Sunday, December 23, 2012

Due Process – time for some clarity not dealt with in the Constitution



Due process is at the center of ANY form of review, be it a disciplinary hearing at work, or at an arbitration tribunal and especially in a court of law. It is the first thing a law student learns when he begins his studies. So it is NOT confined to a Court of Law. It is this that appears to have been set aside in the haste of the PSC to find the CJ guilty. For that grave mistake, it is a shame that lawyers privy to the proceedings and the President who effectively instigated it, who is supposed to be a lawyer, have forgotten.

It is that single issue that is at the heart of the international outcry of condemnation of the proceedings by the PSC, which will go down in history as the fastest judgment ever given on EARTH. That implies that Kangaroo Courts have been more fair, leaving this verdict at the edge of decency.

There are two methods this Government can get away from further embarrassment. The first is for the Parliament to vote against the findings of the PSC, and thereby avoid the impeachment of the CJ. The Second is to prorogue Parliament, so that this requirement automatically dies without a hearing, and effectively lets the CJ off until the new parliament determines what course of action to take.

I would recommend the first, where the Parliament may use the lack of due process to nullify the findings of the PSC, without actually saying the CJ is not guilty. It just says that the PSC report cannot be relied upon due to the basic norms being ignored.

I also recommend that after this action is taken, that a New Bill be presented on the Rules of Appointing and Removing Judges of the Appeals Court and Supreme Court. The Govt. will regain much of the lost prestige if the rules are on the lines of the Bill presented by the CBK Govt. of the UPFA in 2000 that was not passed and which the UNP has agreed they will now support. Then as both parties are in agreement, it should pass unanimously. For good measure, I would recommend that the appointments of Judges is also included, along International lines of best practice, which will deflect any criticism this Govt. may get on this issue.

It need not be an Urgent Bill, which smacks of impropriety. It can instead be a normal bill which will then require the assent of the Supreme Court as it pertains to Changes to the Constitution, but I believe which also requires a two thirds majority, which due to opposition support could pass ‘Unanimously’. We can then prevent a reccurrence. However I doubt this Govt. will wish to limit their powers.

5 comments:

Anonymous said...

we could also have mahinda rajapaksa annul the results of the last election due to complaints by his opposition and appoint a caretaker government comprising his opposition in a leadership position, just to make sure it's fair, and let them rule until the next presidential election, or even after that since his opposition says he had an unfair advantage.

the reality is that this was a political trial over a political appointment. there was plenty of evidence against her and she was likely guilty so now the opposition is not making claims to her guilt or innocence but to the "propriety" of her accountability hearing. fair enough, but due process really belongs in a court of law, whereas political accountability applies to political appointees.

Anonymous said...

you live by the sword and you die by the sword, so to speak. CJ was in cahoots with MR to be appointed CJ, and now she's been out of cahoots so MR is taking her out. this is lankan style, as opposed to gangnam style. some may say "where's the impropriety?" but others would like to believe there is a separation of powers between the judiciary and executive in order to protect the rights of citizens. so is anyone of the world powers barking about julian assange getting railroaded by the upholders of "rule of law' and "human rights" (except the right to free speech when you say something against the sovereign)? there are many forms of political double speak in the world.

Anonymous said...

I presume first anon when you say political accountability applies to political appointees, you mean that as she was such, she must do what her political masters say. If she does not she is accountable to them, and they have the right to find a reason to remove her?

Then as the appointment of the CJ is completely in the hands of the President, does it by definition become a political appointment and therefore the Judiciary can NEVER be independent in the present context of the current constitution as updated by the 18th Amendment!

Anonymous said...

Second anon, the Julian Assange issue is not compromising the whole fabric of society, whereas in the SL context of one person, yes one person now having complete control over all three arms of govt, and even the fourth estate is on a different plain altogether.

It is bordering on the senseless, however much it was a political appointment. In any case all appointments of CJ have to be political until a new Amendment is made on the method the CJ is appointed to ensure independence.

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