It appears that the Government of Sri Lanka is in a mighty hurry to “get rid of the Chief Justice” so that a major obstacle for government’s capricious track is removed. With the handing over of the impeachment, the government has signaled to the entire public service and judiciary two rules - thatthe Regime is superior to the Law and that Rule of Law does not exist in the country. This short article is written to bring out several vital issues thatthe public should not lose sight of, in relation to the present impeachment attempt.
The events leading to the impeachment demonstrates that the move to impeach the CJ is nothing but a political witch-hunt. The tension between judiciary and executive started with Minister Bathirdeen’s unsuccessful attempt to influence the Magistrate of Mannar, resulting inan attack on the Magistrate’s court. Then there were attempts by the Executive to influence the Judicial Services Commission (JSC) on disciplinary matters, where the JSC stood firm.
The JSC, through the Secretary, in fact issued an unprecedented statement on 12th September 2012 stating that there is interference with the functions of the JSC. Everyone knew by whom. Soon thereafter, the JSC Secretary was brutally assaulted in a typical - state sponsored style attack. Divineguma Bill, which takes away some of the powers of the Provincial Council and concentrated power of rural development in the hands of a Minister under an unusual legislative scheme, came up for review in the Supreme Court. Chief Justice presided over the relevant Bench. The Minister concerned was another Brother of the President. The decision has ignited so much of unfair criticism against the Court. Threats of impeachment emerged with this case! Discharging a constitutional function or a duty (in this case protecting the judiciary against unlawful interference and delivering a judgment) cannot be the basis for any impeachment.
DivinegumaPetition not being handed over to Speake
In an unusual move, the Speaker of Parliament made an unprecedented statement to the effect that the authority of parliament was undermined by not submitting a petition (filed by one of the petitioners in the Divineguma Supreme Court challenge) to the Speaker and instead submitting to the Secretary General of Parliament.Article 121 of the Constitution states that once a petition is filed, it shall be delivered to the Speaker. Delivered by whom? By the petitioner and not by the Court. However, when the objection was taken on one of the three petitions, the Supreme Court overruled the objection. Even if the Supreme Court upheld the objection, still the Court would have continued with the remaining cases. Under our constitution, the Supreme Court has authority to interpret the constitution and, in my view, the Court rightly rejected the objection. This issue has blown out of proportion and the Speaker made a statement on this! In my view, by interpreting the Constitution, the Supreme Court has not undermined the authority of the parliament but given effect to the Constitution. Can this be a basis of an impeachment? Certainly not, because interpretation of the constitution is an exclusive power vested with the Supreme Court.
Investigation against CJ’s Husband and not against others?
Husband of the Chief Justice hadbeen appointed by the Government as the Chairman of National Savings Bank, a state bank and later resigned, after an attempted share scandal. This is a statutory board consisted of all political appointees - including the President’s astrologer. Only information in the public domain is that the anti-corruption commission conducted an unusual fast track investigation into the matter and a case has been filed against him in the Magistrate’s Court. Person with proper senses know that a share scandal of that magnitude cannot take place without the participation of “higher-ups”. Who are the beneficial owners? No investigations into those who were involved with it.
No one can say that a scandal should not be investigated but when an selective investigation is done, that raises serious issues on the investigation itself. Every time when the Divineguam case came up in court – a dramatic event takes place on CJs’ husband’s investigation. Once he was called before this Commission and then before the CID. When the Divineguma case came up last, case was filed in the Magistrate’s Court. Is there any doubt that this exercise was intended to twist the arm of the CJ? We all know that the law enforcement mechanism is totally politicized in Sri Lanka today – the government can manipulate a case against any one and can clear any corrupt official, if they want. In any event, the issue of the husband cannot be a sudden wake up call for the government to clear the judiciary or to restore the lost integrity in share market.
No Charges in the Public Domain?
Motion to impeach a judge of the Supreme Court is a serious matter that is permissible on limited grounds. Analysis of any impeachments of any judge of any country will show that the public are generally aware of the allegations - before those allegations are formally brought up. For example, allegations against former CJ Sarath N Silva were known and public discussed about them. However, until today, the public are not aware of the allegations against Chief Justice Shirani Bandaranayaka. Such situation is possible, in my view, only if the impeachment is totally politically motivated with impunity.
There is overwhelming evidence (or reasonable and logical inferences) to establish that the government was involved in the attack on JSC (and physical attack on its Secretary) and political mudslinging on the CJ. Take the example of the recent adjournment debate in Parliament on JSC. The Minister of Foreign Affairs Prof. G.L. Peiris virtually justified the attack on theJSC on the basis that its Secretary was appointed contrary to the constitution. He said that in terms of the Constitution, only the senior most member of the minor judiciary can be appointed as the Secretary of the JSC and the present Secretary was 29th in the seniority list; and therefore should not have been appointed as Secretary. This is absolutely incorrect and false.
There are no such provisions in the Constitution. On the other hand, to the best of my knowledge, Mr. MajulaTilakaratne was brought in as a Deputy Secretary by the previous Chief Justice Asoka Silva, who had appointed his own brother as the Secretary, though he was not the most senior. The then Chief Justice, soon after retirement, became an advisor the President! Many others previously were appointed as Secretary to the JSC, though they were not senior at all. At this Parliamentary Session, an attempt was also made to table a mudslinging and derogatory “manufactured document” on CJ. Such conduct is unheard of in Commonwealth parliamentary traditions. The Government’s propaganda machine is the other indicator to judge who was behind these attacks. Several political programmesin State media were designed to criticize the judiciary. All this moves reveals Government’s mala fides.
Unconstitutional Exercise of Judicial Power by Parliament
There is a vital Constitutional issue on whether the Parliament can “hear” the charges against the Chief Justice. Can the Parliament be converted into a court to try an accused? As we know, it is the judiciary that can hear cases and not the parliament – whether it is against the President, judge of a court or any other. Please read carefully the following paragraph in the Constitution (Article 4(c) of the Constitution):
“the judicial power of the People shall be exercised by Parliament through Courts, tribunals, and institutions created and established, or recognized by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, wherein judicial power of the People may be exercised directly by Parliament according to law.”
It is clear that the cases are to be decided by courts and institutions that have been established to adjudicate judicially. However, parliament can also do it in respect of ONE type of cases; i.e. matters relating to breach of Parliamentary privileges and Nothing Else. Impeachment inquiry of a judge is not one of them. And therefore, the Parliament cannot hear and determine on whether a judge is guilty of misconduct or not.
Let us also examine the other relevant provision in the Constitution in relation to the impeachment of a judge. Article 107(2) ensures that a judge shall hold office during good behavior and shall not be removed, except by an order of the President made after an address of Parliament on the ground of proved misbehavior or incapacity. Article 107(3) states as follows:
“Parliament shall by law or by Standing Orders provide for all matters relating to the presentation of such an address, including the procedure for the passing of such a resolution, the investigation and proof of the alleged misbehavior or incapacity and the right of such judge to appear and to be heard in person or by representative.”
The Parliament has not passed a law in that regard but by Standing Order 78A, a procedure has been introduced. The following features are important for this debate:
(i) Once a resolution is tabled in the Order paper, the Speaker shall appoint a select committee of parliament, consisting not less than 7 MPs to investigate and report to parliament on the allegations of misbehavior or incapacity set out in such resolution;
(ii) the judges is entitled to legal representation before the Select Committee
(iii) the select committee shall within one month conclude the inquiry and if not seek further time to complete it from Parliament
(iv) Proceedings are held in camera until a finding of guilt is reported to Parliament by the select committee.
The procedure laid down in the Standing Order seems to suggest that the Select Committee is serving as a judicial body to find a person guilty! This is therefore contrary to the Constitution – Article 4(c) and in my view ultra vires the Constitution.
Different to Two Previous Impeachment Attempts
Unlike previous impeachment motions, present one is unique. Motion to impeach Hon. Neville Samarakone CJ took years as the Select Commission did not want to rush through and parliament readily extended the period. Samarakone CJ had the best representation in the form of S. Nadeson QC. The Opposition fully supported him against the impeachment. Media was not under the government control in the same way we experience today. The Bar was united and strong. Then came the two impeachment moves against Sarath N. Silva CJ. In my view, there were enough and serious allegations against him but the President ChandrikaBandarayaike protected him by proroguing the Parliament once and then dissolving it second time.
With so much of allegations against him, Mr. MahindaRajapakse was among those who openly protected him. Part of the Opposition UNP also supported Silva CJ, based on personnel relationships. The Bar was indirectly controlled by Silva CJ through his connections and intimidatory tactics. However, present Chief Justice does not have such open support from politicians as she only discharged official functions with a different approach. She is quiet and secluded.The Bar is presently divided and Bar Association lacks its excellence and leadership. Even lawyers found it difficult to meet her, except on strictly official matter. There are no issues of her integrity. On the other hand, the state media and part of the Bar is fully controlled by the regime.
Impeachment is not a remedy for private wrongs; it's a method of removing someone whose continued presence in office would cause grave danger to the nation(Charles Ruff). But proposed impeachment of CJ Bandaranayake is not a danger to the nation but only to a few in the regime, which believes that her presence is a stumbling block for their arbitrary rule. The nation cannot do away with the basic principles of justice in impeachment proceedings. Will Chief Justice of Sri Lanka have a fair hearing in her own country? From LLRC to UPR proceedings and from international conventions to the basic human rights, every one urges the Government of Sri Lanka to uphold Rule of Law. The Government responds to international community with one statement; “Justice and fair play is guaranteed in Sri Lanka and therefore there is no need for independent investigations into alleged human rights violations externally”. The way how the Chief Justice is treated by the government (and its highly political state mechanism)will tell to the world that Sri Lanka cannot guarantee basic human rights even to its own Chief Justice.
The writer is a senior lawyer and former head of Transparency International in Sri Lanka and convenor of Lawyers for Democracy.