‘UNIVERSALITY’ ON
IMPEACHMENT AN ELITE FANTASY
The argument made by some interested parties in newspapers
that there is a near ‘universality’ of opinion against the
impeachment of the Chief Justice is so radically flawed, that
its self-serving nature becomes so painfully obvious.
Of course there is no such ‘universality.’ Lawyers such as
S.L. Gunasekera have been making a noise about the fact that
there is no ‘good side or bad side’ in this impeachment issue,
and that all that matters is the independence of the judiciary
because Judges in general will be given a message that if they
do not toe the line, they could face similar consequences.
These are tired arguments that have to be contextualized
first. To begin with, if anybody believed that there was an
ideal brand of judiciary in the past which was to put it mildly
not identified with the Executive in this country, such a person
is living in the ‘la-la land’ of fantasy and chronic amnesia.
The fact remains that all judiciaries were pliant to some degree
or the other, particularly after J. R. Jayewardene’s
record-creating kick in the posterior to eight Judges of the
Supreme Court. Chandrika Kumaratunga’s presidential tenure after
that was abysmal is in terms of independence of the judiciary,
due to what all of us know was the appointment of a Chief
Justice who had made himself totally unsuitable for the post due
to integrity issues that bedeviled him.
The relatively brief tenure of R. Premadasa was no better, so
we are covering a period of a quarter century or more when the
independence of the judiciary was not the ideal to put it
mildly, and all those who talk of ‘universal opprobrium’ about
the current impeachment move know this.
However, those such as S. L. Gunasekera who have opined that
the current impeachment is because of political cases which went
against the government, have forgotten that process has been
observed in the present instance, whereas J. R. Jayewardene did
not observe any process at all when he sent almost the entire
Supreme Court home with the stroke of a pen.
SLG says the process is inadequate, and did not afford a fair
opportunity for the Chief Justice to defend herself. If that was
so, why did the CJ not go through the paces within the process
available, without taking the adversarial route and walking out
of the proceedings ostensibly (a) because she was not treated
properly by the PSC members and (b) because she was not allowed
to cross examine witnesses.
What she should have done was to register her protest on
these counts if harassment and unfair procedure (allegedly) was
the case, and proceeded with the hearing, which should have left
her above board, and unimpeachable in her position that she
underwent the panel inquiry under some sort of duress. But when
she walked out before any of the real proceedings got underway,
she lent herself to the credible charge that she was making the
walk out as a ploy because she simply did not have a defence on
the integrity charges that were proffered.
Does S. L. Gunasekera and his ilk hold that somehow the
sacking of eight Supreme Court judges by a previous government
and holding the Supreme Court under a stranglehold of an
integrity-compromised Chief Justice who was very much beholden
to the governed due to this, was better than the current
impeachment which was done according to the constitutional
process, even though the judge being probed may have her
misgivings about it?
Those who say on the other hand that there is a ‘universal
consensus’ -- whatever that really means! -- over the current
impeachment, are ridiculously ignoring the fact that on the
other hand there is a universality of opinion that there are
some integrity issues against the current CJ’s name. This is
acknowledged by S. L. Gunasekera as well, and everybody
necessarily has to acknowledge this position after the CJ
remained on the Bench for instance after her husband was dragged
into court on corruption charges.
If this is the case, the remaining ‘universality’ of opinion
is about process. Yet this process compares well with J. R
Jayewardene’s sacking of eight judges summarily without any
process, or with the reverse process of top down degeneration of
judicial institutions under Chandrika Kumaratunga’s chosen Chief
Justice. Anybody who does not acknowledge these simple realities
would be purblind.
Then, what exactly is wrong here – to decide that somehow to
impeach a sitting Chief Justice compromises the independence of
the judiciary more than sacking eight judges, or APPOINTING a
Chief Justice who is at the very outset flawed – and who then
goes onto slow-throttle the judicial institutions and make them
pliant, as predicted?
Really, everybody knows that there can be no universality of
opinion in these relative circumstances. What they know is that
what is called ‘universality’ in this background of facts is
really name-calling aimed at this regime, because this regime is
for other reasons, seen to be bothersome to some of our
society’s entrenched elite, of both the overt and covert kind.
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