A moral defeat and a beginning of the end…

16 December 2012 06:30 pm - 3 - {{hitsCtrl.values.hits}}

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By Vijitha Herath

‘All persons are equal before the law and are entitled to the equal protection of the law.’ This is what clause 12 of the Constitution of the Democratic Socialist Republic of Sri Lanka states. Its 13 (3) states ‘Any person charged with an offence shall be entitled to be heard, in person or by an Attorney-at-Law, at a fair trial by a competent court.’ Also, 13 (5) states ‘Every person shall be presumed innocent until he is proved guilty.’ However, there is no difference in the verbal or implicit meanings of these clauses. These clauses that are in the chapter on ‘Fundamental Rights’ in the Constitution, very lucidly describe equality before the law.

These clauses have been included in the 78 Constitution not due to any righteousness that suddenly engulfed J.R. Jayawardene but due to the unavoidable influence of the fundamental rights that have been elevated by sacrifices of hundreds of thousands of masses throughout history.
In the universal declaration of human rights of 1948 clause 7 states ‘All are equal before the law and are entitled without any discrimination to equal protection of the law’, clause 8 states ‘Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law’, clause 10 states ‘Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him, and clause 11 states ‘Everyone charged with a penal offence has the right to be presumed innocent until proved guilty’ indicate that ‘all are equal before the law and are entitled without any discrimination to equal protection of the law.’

" Despite the statement that ‘Every person shall be presumed innocent until he is proved guilty’ the statements of various ministers, government Parliamentarians and the anonymous handbills had already found her guilty and had asked her to leave the position and go home "

However, citizens of Sri Lanka are now being made aware that it is not so or definitely it is not so now. We have reasons to say so. Capitalist politics teaches that the executive, the legislature and the judiciary are the pillars of democracy. It is with the faith that there would be checks and balances among the three branches and they would be instrumental in good governance. As such, the branches have their own powers and the constitution has given the heads of these branches the authority to act independently. Among them are Immunity of President from suit (35 – 1), the restrictions regarding removal of Chief Justice and other Judges (107 – 2), decisions regarding age of retirement of Judges (107 – 5) and Parliament to determine salaries of the Judges of the Supreme Court and of the Court of Appeal and should be paid from the Consolidated Fund (108 – 1).

Accordingly, the Chief Justice, the head of the judiciary which is one of the three pillars has been given such protection from the Constitution as a reflection of the independence of the judiciary. Despite there could be instances where this independence is violated, this is what is expected. The impeachment motion brought by the government against the Chief Justice should be considered under these conditions.

The rage by the authorities on the Chief Justice to challenge the ‘Divi Neguma’ Bill was so severe that the decision was taken to drive away the Chief Justice who attempted to protect the independence of the judiciary. As a result she is being attacked violating all the protection given in the Constitution. With the impeachment process the Chief Justice has been and is being denied not only the legal protection in relation to her position but also her fundamental rights as a citizen of the country.

Despite the statement that ‘Every person shall be presumed innocent until he is proved guilty’ the statements of various ministers, government Parliamentarians and the anonymous handbills had already found her guilty and had asked her to leave the position and go home. The statement that ‘All are equal before the law and are entitled without any discrimination to equal protection of the law’, everyone knows that the committee denied her justice and discriminated her after calling her before the committee. The just request for a considerable period to defend herself was denied to her. Despite the statement that ‘everyone charged with a penal offence has the right to be presumed innocent until proved guilty’, the committee sessions commenced with the majority in the committee that had already decided that she was guilty. This is why she was ridiculed and insulted during the sessions. The aim of the majority in the committee was to make her leave her position and go home.

A pickpocket too would get a considerable time to prove his innocence before a court of law. However, in the impeachment process the Chief Justice did not get the period she asked for. Clause 17 of the Constitution states ‘every person shall be entitled to apply to the Supreme Court in respect of the infringement or imminent infringement, by executive or administrative action, of a fundamental right,” and there were many instances such as the ‘Z’ score issue of A/L candidates where relief was sought from the Supreme Court last year. However, the Chief Justice has no such tribunal she could go to regarding the injustice she has been meted out. If one exists it is the people’s court.

The Speaker, with the ‘order’ given to him by the PSC that made the Chief Justice guilty of three counts of the five that were ‘investigated’, utters is the same that appeared in slogans published by anonymous handbills, mud posters and shouted by hired agitators; the demand for the Chief Justice to resign.( In other words they ask her to save the government from the embarrassment it had found itself.) The government’s wish has been fulfilled. However, the attempt of the government to convince masses that the process was the wish of the masses has failed. As such, what is seen as a victory is a moral defeat for the government. This could be the beginning of the end.

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Comments - 3

SRI kALIE Monday, 17 December 2012 03:03 AM

Yes.. Totalitarianism and its Beginning of the END...!

Impartial Guy Monday, 17 December 2012 04:34 AM

Hon. Vijitha Herath, Please do the needful. According to media report, PSC Chairman has submitted his report of the impeachment trial of CJ conducted by PSC. It is known through media that two PSC members have insulted CJ by using derogatory words during the trial. However, when this was questioned by media reporters from the President, in turn when President clarified with PSC Chairman, Hon. Anura Priyadarshana Yapa, he straght away denied such incident saying that CJ was treated well during the trial. But it is also known through media that two ministers, Hon. Dilan Perera and Wimal Weeravansa who used derogatory words against CJ. You are a part of this PSC and you really knew the truth. The point is, can people of this country accept the report of PSC of which the Chairman a Liar, Liar, and a Damn Liar.

Calistus Jayatilleke Monday, 17 December 2012 09:12 AM

All these clauses in the Constitution are very laudable if one lives in a free, democratic country in words and action but unfortunately, we have to live under jungle laws of stupid politicians. Therefore, what applies more appropriately in this scenario is what George Orwell said in his novel "Animal Farm", i.e. All animals are equal but some are more equal than others!

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A moral defeat and a beginning of the end…

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