‘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.