| by JC Weliamuna*
( November 3, 2012,
Colombo, Sri Lanka Guardian) The Rajapaksha Regime, through its
parliamentarians, handed over an impeachment motion to the Speaker, the elder
brother of the President Rajapaksha against the first woman Chief Justice of
the country. 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
- that the 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
that the public should not lose sight
of, in relation to the present impeachment
attempt.
Background
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 in an
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.
Divineguma
Petition not being handed over to Speaker
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 had been 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.
Political
Motive
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 the JSC 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. Majula Tilakaratne 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
programmes in 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 Chandrika Bandarayaike
protected him by proroguing the Parliament once and then dissolving it
second time. With so much of allegations against him, Mr. Mahinda Rajapakse 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.
Conclusion
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.
*LLM, Constitutional Lawyer, Eisenhower
Fellow, Senior Ashoka Fellow, Former Director Transparency International Sri
Lanka, Convener – Lawyers for Democracy
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