| by Kishali
Pinto-Jayawardena
( November 27, 2012,
Colombo, Sri Lanka Guardian) The government’s
brushing aside of the Supreme Court’s entirely appropriate order this week requesting
Parliament to desist from continuing with the impeachment of the Chief Justice until
a final determination was handed down in petitions being heard filed before it,
was arrogant but unsurprising.
The Bench spoke to the
comity that must exist between the judiciary and the legislature for the
greater good of the country. It cautioned that this would be prudent as well as
‘essential for the safe guarding of the rule of law and the interest of all
persons concerned.’
But its words were in
vain and at the close of the week, Sri Lanka’s Chief Justice was compelled to appear
in person before the Parliamentary Select Committee (PSC) in the formal
commencement of a politically driven impeachment process.
Neither
purse nor sword but only judgment
American founding
father and political philosopher Alexander Hamilton’s potent and powerful
warning that ‘the judiciary has no influence over either the sword or the
purse, it may truly be said to have neither force nor will but merely
judgment…’ ((Federalist Papers, No 78) is therefore singularly apt for the
dilemma in which Sri Lanka finds itself today.
The executive holds the
sword of the community while the legislature commands the purse. In contrast,
the judiciary is dependent solely on its judgment and integrity. If the
integrity of the judicial branch of the State is destroyed through executive
action or its own complicity, then all is lost. The executive is free to
trample as it wishes on the judiciary, the law is then unseated and justice is
thrown proverbially to the wolves.
In the present
impeachment of Sri Lanka’s Chief Justice, it does not require remarkable wisdom
to determine as to who will be the winner and who the loser in a head-on clash.
This is possibly why Thursday’s order by the Supreme Court wisely sought to
avert an open confrontation with the legislature at the outset itself.
Commendable restraint was shown, transcending a most particular anger that must
naturally be felt by judicial officers when the head of the judiciary is
impeached in this way. Now that this request has been abruptly brushed aside by
the government, the consequential judicial response remains suspenseful though
it is not difficult to imagine a plea of futility being put forward by the
Attorney General in later hearings.
Significant
differences with recent precedent
Notwithstanding, this
week’s measured ruling contrasts sharply with an earlier order of the Court
delivered in 2001 when an impeachment motion lodged by the opposition was due
to be taken up by a Select Committee against a former Chief Justice, Sarath
Silva. In that 2001 order, interim relief was granted staying the appointment
of a Select Committee with the judges opining that a stay was warranted due to
a purported exercise of judicial power by the legislature. This view was
peremptorily dismissed by the late Anura Bandaranaike, then Speaker of the
House who reasoned in copious detail that the judiciary had no business
interfering with the constitutionally mandated parliamentary process of judicial
impeachments. Fortuitously, (for that former Chief Justice), Parliament was
thereafter dissolved by former President Chandrika Kumaratunga, preventing any
further action.
However there were
significant differences between that impeachment motion and the current unseemly
fracas. Charges against that former Chief Justice relating to abuse of judicial
power had been ventilated long before 2001, causing a veritable public scandal
as it were. That motion for impeachment was brought by the opposition and not
by the government. That Presidency’s entire effort was, in fact, to prevent the
impeachment being brought against that former Chief Justice for reasons that are
well in the public domain.
Comity
must exist between the judiciary and executive
In contrast, what we
have now is a hastily drafted impeachment motion, replete with mistakes but driven
by the formidable might of this government with accompanying full scale abuse
of the judiciary by the state media. A greater contrast therefore cannot be
evidenced. Rather than the executive safeguarding a Chief Justice against whom
allegations of judicial misconduct had been leveled, what drives this present
process is executive pique if not outright anger at a series of adverse
Determinations by the Supreme Court on key Bills. The move is against the
entirety of the Court for a Determination is not an opinion of an individual
judge but a binding decision of the entire Court. The Court’s response this
Thursday illustrates its recognition of the danger that it faces collectively. Indeed,
given the peculiar context in which its intervention was sought, this was a far
more appropriate ruling than the stay order handed down by a previous Court in
2001.
Whatever this may be, this
judicial stand must be unequivocally supported by the Bar and by the citizenry.
The Bar has bestirred itself recently in passing a resolution requesting that
the President reconsider the impeachment of the Chief Justice. Contempt of
court applications may be filed against an abusive state media. But its leaders
need to question themselves in good conscience as to whether merely passing
resolutions and engaging in private meetings with politicians and parliamentary
officials fulfils the heavy responsibility vested in them given the
extraordinary threats that face the country’s justice institutions?
An
enchanted complicity in the executive’s attacks on the judiciary
Half-hearted responses
to the instant crisis only expose the credibility of the leadership of the
Bar. Surely have we not learnt enough
from the past? After all, the very omissions and commissions of the Bar were crucial
factors that led to this crisis in the first place. As appreciated by the inveterate
satirists among us, some of these legal worthies jostling to prove their bona
fides against the impeachment were themselves thoroughly implicated in the
ravages of justice that occurred during the previous decade, after which, it became
unarguably much easier for any politician to call up a judge and exert
inappropriate pressure.
We also saw lawyers vehemently
arguing not so long ago in defence of presidential immunity in order to shield
the President and his minions from the reach of the law. It is only now that these
worthies appear to have woken up to realities. One is tempted to ask whether
they were cast under a spell, like the enchantment of old which helplessly bound
Rapunzel, into conscienceless complicity with the executive all this while.
Furthermore, seniors of
the Bar accepted unconstitutional appointments by the President in defiance of
the 17th Amendment and steadfastly looked the other way when the 18th
Amendment was passed. The grave historical responsibility of the Bar in this
regard can only be mitigated by unconditionally courageous actions now. That
much must be emphasized.
This
Presidency should take heed
This
impeachment is destined to leave us with a hollow shell where the authority of the
law once proudly possessed centre stage. Black coated members of the legal fraternity
will prance before courts in a bitter mockery of the legal process.
This is what is desired
perhaps by those in the seats of authority. But the best laid plans of mice,
men and authoritarian political leaders drunk with insatiable power may still
go awry. The steady gathering of public empathy for a Court under siege is now noticeably
under way. Undoubtedly this Presidency should take heed of bitterly dissenting
voices, at times coming from the very support base that brought this
administration to power.
To ignore these voices
would be to imperil its ultimate political survival. Make no mistake about
that.
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