did you never apply for appointment as a President’s Counsel?
Well there are several reasons; one thing is I’m not a collector of trinkets and goblets. Also in my view an honour is something that you can’t apply for and applying for an honour is rubbish. Thirdly an honour can only be given by the honourable and therefore I have never applied for it.