SRI LANKA: The Unfair impeachment of the Chief Justice?

Unfair Inquiry of only "Six Hours"detailed facts & truths.-December 4, 2013 The most astonishing, outrageous and mysterious aspect of the Impeachment proceedings is: How The entirety of the !actua" In#uiry proper! of e$amining and recording of a"" the e%idence of se%era" witnesses, producing and mar&ing enormous amount of comp"icated documents, was speedi"y and hurried"y rushed, in about 'i%e Hours, of one continuous sitting, on the (th and the de"iberation, preparation consideration and appro%a" the fina" )eport, was done in *ust 20 minutes on the +th of December, ,pp 24(-2.2/, a"" within the !impossib"e! si$ hours, which wou"d ordinari"y ta&e, se%era" months of "engthy hearing and de"iberation, but in this case against a 01hief 2ustice0--- it was strange"y - !otherwise!, that is--: 13 a3 4$amining and recording of the e%idence of a"" the 15 witnesses ca""ed, b/ the reading, submitting and mar&ing of more than 1000 pages of %arious documents, most"y containing comp"icated financia" statements,, both these a"one wou"d ta&e se%era" months / and more c/ the de"iberations, determination and finding of gui"t, from the bu"& of enormous e%idence 6 documents and d/ the preparation consideration and appro%ing of 35 pages of the, !high"y "ega" formu"ation0 , 0'ina" )eport0 7this in itse"f wou"d ta&e se%era" wee&s if earnest"y and genuine"y pursued by each and a"" the members of the 8ane" of In#uiry - and 9hat is ama:ing, shoc&ing and pu::"ing is that, what wou"d norma""y ta&e at "east si$months, was done within the !impossible and incredible' si$ hours, How 9hy and 9hat for this impatient hurry to deny 0*ustice0 and these were done, 23 In the absence and without the impeached ;ady 1hief 2ustice, her defence counse" and the team, ,e$-parte/,--- in the absence of a"" four opposition members of the In#uiry pane", who did not resign but on"y !withdrew! or wa"&ed out, and 33 Ho"ding the In#uiry in !secrecy!, in camera, under the pretext of the Standing Orders,without permitting anyone to witness the proceedings, shutting out the media, the obser%ers, without openness or transparency, hidden from pub"ic %iew, contrary to a"" !Principles of Natural Justice', and in spite of protest from the impeached chief *ustice, who wanted a !pub"ic hearing!, but was carried on nonethe"ess in a 0conspiratorial manner0 ta&ing undue and unfair ad%antage and opportunity of the absence of the defence and the said four members, and 43 9ithout showing, consu"ting, getting the endorsement or dissent or comment or signatures of the said four "egitimate opposition members of the pane", tota""y and arbitrari"y ignoring or disregarding and un"awfu""y e$c"uding them, from appro%ing or re*ecting the #uestionab"e 0'ina" )eport0, before sending it to the <pea&er, the brother of the 8resident= and 5) Despite the objection to' ias' on the part of t!o specific go"ernment members of the panel, against the #hief Justice, both for ha"ing been gi"en judgments against

their interests in the Supreme #ourt and one' for additionall$ issuing statements to the media and else!here manifestl$ critical of her and both !ith others insulting, abusing and beha"ing in an ad"erse and hostile manner to!ards her in the earl$ stages of the impeachment process and before, and 53 Despite the ob*ection to the absence of a definite "aid down procedure, in ad%ance, not specifying the mechanism, process, the procedures for the in#uiry, of producing or mar&ing the documents, "isting of witnesses, regarding proof, etc but instead, acting in an arbitrary and ad hoc manner, and unreasonab"y insisting on the defence to !>egin!, !8ro%e the innocence! and !Dispro%e the charges!, etc and %) Despite the protest for the refusal to grant reasonable time to the Defence to prepare a& a full and comprehensi"e Statement of Defence to the '( hapha)ardl$ drafted charges * later b& to prepare for the in+uir$, fixed for the "er$ next da$, !ith ',,, pages of documents being pro"ided, in bul-, the last moment and !ithout pro"iding the rele"ant !anted documents or !itnesses sought for, and +3 ?fter mis"eading the defence, that there wou"d be no witnesses ca""ed, !compe""ing! them to withdraw and after the four pane" members a"so withdrew the ne$t day, and e%en without their prior &now"edge, immediate"y, sudden"y and chee&i"y ca""ed 15 witnesses from !nowhere! without "isting, noticing or summoning them, proceeded to record the e%idence of a"" of them, the same night, in a casua" manner , without any cross e$amination, in about, fi%e continuous hours, and @3 1ontrary to the fi$ed agenda [i]to be fo""owed ie a3 Discussion on the papers and documents mar-ed. b& Discussion on 'the defence statement', ie the ans!er, both of !hich ne"er too- place. No Discussions !hatsoe"er on the documents or the ans!er, but instead the documents and the e"idence, !ere hurriedl$, mar-ed and recorded, !ithout an$ discussions, and the /rd agenda ne"er arose ,ie hearing of the #J ,as she !al-ed out, and 103 Despite both <uperior 1ourts directi%es or re#uests, to suspend the sitting of the 8ane" of In#uiry, pending the courts de"iberation, the se%en Ao%ernment members of the in#uiry pane", despite the protest from the other four members, ne%erthe"ess ignored, disregarded and defied the 1ourts directi%e and rushed in speedi"y, conc"uding the In#uiry, hasti"y and hurried"y in *ust 'six hours', and found the! 1hief 2ustice! 0Aui"ty0 and 113 There were a"so disputes and a contro%ersy regarding the right to !cross e$amination! of witnesses and the pane" without c"arifying this, to"d the defence that no witnesses wou"d be ca""ed, tric&ing them to withdraw= Had the defence &nown that witnesses wou"d be ca""ed, they may probab"y not ha%e withdrawn= 123 Bany of the ru"ings to the ob*ections raised by the defence were !arbitrari"y! made without consu"ting the four opposition members of the 8ane" of In#uiry= Bany more such irregu"arities and unfair treatment were meted out to the defence= It is pertinent to point out that, in fact, the comp"ainants, !prosecution! C"eading of e%idence3 and the !2udges! were one and the same side, ie the go%ernment group The e%idence "ed e$-parte, were not re"iab"e or dependab"e as they were not sub*ect to scrutiny or cross e$amination and one main witness had a !grudge! towards the 12 in the same matter and her e%idence was thus suspect or biased= The impeached 12 and the defence team were compe""ed to withdraw, fo""owed by the

four opposition members, the ne$t day/ due to pre*udice, arbitrariness, unfairness, and bias of the !obstinate determined ma*ority! in the pane" of in#uiry= The pane" refused to reconsider and accommodate the defence, to ensure fairness= The entire episode was "i&e a mafia sty"e, stunning !day"ight robbery! of *ustice= Did the entire pane" discuss, de"iberate, prepare and ade#uate"y consider the )eport 9hen and 9here if not 9hy 9as there an outside hand or someone e"se in%o"%ed, participating or manipu"ating and a"so preparing the 'ina" )eport Dote, the 0)eport0 cited fi%e House of ;ords *udgments and the Ha"sbury )eport= How many, in the 8ane" of <e%en wou"d ha%e contributed or appreciated-0these0 En 1F1F2013 the <upreme 1ourt ga%e its E)D4) that it is mandatory for 8ar"iament to enact "aws under art=10(C33 of the 1onstitution, )e= 8rocedure of conducting In#uiry etc, Cinstead of acting on (+ of the <tanding Erders3, En (F1F13 the 1ourt of ?ppea", issued a !writ of 1ertiorari! Guashing the findings of the <e"ect 1ommittee, as un"awfu" etc The ?ttorney Aenera"!s petition of appea" to set aside the !9rit! is before the 0<upreme 1ourt0 for determination= 9hy-Dow The 0<e%en Bember 8ane"0 that in#uired, determined and found her gui"ty, comprised e$c"usi%e"y and entire"y the Binisters of the Ao%ernment Cone sided3= Do sooner the four opposition members wa"&ed out, the rest of the pane", without any hesitation or reser%ation, being unconcerned and unperturbed and without ad*ourning or accommodating the said four, immediate"y, sudden"y, and happi"y too& the undue ad%antage and opportunity to e$p"oit the rare situation, and rushed to hasti"y conclude, recording the e%idence, in a nonstop fi%e hour, the same night= Dote that the !In#uiry! started at about 4pm and ad*ourned at +=.0 pm-Cabout . hours3 on the (th and again met at +=30 and finished at +=.0 am ,in 20 minutes/ on the +th=December, "ess than si$ hours in a""= %ide pp 24(-2.1 and pp1.11-1.(.= The Impeachment proceedings are !a%ai"ab"e! in Two Ho"umes of 1.(. pages= 9hy was the Ao%ernment in such a panic&y hurry to somehow finish the !In#uiry! on the +th of December 2012, ,when there was sti"" time, ti"" 12th / and when the entire pane" had unanimous"y agreed and decided to mo%e for an e$tension by another month, ti"" 14 of 2anuary 2013= There is a 0$ster$ behind these episodes= 2ustice de"ayed is *ustice denied, but 2ustice hurried"y rushed is *ustice destroyed= The <amara&oon 12 Impeachment proceeding of 1@+4, too& si$ months, this was after the !admission of the facts in the on"y one charge! ,without the need for e%idence/ but in this case it was a"" otherwise and different, premature"y conc"uded, !in *ust <II HEJ)<! in spite of the bu"& of !#uestionab"e! documents and e%idence= 1as the 'Panel of se"en' properl$ and "alidl$ constituted after the !ithdra!al of the four opposition members. 2as the 'panel of se"en' an$ right to arbitraril$ hear and determineonl$ a fe! charges. Shel"ing indefinitel$ the others, contrar$ to the 30andate3, !ithout getting the prior 'appro"al' of the Spea-er and Parliament4 5t is ob"ious that e"er$thing !as predetermined and a foregone conclusion and the '5n+uir$' !as a mere formalit$, a farce, a pretention to justif$, to someho! '6emo"e' and to be 6eplaced b$ another777 acceptable one, obedient and obliging4 5t is against all Principles of Natural Justice, 8air 9rial, Openness and 9ransparenc$ 5t !as 0isuse or :buse of the legal * constitutional process to justif$ the 6emo"al4

9o legitimi)e the illegitimate or ' illegitimi)e' the legitimate, is arrogant per"ersit$ Onl$ a "igilant, "ibrant, robust and an acti"ated independent :6 can gi"e strength, support and confidence to the Judiciar$ to act independentl$ and !ithout fear or fa"our4 9he :6 :ssociation must ensure this4 Onl$ a #hief Justice appointed through an acceptable 'general consensus' can infuse confidence of the :6, the Judiciar$ and the public4 9he subse+uent 3arbitrar$ st$le'' appointments to the higher judiciar$, contrar$ to accepted norms, has dented the 'confidence' in the judiciar$4 9he judiciar$ and the justice s$stem is no! at sta-e and "ulnerable. 5t is unfortunate that there !as no 'Dissenting 6eport' b$ the '8our 0embers', nor a report. b$ the defence team and most unfortunatel$ the opposition alternati"e political leadership has not created or pro"ided the necessar$ 'political and democratic space', co"er or en"ironment for the la!$ers and ci"il rights mo"ements to continue to agitate and 'fight for justice' !ithout fear of threat or conse+uence4 5f this can happen to 'a ;ad$ #hief Justice', !hat is the fate of others. 1hat could ha"ehappened to thousands of !others! in the past ie, Disappearances etc= The p"ight of the e$- !?rmy Aenera"! in the 1ourt Bartia" In#uiry is another reminder= If this is the precedent and norm, 1an we e$pect any !*ustice! from the state It is for the >?) and the ;awyer 'raternity to decide, 9hat ne$t 1onform or )esist= The !;ega" 8rofession! itse"f wi"" soon become 'irrele"ant', p"eading and not arguing= The !past! cannot be forgotten, the !future! cannot be !forsa&en!, !Today! is not e%erything, e$pediency cannot substitute !)ea"ity!, !'uture! is our HopeK in Justice= There are ominous !signs! of an impending disasterK patronage and protection to drug dea"ers, crimina"s and murderers the po"ice and the ?A is he"p"ess 6 he"pfu"= The !%oice! of dissent, the dissident cu"ture, must assert in the midst of !repression!= Dow or De%er, tomorrow is too "ate,-success or fai"ure "et us do our best= 9e cannot be !accomp"ice! to !In*ustice!, either shamefu""y submit or defiant"y resist= 4%en a subdued, si"ent, in%isib"e and sustained continued effort wi"" ser%e the need= The Impeachment outcome was referred by the <ecretary Aenera" of the 1ommonwea"th to two- 3rd Jmpires- <outh ?frican e$-1hief 2ustice, 8ius ;?DA? and <ir 2effry 2owe"", G1 and both dec"ared- the !1hief 2ustice!- 0DET EJT0= 1an there be an Independent !2udicia" )e%iew! on the !'indings and the )emo%a"! 9as the 01hief 2ustice0 gui"ty of a serious and 0pro%ed misbeha%iour0 9his brief account deals exclusi"el$ on the73Six hours 5n+uir$ onl$' and not other aspects, ie4 8indings, !hich needs a separate attention4 9here !ill soon be a panel discussion b$ experts and eminent jurists and broadl$ b$ the members of the :64 9his is an 3informal preliminar$ draft3 for discussion and not a final paper4 Please for!ard copies to 'others'.4 : Sinhala translation !ill follo!7soon4 Prepared b$ 77 ';a!$ers for Justice'4