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PSC did not find CJ guilty Deputy Speaker

5 January 2013 06:24 pm - 3     - {{hitsCtrl.values.hits}}

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Deputy speaker, Attorney- at- Law Chandima Weerakkody speaks to Daily Mirror after the determination of the Supreme Court to the effect that the PSC was unconstitutional. Weerakkody reiterates the government’s commitment to an ‘ independent and pure’ judiciary and states that the government does not wish to see the country descend to anarchy. In this wide ranging interview which can be viewed in full on www.dailymirror.lk., Werakkody defends the PSC process and states that the PSC was only mandated to investigate and report and it was not mandated to make a ‘finding of guilt’.  Following are excerpts of the interview in verbatim

Q. What is the next process in this whole impeachment saga, on the heels of the Supreme Court’s determination?
Well I’m not aware of the Supreme Court’s order; I believe it’s not a determination. We have not been served with the order yet. When this matter was filed, notice was issued on the members of PSC and the speaker and at that point Speaker Chamal Rajapaksa with reference to the historic order made by the late Anura Bandaranaike very firmly and precisely decided that the impeachment process was purely parliamentary and third party interference was not welcome. On that basis the speaker said he and the members of the committee appointed by him would not participate in such case. The order was announced and a copy was sent to the SC on a request by MPs. He also said the order would be binding on future matters relating to the impeachment process. On that basis a decision was taken, of course as per Article 4 (C) (1) the power of parliament is not delegated to the judiciary to exercise. Parliament directly exercises powers of parliament. And in this instance the power of the removal of judges is a power entrusted in Parliament by Article 107(3). It is very clear that Parliament should conduct these proceedings as provided by law or standing orders. So as soon as an impeachment is submitted to the Speaker it is mandatory for him to appoint a select committee. The mandate of the committee is to investigate into the misconduct or incapacity and report.

Q. This has been the story that the government has been saying all along. But on Thursday everything changed because the Supreme Court made a determination to the effect that standing order 78A was not in line with the Constitution, now the SC in its judgment clearly …
Which I haven’t seen

Q. But it points out the ambit of a standing order and what ‘law’ denotes. Given the fact that the SC has the “sole and exclusive jurisdiction to interpret the constitution” given by the constitution, accepted both by speaker Chamal Rajapaksa and Speaker Anura Bandaranaike..
Yes  certainly

Q.Do you agree with the Supreme Court’s interpretation of the Constitution?
Well it’s very clear. What we said was that the judicial power of Parliament was entrusted in the judiciary to exercise as per Article 4. It is very clear if you may look at Article 4 of the Constitution, that the judicial power pertaining to the power of Parliament is not delegated but retained by Parliament. So this issue falls within the “Power of parliament”.Therefore when you say to interpret, I believe and that has been the opinion- the Hon. Speaker and the Late Hon. Speaker have studied this constitution and given their orders. So their position has been right through that it is only powers that have been delegated by the Parliament to the judiciary which can be exercised. So certainly it includes power of interpretation as well.
Q. So will you be bound by it?
No. Since that is not a power that has been delegated by parliament to the judiciary to exercise, our position has been that it is not a matter for the judiciary to interpret or get involved in this process. This process is a process which is exclusively for parliament to exercise.

Q. Given the fact that you’re a lawyer and the Deputy Speaker – who decides  the ambit of the term ‘Power of Parliament’ ?
I’m not here to give my opinion as an Attorney- at- Law; I’m here to talk on behalf of the Speaker and Parliament discharging my official responsibilities. So Power of Parliament- it’s the Parliament that has delegated its authority, so the authority given as per 107 to attend to removal of judges itself  is a power of parliament, it is a power to be exercised by Parliament. That is understood.

Q. Deputy Speaker,  what you are saying is that these fall within the ambit of Parliamentary power which can’t be questioned?
Yes

Q. Hypothetically, if you pass a standing order or law to the effect that an MP who walks in late to Parliament will be hanged, cannot the court make a decision against it?
Exactly. You have come to the correct point. In a country there has to be checks and balances, that is exactly why removal of members of Parliament is not with Parliament. It is with the judiciary. There has to be checks and balances. Under privileges and powers of Parliament which is enumerated in the act, it states as to what the privileges of the members are. Just because you are  a Member of Parliament you can’t stay away from criminal proceedings.

Q. You didn’t answer my question. If Parliament decides by standing orders that an MP who gets late should be hanged, which essentialy is a ‘Parliamentary decision’, not an individual’s..
That’s what I said, to decide whether to hang or not is within the penal code. What a privilege is, is explained in the Parliamentary powers & Privileges Act and what the standing orders can do are explained. Parliament can’t behave the way it wants. In this instance, as to the removal of judges, it is stipulated in 107 as to what can be done and is elaborated to a great extent in the standing orders. Now the Supreme Court has the right to remove an Attorney-at-Law, what does it say- all it does is it gives authority, similiarly the JSC  has the authority to do so with regard to judicial officers.

Q. Deputy Speaker, Parliament’s authority to remove a judge has not been contested. What has been contested here - if you read the judgment Deptuy Speaker - is that in line with the spirit of the Constitution to which judicial independence is paramount , procedure pertaining to ‘finding of guilt’ has to be derived by law and not by standing order?
Well I haven’t been privileged to have received a copy of the judgment so I’m not in a position to go into such. But I can tell you that the authority given to the special select committee is not to find someone guilty or not. That is merely to investigate into allegations of misconduct, misbehavior or incapacity and to report to Parliament.

Q. But 107(3) speaks of “ proven”..
This is where you go wrong. The task of the Committee is to investigate and report. Now it is reported to the Parliament. You might have seen the report; everything that transpired within the Committee is on record. Then a one month period is given which will expire on Januray 8. On a date decided thereafter by party leaders, this report will have to be debated. So it will be debated in Parliament by the representatives of the people. They will debate this. And at the end of the debate the members sitting as the jury will come to a finding. That  is the point at which it will be decided if the judge concerned is guilty or not. I don’t know what the judgment says but as I hear from what you say there is some…… how do I say it? A misconceived version.

Q. Then why did Minister Anura Yapa together with his members come out and say  they found her guilty of three offences?
I don’t know the terminology used

Q.No. They very clearly used the word “guilty”
Could be, but I wasn’t there to comment on it. But it is very clear the mandate given to the special Select Committee by the speaker is to investigate and report to the Parliament.

Q. So have they exceeded their mandate?
No, no… they can’t. What they can do is they can investigate and report. When reporting- if you take a domestic inquiry where a labourer is charged, the officer holding such an inquiry also submits such a report to the board. It’s only a report, there it is up to him to write whether he’s ( the labourer) guilty or not. I mean these are the practices of inquiry and I was referring to the lowest level. Here also that’s the case.

Q. So the PSC didn’t have mandate to find her guilty?
No, very clearly not. The PSC and standing orders we have never considered as law. Standing orders are not law. Standing orders, if you may look at and refer the Parliamentary Powers and Privileges Act it states very clearly that if there is a lacuna or inconsistency, we will fall back on the House of Commons and follow. We have a very clear fall-back position, so the House of Common is the mother parliament in our system. But even there, there have been no instances of the judiciary summoning or taking action against the Parliament, or getting involved in the impeachment process of judicial officers. So that has been the position we have been following. Even in the US there was an impeachment in 1993 against Justice Nixon. He sought intervention of the SC over the impeachment.  Even then it was clearly held that it’s a matter for parliament. The latest impeachment in the Philippines where Chief Justice Korona was removed - even he sought relief from the Supreme Court. There the Committee was headed by the President of the senate and he said that was purely a matter for the parliament and Justice Korona was removed.

Q. Deputy Speaker you brought out the House of Commons but there is a very big difference with our system.  Britain has no written constitution whereas we do and in it, supremacy is vested in the people. So there clearly is no relationship to what the House of Commons does and the current process right?
Well one may argue. You may hold your opinion and even I may hold my personal opinion. But what is supreme to our country is the Constitution of our country and the laws that are written. This is not Great Britain, so long as you are a Sri Lankan citizen we are governed by the Constitution and the acts of Parliament that are passed. We are bound by oath to protect the constitution.

Q. Then who according to you can interpret the constitution?
It is the Supreme Court, to the extent that Parliament has delegated to the judiciary. It is very clear. Article 4 says judicial power of the Parliament is delegated through the judiciary to exercise. Only to that extent it is written. Like you said unlike in the UK, this is written.

Q. Sir, I just want to get this cleared. Who will decide what the boundaries of ‘Power of Parliament’ are?
It is the parliament. Our constitution is supreme and inalienable rights are with the people. But because everyone can’t get involved with the law-making process we are elected to take decisions on behalf of the people for a specific period. So within that period if we don’t discharge our duties to the expectations of the people they can take a decision. In some other countries like the US the people have the power to recall their members. Here we don’t have that system; if you are elected you hold office until the end of the term. But it is supreme; the Parliament is like an investment bank which has led to controversy now.

Q: Deputy Speaker, why didn’t you give the Chief Justice a fair hearing?
A fair hearing was given

Q:I don’t think anyone disputes the fact that if she has committed impeachable offences she should be impeached. The dispute here is in the manner this entire process was carried out, the hurry and the fact that the charges stemmed from the decision to impeach her, isn’t that really the root of this whole issue?
Various people can look at this at various angles; even S.L Gunaskeara a senior lawyer clearly said that she is not ‘lily white’. The issue is when the Speaker receives a motion its mandatory that he appoints a select committee. So when the committee is appointed as per the provisions of the constitution, the committee has to submit its report within one month.

Q. They can ask for an extension of one month?
Yes, they can request but Parliament has to approve. The judges of the COA and SC.. from the day they entered into law school they would know… that if ‘I’m charged as a judge the matter would have to be concluded within one month’ unless time is permitted by Parliament. Now knowing that -she is present with her lawyers, she asks for time to file a statement of defence and 22 days are given, being well aware of the time period. On the first day she comes with her lawyers - that is allowed. Then on the second day she comes with an increased number of lawyers and that is also allowed. The third day also she comes and then they say....  now I was also a legal practitioner… the junior most lawyer in any court would know that when they feel that the judge sitting is detrimental to the interest of his client the first thing that any legal professional would do is to say is “ Your Honour please record my objection” . That is the practice even anywhere else in the world.
Now here a senior-most president’s counsel appears and if such a remark is cast… .  I have also been in practice for close to 20 years except for these two years that I’m the Deputy Speaker… the first thing should be to record. Record that and object. But nothing has happened. It’s very strange. That’s the first thing I did when I got the book to check for such. Then a week later a letter is sent. And also supposing she felt uncomfortable being a lady, she had the right to retain the lawyers and the lawyers could have moved for time. Without moving for time and when the party concerned is not there- you may look at Civil or Criminal procedure – ex parte procedure has to terminate forthwith.

Q. Deputy Speaker, the fact is they had asked for 5 weeks to answer these charges?
Asked for five weeks knowing the time period allowed. Why is one month given? Because it’s the head of the Judiciary. This is not a joke. When there are allegations against the head of the judiciary of the country it is the duty of Parliament to see that the matter is expeditiously resolved. Supposing she has to clear herself? So long as the matter is prolonged the people of the country will see her as a person with allegations and the international community will look at Sri Lanka as a judiciary with corrupt judges. So both ways… To get herself cleared and to get the name of the country cleared (The process was expedited).
Even the documents were ones that were in her possession. So had she been present or represented and moved for time, as we know in court do we take more than one day to conclude an ex parte matter? We have also handled cases, ex parte matter - it’s taken up an immediately disposed of.

Q. You were very well aware when you all made this appointment that her husband held a high position in a state bank. Did you not personally see a conflict of interest?
Well my view has been right through that it is very wrong; she would never have accepted or allowed the husband to have accepted. My wife is a public servant but she doesn’t go for election duty. When I was in the AG’s department my uncle was a minister and on various occasion I have restrained myself from getting involved in various legal matters.

Q. So the President and cabinet were wrong in this?
No. No one can say the President or the Cabinet was wrong. Now when I was in the Opposition I was offered various positions but I decided not to, because I should know what to do. These positions are not just given, you have to submit an application to get them. I mean you should know to be responsible.

Q. You bought in the fact that it was the Opposition who first brought this whole issue up. But President Mahinda Rajapaksa after all of this said “ Ape ekkenane, me gollo kagahuwa, ape ekkenane ithin api shape kara”  do you think that was a responsible statement? What I’m trying to say is that the charges were not based on any of that (oppossition claims), right?
To tell you frankly and technically, who will want, we are a country that is moving forward. We have had enough trouble. We are blessed with having President Rajapaksa as our leader, if you look at neighboring countries they are all in disorder because they don’t have a proper strong leader. So the duty and the responsibility of the leader of the country is to somehow resolve issues and move further. What comes first is not what you achieve by pushing someone onto the wall but to see that the country is moving forward. But when something really is an issue you have to take action. Even in courts we promote mediation and arbitration, these are concepts that are internationally accepted ways of resolving issues.

Q. Finally, after you have the time to read the SC determination, the SC has the sole and exclusive jurisdiction to interpret the constitution. This has not been disputed and the SC has interpreted this whole process to be unconstitutional. Will you agree to the interpretation?
With regard to this matter, Parliament’s position is very clearly elaborated and communicated to the judiciary. As I clearly told you the judiciary can exercise authority that has been delegated to it by the parliament independently but only what has been delegated. So the clear line has been drawn up, identified and communicated by the Speaker in writing.

Q. If parliament doesn’t agree to this interpretation and decides not to abide by it,wont the country fall into anarchy? Are the rulers of this country willing to let this country descend to anarchy?
There are various third parties and people who can’t come to power through the people’s vote, who want to put this country to that level. They tried this for three decades with the LTTE and our president eradicated terrorism. Then they got hold of a retired army officer to see if through him this country can be brought again to dance to the tune of various outside sources so that the development of the country is stalled. Now they are attempting the same with the use of the judiciary. To tell you, this is nothing to do with the judiciary. This is a disciplinary inquiry against a member of the judiciary. If the person concerned feels that she is clean then it is up to that person to act responsibly and to make herself available before the Committee. That was done. All of this I believe is done with the motive of creating confusion in this country in order to gain private mileage and personal benefits and to drop this country down back again to what it was.
But we have faced such situations, and will see to it that the people’s expectations are fulfilled and the people’s rights are protected and the independence and the purity of the judiciary are at its highest.
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  • Rand Jay Monday, 07 January 2013 05:28 AM

    The Tamil Diaspora has joined with the UNP and JVP along with the NGO s to undermine the great government of Mahinda. Go ahead dear leader and sack the CJ as well as the anti government Lackys in the judiciary including those in the a Supreme Court and the Appeals Court. Also whip the black coats with a polpittha.
    You are the fearless leader who won the unwinnable war and saved the Motherland. The country is great full to you forever and you will not fear the jackals who bark at you. These are the traitors who have now joined hands with the Tiger remnants to undermine you. There will be Singhala Traitors always and fear them not. Get rid of the Dodgy CJ and clean the Judiciary. Where were these Singhalese Traitors when the JVP and the LTTE were killing thousands of innocent civilians ? Who are these traitors to talk about justice and procedures relating to an impeachment of a dodgy CJ? The dogs bark but the caravan moves on!

    Dinu Sunday, 06 January 2013 03:11 PM

    Govt wanted to kick out CJ and got into a big hole. Now they are changing their tone to over come situation. LOL

    Thilaka Amarasena Sunday, 06 January 2013 04:11 PM

    After winning the War on Terror, when the corrupt Regime imprisoned the War Hero on false charges using Kangaroo Courts and openly dine and danced with the LTTE Terrorists including the current Leader, who shared their wealth with the corrupt family, our peaceful democratic Sri Lanka became a corrupt, lawless Banana Republic. The citizens lost most of their rights. As we all know the Country is in the hands of a corrupt, crazy family, who believe that our mother Lanka is their private property. What will happen if we loose independence of Judiciary replaced completely by their jungle law? The citizens of this Nation are about to loose their Country, unless they all stand up against the injustices. God save former democratic Sri Lanka from a power crazy lunatic.


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