Sarath N, SL slam impeachment process

• SL says 19th Amendment will only strengthen President’s hand
• Former CJ says Shirani B. was “bulldozed” from office
• Silva calls Standing Order 78A “horrible”
• Senior lawyer wanted fair trial for Shirani Bandaranayake  

By Dharisha Bastians

In a seeming deviation from his initial position, Former Chief Justice Sarath N. Silva on Tuesday decried the impeachment process set up under Standing Order 78A as being worse than the French Inquisitorial system of justice and said the courts of law had the right to decide on whether the rights of a judge had been infringed in the Parliamentary Select Committee process.

Delivering the guest lecture at the inaugural Law Talk organised by the Law Students Association of Sri Lanka held at the International Centre for Ethnic Studies last evening, Silva said impeached Chief Justice Shirani Bandaranayake had been bulldozed out of office and claimed that the more he thought about Standing Order 78A under which Chief Justice Shirani Bandaranayake was investigated and impeached, “the more horrible the procedure seemed.”

“78A was a rush job, drafted in 24 hours and now passes off as the provisions under which a judge can be impeached,” Silva said, adding that there was a major lacuna in the Standing Order that had been drafted overnight in 1984 and it had “absolutely no merit.”

“The bulldozing of Shirani Bandaranayake from office, almost physically, as the video footage of her departure showed, shows that the arrogance of power had now reached its zenith,” Silva said. He added that the courts of law had the right to decide whether her rights under the Constitution had been denied during the impeachment process.

The former Chief Justice said that under Article 105 of the Constitution, the Supreme Court, Court of Appeal and High Courts were vested with the power to decide on whether Dr. Shirani Bandaranayake’s rights had been infringed. He said that while disciplinary control alone did not amount to the exercise of judicial power, if it infringed on the rights of the judge being disciplined, the remedial action was for a court to determine. “In my view, the PSC exercised judicial power,” Silva added.

According to the former Chief Justice, he had urged the President to refrain from removing Bandaranayake from office even after the resolution had been passed by Parliament. “Instead, Mohan Peiris was moved in by force, and he is seen as a usurper,” Silva said adding that although it seemed feeble for Bandaranayake to be claiming she was the legitimate CJ when the reality was not so, such statements had repercussions for Sri Lanka internationally.

“Now Mohan Peiris is holding office and will decide on the bench that will decide on something relating to the impeachment of his predecessor whose place he has taken – this goes completely against the principle of natural justice,” Silva charged.

Silva also quipped that he was the survivor of impeachment with all those judges against whom impeachment motions had been brought having passed away and the latest victim having been removed from office.

“There is a time for legal redress and a time to be practical. During my impeachment, I used other means to get out of it – otherwise there would have been a lot of grand judgments in my favour but I would have been at home,” the former CJ said, referring to the UNP’s motion of impeachment tabled against him.

Also delivering a lecture at the event, Senior Attorney at Law, S.L. Gunesekera who has been vociferous critic of the impeachment process from the outset, said that although a lot of noise was being made about the Separation of Powers principle, the fact was that there was no such separation between the Executive and the Legislature. “Today, when the President says jump, Parliamentarians don’t ask ‘why’ – as they should – they simply ask, how high?” Gunesekera charged.

The senior lawyer said that when Parliament speaks of increasing its powers through a 19th amendment that will shorten the tenure of a Chief Justice for three years and make standing orders law, it is in truth speaking of increasing the powers of the President. “It is one and the same. Such powers will only strengthen the hand of the President,” Gunesekera explained.

Gunesekera said that the only fortunate thing that the impeachment had brought to bear upon Sri Lankan society was the degree to which sycophancy had penetrated society. “I am ashamed of the members of the Bar who flocked to support this impeachment process against Shirani Bandaranayake, not because of conviction but in anticipation of political rewards.”

Gunesekera hastened to add that he was not a supporter of Bandaranayake nor did he consider her ‘lily white’ but stressed that he was firmly of the belief that she had a right to a fair trial, just like any other citizen.