| by Prabhath Shabandhu
( December 10, 2012, Colombo, Sri
Lanka Guardian) The Parliamentary Select Committee (PSC) that probed charges
against Chief Justice Dr. Shirani Bandaranayake has found her guilty on three
counts. It concluded its proceedings and produced a report at such an amazing
speed that one wondered whether it wanted to finish its work before the end of
the world predicted by Mayans!
The seriousness of charges
against the CJ cannot be cited in justification of the extraordinary haste on
the part of the government in trying to impeach her and the methods used for
that purpose. The outcome of the disputed PSC process has failed to convince
the discerning public beyond doubt that the CJ is guilty as charged. Opinion is
divided on the much flaunted PSC findings. Similarly, the fact that there are
constitutional ambiguities about the removal of judges and the methods employed
by the government to impeach the CJ are questionable cannot be cited in support
of the argument that all charges against her are baseless.
 |
The county is faced with a very serious issue that must be dealt with carefully. It is not just a question of removing the incumbent CJ; the unfolding impeachment drama which, in our book, has a predictable end is fraught with the danger of rendering all judges of the apex court, both present and future, insecure.
For a government with a simple
parliamentary majority, removing a Chief Justice is as easy as shooting fish in
a barrel. The PSC process is only a façade; what really matters is how
Parliament votes. The J. R. Jayewardene government would have got rid of Chief
Justice Neville Samarakoon but for the intervention of his retirement and the
Ranil Wickremesinghe government would have sacked Chief Justice Sarath N Silva
had it not been dislodged by President Chandrika Bandaranaike Kumaratunga. This
time around the situation is different with the present government, impervious
to criticism and rational argument, being in a position to go the whole hog and
remove the CJ. But, in so doing it is sure to incur much international
opprobrium and have its democratic credentials severely dented. The
International Commission of Jurists (ICJ) has already fired a broadside,
claiming that [the PSC] 'hearing ignores international standards and violates
due process'. Government politicians may argue that their course of action is
consistent with precedents and constitutional provisions which, according to
their interpretation, permit what is being done to oust the CJ, but the fact remains
that they have used a flawed process knowingly that it is so. What it has done
is like using contaminated instruments in a delicate surgery; the operation may
be 'successful' but doomed will be the patient!
The ICJ has said in its
stinging critique of the impeachment motion: "The United Nations Human
Rights Committee, in its 2003 concluding observations on Sri Lanka, expressed
concern that the procedure for removing judges under Article 107 and the
complementary Standing Orders of Parliament was not compatible with Article 14
of the International Covenant on Civil and Political Rights." It is
puzzling why the then UNF government led by the UNP, which is critical of the
current impeachment process, did not heed the UNHRC concerns and act accordingly
then. Had a constitutional amendment been moved at that time in keeping with
the provisions in President Kumaratunga's 2000 Draft Constitution which was
shot down by the UNP and the JVP together perhaps it would have been ratified
unanimously as the SLFP was then an ardent defender of judges' rights. Both the
SLFP and the UNP let the grass grow under their feet. At least now, they must
get together and address the issue of removing judges and bring in
constitutional amendments that conform to international standards. The onus is
on the government to take the initiative.
However, let it be added in
the same breath that the proper process must be followed not only in removing
judges but also in appointing them. It is imperative that the political
authority be stripped of powers to appoint judges to the Supreme Court
arbitrarily. When the incumbent CJ was appointed a judge of the apex court, it
may be recalled, there was stiff resistance from senior Supreme Court judges
themselves and some of her present-day defenders even moved the judiciary
against her appointment albeit in vain.
The ruling party members of
the PSC which tried the CJ said on Saturday that the committee's findings were
open to scrutiny. The least that the government could do to prove its claim
that it has conducted a proper investigation is to let its critics including
international experts assess the PSC conclusions, without rushing to the next
phase of the impeachment process. What the government will do if independent
experts conclude that the PSC report does not pass muster is the question.
The county is faced with a
very serious issue that must be dealt with carefully. It is not just a question
of removing the incumbent CJ; the unfolding impeachment drama which, in our
book, has a predictable end is fraught with the danger of rendering all judges
of the apex court, both present and future, insecure.
(The writer, Chief Editor
of the Island, the Colombo based daily where this piece originally appeared)
 The Parliamentary Select Committee (PSC) that probe...){kind=link}