CP told DEW to abstain
January 11, 2013, 11:33 pm
Senior Minister D. E. W. Gunasekera told Parliament yesterday that he had been instructed by his Party, the Communist Party, to refrain from voting on the impeachment motion against Chef Justice Dr. Shrani Bandaranayake.
"My party has instructed me to refrain from voting on this Motion, in keeping with the political position taken by my predecessor Sarath Muttettuwegama, on a similar impeachment in 1984," Minister Gunasekera said.
Speaking during the debate on the impeachment motion, the Minister said that the members of the House were entitled to their constitutional right to move a resolution for an impeachment. "If the party concerned is proved guilty, he or she should step down or be removed. This is unquestionable."
However, he said that as representative of the people, in the legislature being supreme, they should act fairly, judicially, ethically, constitutionally, and legally setting an example to the other two organs of the State.
Full text of Minister Gunasekera’s speech: "Since the enactment of the JR Constitution of 1978, this House had to face four impeachments against chief justices namely Neville Samarakoon, Sarath N. Silva and presently Dr Shirani Bandaranayke. This House is also aware of an impeachment against President Premadasa which ended up in abortion – quite mysteriously.
In this background, I wish to explain my position with regard to the current impeachment under discussion based on the following material facts.
Firstly, the constitutional position. Much has been said on the floor of this House, in the media, in different courts of law and even in the streets. I do not propose to exhaust you with my comments and observations on these arguments and counterarguments.
The simple unchallengeable fact is that the Constitution, in terms of Article 107 (2), provides for an impeachment in respect of judges of the Supreme Court and Court of Appeal. In terms of Article 107 (3), Parliament is required to provide for a process for such an impeachment which should include a procedure in respect of investigation and proof of the alleged misbehavior or incapacity and also the right of such judge to defend.
Specifically, in terms of Article 107 (3), Parliament is called upon to enact a law or standing order. But, as you all know, until 1984, this Parliament failed to enact a Standing Order, until the need arose in the case of impeachment against Neville Samarakoon. As yet, though 35 long years have lapsed, this Parliament has failed to enact a law with regard to process or procedure.
Neither this House, nor the judiciary nor the legal fraternity, including the Bar Council nor the Attorney General’s Department nor the Ministry of Justice nor the Executive, for that matter, realized the need for an enactment of law in respect of such a process or procedure. This failure led us to this impasse, crisis and confrontation.
Touching upon the Standing Order 78 A, currently under debate, I should remind this House that even that Standing Order 78 A was introduced to this House in a mighty hurry within a matter of 24 hours, according to authoritative sources.
In that Standing Order 78 A, it should be admitted that there was neither a process nor a procedure as required by Article 107 (3) – the whole question of unconstitutionality arose from this glaring inadequacy.
As I said, this controversy first arose in the case of the Neville Samarakoon impeachment – this is lucidly and clearly illustrated in the separate report submitted jointly by the then official opposition led by Anura Bandaranayake, comprising Dinesh Gunawardena and Sarath Muttettuwegama, who served in that Select Committee.
In that report they touched upon both the constitutional aspect regarding the judicial power and the need for an amendment to the Standing Order containing a process and a procedure.
I quote from the report of 1984: "We would urge that HE the President could refer this matter to the Supreme Court for an authoritative opinion thereon under Article 139 (1) of the Constitution. The signatories to this statement feel strongly that the procedure that Parliament finally adopts should be drafted along the lines of the Indian provisions where the process of inquiry which precedes the resolution for the removal of a Supreme Court judge should be conducted by judges chosen by the Speaker from a panel appointed for this purpose. We, therefore, urge this House to amend Standing Order 78A accordingly."
This recommendation was ignored by the then UNP Government perhaps simply because it originated from the official opposition.
This request had not been considered by this House and by all the Administrations even though almost 29 long years have lapsed since the last impeachment.
This lacuna could have been easily remedied by the House within 24 hours through the strengthening of the Standing Order 78 A.
Tissa Vitarana, Vasudeva Nanayakkara and myself addressed this issue in writing immediately after the appointment of the select committee in respect of the Shirani Bandaranayake impeachment. We addressed it to all those who are concerned. Had there been a positive response, there would have been no conflict, and there would have been a smoother operation of this impeachment process. Even and enactment of a law was not a complicated process.
Secondly, in the absence of such a laid down process and procedure, in my view, the accused party would not be satisfied that the inquiry was conducted fairly, orderly, judicially, and ethically. Chief Justice Neville Samarakoon’s first reaction to 78A was that he would not attend the inquiry. On second thoughts, he came along with his defence counsel Mr. S. Nadesan.
Thirdly, since the inception of the impeachment resolution, the whole issue was completely politicized. The issue was taken to the streets. Our attempts to intervene to avert such a development were in vain.
The official opposition failed in its duty to avert such a situation on the contrary, they subscribed and contributed to those negative developments. Their withdrawal from the select committee is incomprehensible. They should have remained there and produced a separate report on their own, if they disagreed or were not satisfied with the conduct of the inquiry. Naturally, the media reaped a good harvest during this whole period.
As far as we of the Left are concerned, right from the beginning we attempted to intervene at several stages to avert a constitutional crisis, a confrontation between the legislature, executive and judiciary, the politicization of the impeachment issue.
The members of the House are perfectly entitled to their constitutional right to move a resolution for an impeachment. If the party concerned is proved guilty, he or she should step down or be removed. This is unquestionable.
However, as representative of the people in the legislature being supreme, we should act fairly, judicially, ethically, constitutionally, and legally set an example to the other organs of the State. Parliament never attempts to usurp powers of the executive or judiciary. Equally we cannot allow the executive or judiciary to cause invasion to our territory.
Parliament is not supreme over the people or even the Constitution – our supremacy lies at the level of the three organs of the State. We can claim to be supreme, as representatives of the people who are sovereign. But the fact remains that under the 1978 Constitution our supremacy has eroded. Our power has been substantially reduced. This is the root cause of the chaotic situation. As legislators, we do not enjoy the powers we enjoyed under the 1972 Constitution.
We are no longer supreme, as some of our members claim for we are being bridled both by the executive and the judiciary.
Fundamentally, all these issues arise from the destructive and defective nature of the 1978 Constitution. Remedy is to get rid of it as early as possible, as otherwise, we shall continue to suffer the consequences of these controversies, conflicts and confrontations between these three organs of the State.
There have been attempts of invasion by the judiciary on the legislature by the Chief Justice Sarath Silva. Speaker Anura Bandaranaike had to react and resist.
For democracy to thrive, the rule of law has to be guaranteed. For that the supremacy of Parliament is important. We must take back the powers that have been usurped. The independence of judiciary must be guaranteed to ensure that the judiciary must cooperate with the executive and the legislature.
We must not create by ourselves conditions for conspiracies or foreign intervention. If we solve our problems by ourselves in cooperation with the political parties, such conducive conditions for foreign intervention will not emerge.
Finally, I wish to reiterate what Speaker Anura Bandaraniake, in his historic decision of 20-06-2001 said: Members of Parliament may give their minds to the need to introduce fresh legislation or amend the existing Standing Orders regarding impeachment against judges of superior courts. I believe such provision has already been included in the draft constitution tabled in the House in August 2000." Thirteen years have lapsed, nothing was done. We have abdicated our responsibility, thus this crisis.
In consideration of these factors, my party has instructed me to refrain from voting on this motion, in keeping with the political position taken by my predecessor Sarath Muththettuwegama on a similar impeachment in 1984.
Let sanity prevail, it is my wish and appeal."