Can another Second PSC play a better job?

By C. V. Vivekananthan- Attorney-at-law

The Mutual Respect and Understanding manifested under a Second Select Committee against CJ Samarakoon headed by Lalith Athulathmudali. 



President Jayawardene manipulated the presentation of an Impeachment Resolution to remove the then CJ Neville Samarakoon on March 3, 1984 as the then CJ had strongly resented the interference of the Executive President in the Independence of Judiciary.

It was suddenly dawned in the President’s mind that there was no procedure prescribed to receive, conduct and conclude such a removal. So, Standing Order 78A was formulated on March 4, 1984, infringing the provisions of the Constitution and without a scant respect for rule of law, procedural justice and principles of natural justice.

Select Committee, appointed by the Speaker under the Chairmanship of Prime Minister R.Premadasa delivered its report on August 9, 1984 and it failed to find CJ Samarakoon guilty of proved misconduct.

On the same Resolution, the Speaker appointed the Second Select Committee on September 6, 1984 under the Chairmanship of Lalith Athulathmudali. The same procedure could now be invoked by the Speaker by annulling the faulty proceedings and appointing another Committee affording the CJ a fair hearing to present her defence.   

" The same procedure could now be invoked by the Speaker by annulling the faulty proceedings and appointing another Committee affording the CJ a fair hearing to present her defence. "

The speech made by the then CJ was admitted and hence no oral or documentary evidence was led. Only oral submissions and written submissions were submitted.

The Select Committee commenced its meeting on  September 11, 1984 and continued to hold meetings on 18, 25and 28 September 18, 25,  28 and October 2, 3, 4, 10, 12 and 17 November 2, 27, 1984. Thus, fourteen meetings were held.
At the first meeting itself, the then CJ was given the copies of the Resolution and the Standing Order 78A and he was required to send his written statement of defence. His request for two weeks was not acceded but was given one week. The CJ had transmitted his written statement to reach the Committee on September 17, 1984.

On September 18, 1984, the CJ had once again requested for two weeks to send a detailed written statement stating that earlier written statement was prepared in haste as no sufficient time was afforded. The Committee granted another one week and informed him that he could make further written statement of defence, if he so desired, at any stage during the deliberations of the Committee. That was the courtesy extended to the then CJ but the good precedent was flatly denied to the incumbent CJ.

The Bar Association by its letter dated September 24, 1984 sought permission from the Select Committee to appear to make their submissions. The Committee consulted the then CJ for his views and since he expressed no view on the matter, the Committee decided to grant permission, if the need arose.

T.J. Peiris of Panadura by his letter dated September 24, 1984 wanted to participate at the Inquiry to speak against the then CJ. The Committee has decided to give him an opportunity if the need arose. Thus, the Select Committee under Lalith Athulathmudali followed unbiased and sufficient judicial approach which the present Select Committee lacked in each and every event of its proceedings, rendering the entire proceedings a nullity.The then CJ by his letter dated September 25, 1984 informed the Committee that he would be present with the following lawyers at the next meeting, to with S. Nadesan, Q.C., N.S.A. Goonetilleke, S.S. Ratnaike instructed by Mervyn Canagaretna. The Committee without any demur accepted them to represent the then CJ.
The Committee had to submit its Report on or before October 10, 1984. However, as the Inquiry was not concluded the Committee requested the Parliament to grant further time and it was readily granted till September 26, 1984. Further time was granted by Parliament till November 7, 1984 to submit the Report. As the Committee was unable to submit its Report on November 7, 1984 Parliament granted December 14, 1984. Accordingly, Six UNP Members of Parliament headed by Lalith Athulathmudali and three Opposition Members Anura Bandaranaike, Leader of the Opposition, Muttetuwegama and Dinesh Gunawardena submitted their respective Reports on  December 14s, 1984. Thus, the deliberations of the Select Committee went on for about two months.

  There was no overt evidence that President Jayawardene had interfered in the supremacy of Parliament or in the exercise of powers by the Speaker or in the proceedings of the PSC.  It is notable that no Member of Parliament who subscribed to the Resolution was selected to serve in the PSC headed by Lalith Athulathmudali. The good precedent was blatantly violated by the present PSC.

In UK, a Minister holding an inquiry was considered having an interest in the cause and it was so loudly proclaimed that “Parliament should keep clearly in mind the maxim that no man is to be judge in a cause in which he has an interest”.      

The Six Government Members headed by Lalith Athulathmudali have in their Report observed “While the Members of the Committee have certain reservations regarding the validity of Mr. Nadesan’s contentions particularly in view of the specific provisions of Article 107 of the Constitution, this Committee feels that notwithstanding any objections, if is duty bound to carry out the mandate given to it by Parliament according to the Terms of Reference specified”. They did not rule out the contention of Mr. Nadesan’s argument invalid or unconstitutional.The Six Members could have easily declared that the then CJ had been found guilty of proved misbehaviour but their sense of justice rendered them to observe “However, every breach of convention does not necessarily amount to proved misbehaviour. The standard of proof required is very high. In all the circumstances of this case, which this Committee cannot but condemn this speech, we cannot come to the conclusion that the Hon. Chief Justice is guilty of proved misbehaviour”.

Any reader of the above could easily judge how the then CJ was treated courteously in keeping with the dignity and honour of his office and how he was given a fair hearing. Suffice to say that the sobriety of words used couched with judicial scrutiny of the charges framed, all the lofty and noble principles of procedural justice enunciated by them were buried very deep and effectively cemented by the present PSC, shrouding the creation and preservation of a just and free society.