In Dealing with the Impeachment Motion

| by Laksiri Fernando

( November 14, 2012, Sydney, Sri Lanka Guardian) In dealing with the impeachment motion against the Chief Justice, it is correct for the opposition not to stoop into dishonourable politics as the government conducts its affairs inside and outside Parliament, on the subject, especially through the government controlled media. There are charges, unfounded or not, that need to be carefully investigated. If the Parliamentary Select Committee Investigation (PSC) becomes purely a political battle, between the government and the opposition, that is not what the constitution or the remaining democracy in this country would expect. Otherwise, the political culture of the country and the present sorry state of our many institutions would become completely irreparable.

This is a good lesson for those who ask, accept and hold government appointed positions. Some are my friends. I have luckily escaped the predicament. Under normal circumstances, these are perfectly normal appointments and a way of contributing to the national development.

But at the same time, there is no need for the opposition parliamentarians and others to keep completely silent on the subject, other than those who are nominated to the PSC. There are political dangers looming behind the impeachment initiative to completely scuttle the independence of the judiciary and make it an instrument of the executive. This is an extension of the 18th Amendment and the Executive Presidential System. The people in the country should be educated and we ourselves should get educated through the process. The indications so far are alarming.

According to CA Chandraprema, who perhaps reads the current ‘Mahinda Chinthana’ correctly, the “government means business.” He also adds “in Sri Lanka – every battle, whether it be with terrorists, the Supreme Court or with foreign powers have to be fought to the finish.” What is expected with the Supreme Court is apparently a Nanthikadal! These words should not be taken lightly considering what happened last Friday at the Wellikada remand prison; 27 dead. His suggestions on Supreme Court reforms are more dramatic than his political rhetoric.

“Shirani Bandaranayake made history by being the first woman Supreme Court judge and the first woman chief justice. She is about to make history again and how! What this shows is that no one should be appointed to a body like the Supreme Court and holds that position for more than five years. Shirani Bandaranayake has already been on the Supreme Court bench for far too long. Furthermore a position on the SC should be offered only to those with long years of experience at the bar or the bench and should not remain either as a Supreme Court judge or the chief justice for anything more than five years.”

Apart from the obvious contradiction between “long years of experience” for appointment and not “more than five years” to hold office in the Supreme Court, the suggestion is a clear prescription for complete politicisation of the Supreme Court, let alone the judiciary in general. It is almost a universally accepted democratic principle today that what is of paramount importance is the independence of the judiciary. That is why a life tenure or tenure until retirement is prescribed. Impeachment is a device to correct any adverse consequence in the process due to ‘misbehaviour or incapacity.’ In some countries ‘crimes’ or ‘treason’ are the terms used and in fact requires a two-thirds majority to pass an impeachment motion after independent judicial inquiry.    

There is no question that the present Chief Justice had compromised her position by allowing her husband to accept and hold government appointments in the past, not one but several. But the main culprit in this predicament is the government itself. That kind of an appointment for a spouse of a Chief Justice or a Supreme Court Judge could be made only by a government which doesn’t believe in the independence of the judiciary. ‘Real politic’ is not an excuse. There should be proper rules for government appointments, without making them merely political. Perhaps the appointment of the husband was done purposely as bait and to keep her position compromised as much as possible. In my opinion, at least now the Chief Justice should admit this mistake openly. Or her husband can make a public statement without implicating of course the ongoing bribery inquiries against him.

When the bribery charges were raised against her husband, whether he is innocent or not, the Chief Justice could have gracefully resigned, because the first mistake was already committed. That was unfortunately not done. These and related matters were raised impartially by Uvindu  Kurukulasuriya before. Holding onto positions some way or the other whether politicians, government officials, academics or judicial officers is not a good practice for democracy and transparency or as a personal principle. It is my personal impression that the bribery charges are vindictively framed up. I may be wrong. The courts have no option but inquire. Only the Chairman of the NSB cannot be responsible when there is a Board of Management collectively responsible. And my experience as a Director at the Colombo Stock Exchange (CSE), reminds me that these kinds of large scale share transactions cannot happen without the government approval or prompting. All these are closely monitored and even manipulated. However, if something goes wrong, then they find scapegoats and in this case it is more than a scapegoat. This is a punishment mainly for the spouse going out of line of the government policy.

This is a good lesson for those who ask, accept and hold government appointed positions. Some are my friends. I have luckily escaped the predicament. Under normal circumstances, these are perfectly normal appointments and a way of contributing to the national development. But we don’t seem to live under normal circumstances. The government is suffering from the Nanthikadal mentality. The government appears to keep a close tab on every important and vulnerable person in the public service and the judiciary. Foreign Service is not spared. The government or actually the ruling circle would give enough rope to deviate from normal practices. Their instructions over the phone would not be reliable. Then they will hound behind you if you fall out of line. Financial embezzlement is the most effective charge to destroy a person’s credibility, whether proven or not.

Luckily for the Chief Justice, she can go before a Parliamentary Select Committee and the best strategy would be to place everything openly and frankly before the Committee, including any mistake in the past. The public would particularly like to know the political pressures coming from high offices on the functions of the Judicial Services Commission.

The charges against her, in my opinion, are not carefully formulated: some are frivolous and some are simply vindictive. There so many inaccuracies. She has already answered through her lawyers the charges against her bank accounts and financial matters. Many have commented on other charges and the political motives behind the impeachment are too naked. However, the impeachment procedure in Sri Lanka is flawed. It is simply incorrect for a simple majority of Parliament to impeach a higher judicial officer, while this is not particularly the case for the President. The composition of the PSC is lopsided and the procedure unclear. It would be a struggle for the opposition to try and rectify these matters.

There is no reason for her to resign now, however. Her integrity in respect of the Supreme Court decisions remains intact and those have never been unilateral decisions. While it is her responsibility to defend herself in respect of the specific charges with courage and confidence, it is up to the Opposition to defend the Independence of the Judiciary. What is at stake most is the independence of the judiciary. This is also the task of the Sri Lanka Bar Association and the civil society. The politicization of the judiciary should be prevented from all sides. The integrity of the position is already damaged by the last two chief justices, one becoming an advisor to the President and the other becoming an associate of an opposition politician. Compared to those two, the present CJ appears to belong to a rare species. The judicial officers should refrain from politics, in office and even after.