| by Kishali Pinto Jayawardena
There is
moreover a perceptible element of going beyond all norms of decency as
exemplified in the scurrilous letter tabled by a government MP in the House
last week which put the personal conduct of Sri Lanka’s first woman Chief
Justice in issue without any formal verification or substantiation. Is this the
purpose for which parliamentary privilege has been conferred upon these so
called peoples’ representatives? What outrage is this? It may well be warned
that henceforth, any judicial officer would be liable to be attacked in this
manner if such abuse of parliamentary privilege is allowed to go unremarked and
without collective protest.
We can only rue what this
means for the country, for the dignity of the legal system and for the
integrity of the judicial branch of government, sadly battered as it has
already been by the ravages of internal and external politicization
particularly in the past decade.
( November 04, 2012, Colombo, Sri Lanka Guardian) For those of us
who prefer to take refuge in comfortable illusions that this Presidency only
hides a velvet hand in an iron glove (to mischievously twist that proverbial
saying around), the motion of impeachment of the Chief Justice of Sri Lanka
presented by 117 government MPs to the Speaker this week should dispel all such
arrant foolishness.
Government’s
intention in subordinating the judiciary
Whether the
government goes ahead with the impeachment or not, let it be clearly said that
the final nail in the metaphorical coffin of the institution of the judiciary
in Sri Lanka is already hammered in. The fact that such a motion could have
been brought at a time when a Supreme Court decision on the Divineguma Bill is
due to be read out in Parliament, unequivocally spells out the government’s
intention in subordinating the judiciary to its complete and utter control.
 |
We can only rue what this means for the country, for the dignity of the legal system and for the integrity of the judicial branch of government, sadly battered as it has already been by the ravages of internal and external politicization particularly in the past decade.
Indeed, this
incident is similar to the country being informed by none other than the
President himself, of a complaint purportedly made by a lady judicial officer
against the Secretary to the Judicial Service Commission (JSC), which complaint
was in fact later denied by that judicial officer in the relevant inquiry.
These are both equally shameful attempts to degrade judicial officers in an
attempt to cow them into submission.
Public
mystified as to precise charges against Chief Justice
Unlike in the
case of the aborted impeachment motions against former Chief Justice Sarath N.
Silva brought by the opposition during 2001-2004, the contents of which related
to several counts of well documented judicial misconduct that were in the
public domain long before they were actually brought to Parliament, here the
public is kept in the dark as to what the charges against the incumbent Chief
Justice are.
All that we are
told by the Media Minister this week is that the Chief Justice has ‘challenged
the supremacy of Parliament.’ By logical inference, we are then supposed to
link this objection to the fact that the Supreme Court had quite properly, in
the initial Determination on the Divineguma Bill, insisted that the government
seek the approval of all Provincial Councils prior to bringing it before
Parliament? On that same logic, the Supreme Court will then stand accused of
that same charge each and every time that it rules that a Bill is inconsistent
with the Constitution. One may as well then do away with the Constitution once
and for all.
Or is it the
fact that one petition in the initial challenge to the Divineguma Bill had been
sent to the Secretary General of Parliament and not to the Speaker in terms of
Article 121 of the Constitution? Are these fit matters to base an impeachment
of the highest judicial officer of the country? This question is self
explanatory surely.
Incorrect
interpretation of the Constitution
Meanwhile, the
Minister of External Affairs has claimed that the very appointment of the
Secretary to the JSC was unconstitutional as he was the 29th in seniority in
the relevant list of judicial officers and that only a ‘senior most’ officer
should have been appointed. Quite apart from the fact that this objection
appears to have dawned on the Minister quite ludicrously only after all this
time had lapsed after the appointment, let us enlighten this former Professor
of Law who has only forgotten the basic tenets of the law but has also
veritably forgotten to read the Constitution as to what exactly the relevant
provisions stipulate.
Article 111(G)
of the Constitution states that ‘there shall be a Secretary to the Commission
who shall be appointed by the Commission from among senior judicial officers of
the Courts of First Instance.’ This Article was brought in by the 17th
Amendment to the Constitution which repealed the earlier Article 113 which
stated that ‘there shall be a Secretary to the Commission who shall be
appointed by the President in consultation with the Cabinet of Ministers.’
Quite rightly the 17th Amendment conferred this power of appointment on the
Commission itself. On this reading, the
appointment of the current JSC Secretary cannot be faulted. The term ‘senior
most’ cannot be read as a gloss into this constitutional provision purely for
political expediency and the Minister is himself in immediate breach of the
Constitution in attempting to do so.
Moreover, from
all accounts, the Minister of External Affairs is wrong not only on the law but
also on the facts in his description of the JSC Secretary as being 29th in
seniority. In any event, these objections appear not to have been applied to appointments
made by former Chief Justices, one of whom had indeed appointed his own brother
as the Secretary. Such objections therefore are clearly reserved peculiarly for
those judges who dare to challenge this government even in the most minimal
way.
An official
communiqué from the JSC may clarify the precise factual issue regarding the
seniority objection in the current context but in this environment of extreme
intimidation, such clarification seems unlikely. We can only wait and see what
the substance of the impeachment motion will disclose and which the Chief
Justice will be called upon to answer before a Select Committee of
Parliament.
The fundamental
propriety of a political forum determining the impeachment of a judicial
officer is meanwhile a different question altogether. It deserves to be dealt
with in depth elsewhere. However, the notion of parliamentarians sitting as
judges to decide the fate of the highest judicial official in the land impacts
unpleasantly on the notion of safeguarding the independence of the
judiciary.
Impact on the
entire institution of justice
Even given this
government’s flagrant flouting of the law at many different levels post war,
the impeachment of the Chief Justice takes the degeneration of the Constitution
to new depths. The contempt displayed for the law is patent. The threat that
this holds out to the entire judiciary is clear. From this essential truth,
there can be no retraction or withdrawal. In the absence of a spirited public
reaction emanating from judges, lawyers, professionals and the general public
against this most horrendous exercise of dictatorial power, we may well
consider Sri Lanka’s judiciary as being totally unable to perform in its
constitutional role in the foreseeable future.
Certainly it is
not a mere question of one individual as the Chief Justice being impeached. And
putting aside whatever questions that we may have regarding the political
process of impeachment of judicial officers, the question here is the context
of the impeachment, the vagueness of the charges brought and its clear link to
the intimidation of the judiciary when controversial determinations are
pending. This is the essence of the crisis that confronts us.
Moreover the
fact that the government is going ahead with this farcical impeachment process
at the precise time that it is called upon to answer with increasing severity
by the international community in regard to its lapses in respecting the Rule
of Law also signifies its profound contempt for such mechanisms. The
recommendations in the report of the Lessons Learnt and Reconciliation
Commission (LLRC) were all predicated on the basic foundation of an independent
judiciary. For example, its stress on accountability for enforced
disappearances and extra judicial executions flows from its assumption that the
country will have independent and fair minded judges who will be able to hear
and decide those cases impartially. If that element is taken out, then the LLRC
report may well be discarded.
 For those of us who prefer to take refuge in comfort...){kind=link}