Wijeyadasa on impeachment, BASL resolutions and anarchy

The whole country is today paying for the sins of the Legislature and the Judiciary which passed the 18th Amendment, says President of the Bar Association of Sri Lanka (BASL) and Parliamentarian Wijeyadasa Rajapakshe.

He further explains that the 18th Amendment would have at least referred to a referendum, but the Supreme Court held otherwise. “It is for that sin that we are paying this price by putting the whole country in anarchy.”

Rajapakshe asserts that the three resolutions passed at the BASL Special General Meeting do not cause any harm to the sides which support the impeachment process or oppose it. He further warns that when faith in the Judiciary is lost, the country will go back to the period of ’71/’72 and ’87/’88 but sadly the rulers cannot understand this logic.

 

Q: What actually happened at the Special General Meeting of the Bar Association?

A: We summoned that Special General Meeting for Saturday (15) at the request of 440 members. In terms of our Constitution, if there is a request by over 100 members for a Special General Meeting on a particular issue, we are obliged to call for the Special General Meeting by giving a one week’s notice. That is how we summoned that meeting.

In the resolution there were several components. In addition to that, on the previous day there was another resolution given by the members who were supporting the impeachment process. Although we were not obliged to take that up because they had to give us seven days’ notice, I still decided to take up both resolutions. At the beginning of the meeting there were over 3,300 members. At the beginning I explained to the members the resolutions were tendered by the groups who were opposing the impeachment procedure. I also said that there were few resolutions I refused to put to the house.

Then I proposed from the chair three resolutions taking into consideration all the proposals from both sides. I categorically said that if anybody wants to oppose them, they can do so and if somebody wants to support them, they can do so. I said except in my case, everybody has the right to express their opinion. Then there were about 15 to 20 members who spoke. Close and active members from the Government side also spoke, admiring those three resolutions. They openly said that the resolutions were fair and impartial. This dialogue was going on for one hour.

At the beginning I had dictated the rules to be adopted in the debate. I clearly said that one can only speak for about three minutes and nobody can talk anything outside except the subject. There were three to four persons who started to talk attacking various people, antagonising others, and making allegations, and I did not allow them to talk. I had to stop those members. After one hour all the members including two or three members who are actively involved in the present Government activities said that since nobody has expressed any opposition, why not adopt this resolution? Then I put it to the house. Then all the people raised their hands. There was no opposition at all – nobody asked for a division.

In fact there were three members who had filed for the impeachment motion. I personally observed that those three also raised their hands. The SLFP Lawyers Association President and Secretary were there. They all voted unanimously to adopt the resolution. Members like Faysal from Hambantota, President’s Counsel Ali Sabri and President’s Counsel Prasana Jayawardena who appear for most of the Government cases all spoke in support of this. Similarly, members from the other side like President’s Counsel Srinath Perera and senior lawyer C.T. Gunarathna said this was ideal. Then when everybody raised their hands I said proceedings were terminated and stopped the meeting.

Then I, my secretary and other officials except the Deputy President went to our Bar Association office. After 10 or 15 minutes later, some group had gathered there and created some problems. The meeting was a closed door one. This commotion happened when the media personal came to report on the meeting. The unfortunate thing was that the Deputy President had also got involved in that. This is what exactly happened at the Special General Meeting.

Q: If there was opposition by certain members, how can you say the resolutions were passed unanimously?

A: At that particular moment not a single person opposed. If a single member had asked for a vote, I would have given the opportunity. We were well prepared to have a vote. The ballot papers were ready. Up to 10 resolutions spaces were kept in the ballot paper. We had got the support of the Organisation of Professional Associations (OPA) to conduct a vote and officers had come from there. I announced that we, being members of a learned profession, it was advisable to have a unanimous decision.

Since I assumed duties in March, not a single decision has been taken in a divided manner. I said that was very prudent but anyway it was a matter for the audience. I said my personal view was that these three resolutions do not cause any harm to either side. These are the resolutions that I believe personally both sides can agree on. Of course, although prepared for a vote, we had the practical difficulty as to how to handle the situation if someone or some group tried to disrupt it. But still I would have gone for a vote whether they disrupted or not. But the fact is that nobody wanted a vote.

The only opposition was from Deputy Minister of Health Lalith Dissanayaka. I gave him an opportunity to speak, although he was signatory to the impeachment motion. The only opinion he expressed was why I, being the President of the Bar Association, had not brought a law, a bill to the Parliament some time back. That was the only allegation he made. He never opposed to the resolutions.

Q: What are the resolutions that were turned down by you?

A: One resolution was for lawyers not to appear for the Chief Justice in the event the incumbent Chief Justice is removed. I dropped that saying it is not constitutional. The other one was to urge some international agencies like the Common Wealth, the United Nations, and the International Bar Association to get involved. I refused that also. I said that this is an internal issue that needs to be resolved within the country.

There was another resolution proposed by senior lawyer C.T. Gunarathna, to totally condemn the procedure that has taken place before the Parliamentary Select Committee. I did not allow that to go as a resolution. I did not put it to the house. Because I was thinking that all the necessary aspects were covered and also there was a legal issue as to whether we should go to condemn the proceedings in Parliament. Then there can be conflict of law. This could have also led to a privileges issue. Therefore I thought that it was not prudent. There can be legal complications.

These were not turned down. Like I explained, there was a constitutional issue. Secondly, in terms of our Constitution, in order to pass a resolution, we will have to give seven days’ notice. This issue was also raised then and there because there was no sufficient notice to the members. On the other hand our Constitution does not permit that kind of thing. Yes I decided these should not be put to the house because being the presiding President, it is my duty to do so.

Q: If you wanted to do it your way why did you call for an SGM?

A: I did not do it my way. I only guided the members. Whether they agree with my way or not is up to the members.

Q: Do you agree that certain members were not happy about the outcome of the SGM?

A: So far nobody has made any allegations of that nature.

Q: Your Vice President resigning from the position made a statement saying she was ashamed to be part of the Bar Association, which did not follow the basic norms of an organisation. Your comments?

A: I am ashamed of appointing her as the Deputy Chairman. I am the one who appointed her, not that she was appointed by the members to that position. Her husband Jayantha Wickremerathna, former Inspector General of Police, is a member of the Bribery Commission. He is part of that prosecution against the Chief Justice’s husband. Now this commission is investigating the Chief Justice also. Therefore, when the husband is in such position, I don’t expect her to be impartial at all. Although I did not tell her, I was of the view that she should have avoided this because there is a serious conflict of interest.

Q: Are you saying her resignation was politically motivated?

A: Yes, definitely. She is one of the ladies who goes all over the country and all over the world with the President.

Q: The Parliamentary Select Committee and its proceedings are done according to the Constitution. But why do you say it is against the Constitution?

A: No, it is not done according to the Constitution. The Constitution says it has to be determined by a judicial authority. Tendering of an impeachment is constitutional. But the procedure to find out whether she is guilty or not has to be a judicial process. Since the cases are now pending, we can’t make comments. Judgement will be delivered in few days.

Q: This is not the first time a Chief Justice has been impeached. So why is this sudden cry and agitation over the proceedings?

A: You cannot say this is not the first time a judge has been impeached. In the earlier two attempts, they failed. This was the first time a Chief Justice was really impeached. The first case of Neville Samarakoon was acquitted. The second case against Sarath Silva did not proceed. This is the one that has actually proceeded towards an inquiry.  On the other hand, there is no sudden agitation. Parliament has failed to do it. Since 1984 there were ministers of justice who were blind. They were sleeping. I being a member of the Opposition introduced a private member bill. All these justice ministers have failed in their duties. That is the problem.

Q: This entire process has put the country in turmoil. There is chaos in the Legislature and there are issues in the Judiciary. Why?

A: The last resort left for the people is the independence of the Judiciary. When they lose it, they will lose everything. The jungle law has come into force. The country has come into this stage because there is concentration on too much of power. Power is absolutely corrupt. This is the famous slogan in the political science and there is no exception to this. Unfortunately, today the whole country is paying for those sins of the Legislature and the Judiciary, which passed the 18th Amendment. According to the law we expected that the 18th Amendment would have at least referred to a referendum. But the Supreme Court held otherwise. It is for that sin that we are paying this price by putting the whole country in anarchy.

Q: Do you think the chaotic situation in the country is also a result of this case not being handled properly by the Legislature and the Judiciary?

A: Not by the Judiciary but by the Legislature. They should have had the decency to concede when there are charges against the highest law enforcement officer in the country that she also should be given a fair trial. Like fair trials are given to all the murders and other criminals. But that chance was not given to the Chief Justice. We are not fighting for Dr. Shirani Bandaranayake. We are not concerned about the individuals. We are concerned only about this institution.

Q: The whole country witnessed that there is a rift between the lawyers. They have come to a state where they attack each other physically. Your comments?

A: Our politicians have ruined all the professions and organisations in the country. Even the temple is today turned in to a political institution. The politicians have totally ruined this country.

Q: Are you in the view that the Chief Justice has done no wrong?

A: We don’t know whether the Chief Justice has done any wrong or not. We are not saying not to proceed with it. We are saying to follow the proper procedure. When there is allegation against someone, when the man who makes the complaint himself probes the judgement, will there be justice? What is his competence? What is his education? What is his experience to make a decision? When a man is charged for a Rs. 100 theft, we have a competent trained judge to determine it. When it is the Chief Justice of the country, can an ordinary man just within 24 hours pass a judgement like this? We see danger. When this kind of thing happens no judge will be able to pass an independent judgement. The fear psychosis will remain. They will be under threat. Therefore, it is useless to have a judicial system in this country. Better that power should also be given to some jokers in these several institutions. That is our worry.

Q: You have said if they remove the Chief Justice without a fair trial, you will not welcome the new chief justice. What impact will this have?

A: Welcoming the new chief justice is the highest-ever tradition that had been maintained over a century. When there is a new chief justice, the Bar gathers and has a ceremonial sitting to welcome the new chief justice. Normally the new chief justice doesn’t sit until this welcome is held. Therefore, when a new chief justice comes without a welcome, it is an insult. It means that the chief justice is not recognised by the lawyers.

Q: Since there are two divisions among yourselves, although you may not hold the welcome ceremony, the other fraction will go ahead and do it. Your views?

A: They can’t do that. This is a unanimous decision of the Bar Association. The President of the Bar Association has to address it. After my term I don’t know what will happen; that is not my issue. As long as I remain, I will maintain all these traditions and I will be abiding by the common decisions. Under no circumstances will I change the decisions of the Bar. This is a pathetic situation. The Legislature and the Executive have undermined the Judiciary. The biggest danger is that people are gradually losing faith in the system. In the Executive and the Legislature, people have lost confidence for a long period. But still they have confidence in the Judiciary. That is why all these three organisations were functioning with all these deteriorations. When the faith in the Judiciary is also lost, we are going back to the period of ’71/’72 or ’87/’88. Our worry is that these rulers can’t understand this logic.