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| PSC member Vijitha Herath is all smiles when he left the Supreme Court complex this morning after the Court of Appeal delivered the Supreme Court determination which said that the Parliament Select Committee prima facie void and the law creating it was not constitutional. Pix by Pradeep Pathirana/ Daily Mirror |
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The Supreme Court of Sri Lanka, marking perhaps
the greatest day of its 200 year history, today declared in a historic opinion
that the Standing Order of the parliament, bearing no. 78/A, is null and void
and has no effect in law. By this opinion, the Supreme Court of Sri Lanka has
nullified the impeachment process against the Chief Justice Shirani
Bandaranayake, which it was pursuing with extraordinary haste and unprincipled
vigor.
Public opinion in Sri Lanka and the international
community, including the UN Rapporteur for the Independence of Judges and
Lawyers, had said in no uncertain terms to the government that the course that
it was pursuing in relation to this impeachment was against universally accepted
norms and standards relating to proceedings for the removal of judges of the
superior courts in any democracy. The Supreme Court today confirmed this view
and put the matter to rest.
The course open to the government is either to
abandon the impeachment move altogether or to pass a law incorporating the
international norms relating to the removal of judges, and thereafter place the
inquiry before a competent and impartial tribunal. A proposed law by an
opposition member and the president of the Bar Association, Mr. Wijedasa
Rajapaksha, is already before the parliament. Given the majority that the
government enjoys in parliament, this bill can be passed as a law in the
shortest possible time.
The government’s claim, that since 117 members of
parliament have placed a motion calling for the impeachment of the Chief Justice
and that the Parliamentary Select Committee has already been appointed, and that
the government members of that Select Committee have already made their report,
is in no way legally justifiable now as the Supreme Court has declared that the
Standing Orders under which such actions were done were null and void.
The Asian Human Rights Commission calls on the
Sri Lankan government to respect the interpretation of law given by the Supreme
Court, which, under the constitution, has the last word on the interpretation of
law. We also call upon the people to now come forward ensure that their Supreme
Court is respected by their government. It is also the duty of the international
community to intervene so as to avoid any unnecessary confrontation at this
moment.
If the government, instead of respecting the
Supreme Court, enters into a collision course with it, the responsibility for
that decision will be entirely on the government itself. There will be nothing
to justify such an action. People have a right to resist any illegal move that
the government may take and, whatever the consequences of such a situation, they
will be squarely on the shoulders of the government itself.
The government now has an opportunity to correct
many of the violations relating to the constitution that have been taking place
for a long period of time. Thus, the government has an opportunity to act in a
manner that ensures respect for the rule of law in the country. If the rule of
law is further undermined, the government is doing so at its own peril.
We take this opportunity to convey our respect to
the Supreme Court which has at last woken up to its responsibilities to be the
guardian of the dignity and the rights of the citizens of Sri Lanka. This
responsibility alone is the justification for its existence.
In the past there were at least four occasions on which the Supreme Court could have intervened to prevent fundamental abrogation: when the bill relating to the new constitution was placed before it in 1972; or in1978, relating to the UNP constitution; or in 1984, when the then President brought the first impeachment motion against the then Chief Justice, it could have declared that the Standing Order number 78/A was illegal; or in 2010 when the 18th Amendment was. If they had intervened then, much of the historical tragedies that Sri Lanka has suffered during this period could have been avoided.
We reiterate that position which the Asian Human
Rights Commission has repeatedly declared, that the extreme violence that took
place in Sri Lanka in the recent period was a direct result of the
constitutional aberrations that were done to deviate the country’s path from a
democracy towards dictatorship. Now, there are people who declare victories over
“a war”. However, the reality is that war could have been avoided and that
bitter period with a large number of lives lost would not have happened if not
for the failure of the courts to defend constitutionalism against the attacks
that the executive was making.
The present decision thus paved the way for
dealing with a number of pressing constitutional issues in the country. As
Justice Vigneshwaran stated last month, there is a situation of political
instability created by the 1978 Constitution, and particularly by the 18th
Amendment to that constitution.
The country has been pushed down a perilous
course for over 30 years now and the impeachment motion, if it had succeeded in
the manner in which it was pursued by the government, would have pushed us
further down the cliff of lawlessness.
The three judges who made the present judgment
have acted not in of the passion of the moment but with a chill of reasoning as
the judges of the highest court are expected to do. This should be a sobering
moment for the legal community in particular, to rally together purely on the
basis of democratic duties to safeguard the system. The people of Sri Lanka, we
fervently hope, will intervene to define the country’s future course.
