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by Kishali Pinto-Jayawardena
( December 16, 2012,
Colombo, Sri Lanka Guardian) Is the Constitution or
the President’s conscience paramount in deciding the notion of legality in Sri
Lanka?
Abandoning
the courts and the law books
A person’s conscience
is of course, variable. A Presidential
conscience cannot certainly be any different. In contrast, the very core of the
concept known as the Rule of Law is its fixed application to all, the powerful
and the powerless, a Chief Justice and a common criminal. If we are to be a
country governed by the conscience of whichever Head of State who is in office
at a particular time, then we may as well abandon our courts, our law books and
our self respect as a people bound by the law.
These matters spring
immediately to mind in the wake of President Mahinda Rajapaksa exerting his
considerable thespian talents this week to claim that, despite the government
driven impeachment process finding Sri Lanka’s Chief Justice culpable on
certain charges, he would act ‘according to his conscience’ and appoint an
‘independent committee’ to further inquire into the findings handed down by a majority
of the Parliamentary Select Committee (PSC).
Undeterred and unsurprisingly,
his detractors promptly argued that this signified a Presidential double–take and
an admission that the PSC process, driven by his own government, was flawed. These
gleeful reactions then led to the sorry sight of the President tying himself up
in proverbial knots in trying to explain in one breath that he had all
confidence in his Select Committee members whilst saying that the proposal of a
further inquiry was mere ‘procedure’, whatever that meant.
Legal
justice required and not executive mercy
But before we venture
to address this rider regarding an ‘independent committee’, certain important
questions need to be examined. And we return to our original question as to
what is paramount, the Constitution or the President’s conscience? As a wag
shouted with pertinent purpose during the 2nd Special General Meeting
of the membership of the Bar Association of Sri Lanka convened on Saturday
December 15th unprecedentedly within two weeks of the last such
Meeting, what needs to be shown is legal justice for the Chief Justice and not
mercy from the executive. This is a crucial distinction that needs to be maintained
at all costs
First
and foremost, has the Chief Justice has been impeached in a manner that is
constitutionally proper? To be clear, we are not talking here of the
constitutional propriety of Members of Parliament inquiring into the
misbehavior or incapacity of a superior court judge over which much hot air has
been wasted since the beginning of this fracas. The issue is more basic and far
simpler. It goes to the roots of a fair inquiry which underwrites all the
rights that the Constitution guarantees us. A person is therefore innocent until
proven guilty by an impartial inquiry before a competent body. These are fair trial and natural justice rights which in the context of the Sri
Lankan law, have been expanded to span the entire breadth of the criminal, constitutional
and administrative law spheres. For decades, the courts have themselves been
applying these rights to all categories of persons, even common criminals. In
particular, appointments to, and removal from public offices must be open, fair
and accountable. As much as public officers can claim these rights, surely judicial
officers of the superior courts are similarly entitled when impeachment motions
are lodged against them? To argue to the
contrary would be an absurdity.
Violation
of all rights of due process
So let us examine as to
whether the PSC process which found Sri Lanka’s Chief Justice culpable, satisfied
these basic requirements. The PSC operated sans due and proper procedure, the
majority of its members denied her the right to cross examine adverse witnesses
and claimed that oral testimony would not be called, only to promptly go back
on their word once the Chief Justice and her lawyers withdrew from the
proceedings after being repeatedly insulted. They refused to allow her more
time to answer allegations contained in a humongous bundle of documents handed
over to her to which she was peremptorily ordered to respond within the next
day.
This is quite apart
from the vulgar abuse leveled against her by some government members of the PSC
as detailed in a letter issued by the Chief Justice through her lawyers, copies
of which were passed around at the BASL meeting this Saturday. Unconvincing denials
by the Chairman of the PSC in that regard carry no credence. Even with the
Chief Justice requesting that the hearings be held in public, this was not
allowed. Up to now, the purported findings of the majority members of the PSC have
not been furnished either to her or to the opposition minority members of the
PSC who also walked out in protest.
Notwithstanding this excruciatingly
painful spectacle which is undoubtedly without parallel in the Commonwealth, we
had the Deputy Speaker of Parliament protesting that the Chief Justice had been
afforded all facilities and had been even offered lunch at the House. To what
depths of profound farce have we descended to? Are we expected to weigh the
offer of a lunch as against the basic requirements of natural justice in the
scales of equity?
Predictably the Chief
Justice had no recourse but to issue letters through her lawyers to the general
public, describing the humiliation that she had undergone and the indignities
that she had been subjected to. It is unfortunate that President Mahinda
Rajapaksa, in this week’s meeting with national editors, chose to rebuke the
Chief Justice for making public statements under the quite mistaken impression
that ‘she is a public servant’ (Daily Mirror, December 14th 2012). Yet
the President, being a lawyer himself, should be quite aware that judicial
officers are assuredly not public officers. In any event, his lawyers, assuming
that they possess the necessary competence which is by no means a given, should
surely advise him to that effect.
An
unholy mess of the government’s doing
If
the Government thought that they could wrap up the inquiry against the Chief
Justice clothed in a garb of secrecy, frighten off independent commentary and
generally enter into adverse findings without critique, it was sadly mistaken.
Indeed, these clumsy attempts have led to far more opposition than it ever
bargained for, ranging from the Congress of Religions to the heads of religious
bodies and judicial bodies both here and in the Commonwealth. Moreover, the
activism displayed by Sri Lanka’s Provincial Bar Associations has been
astounding. The President of the Bar demonstrated deft and highly commendable handling
of the record numbers that turned up this Saturday, culminating in the passing
of three resolutions including an unequivocal assertion that the Bar would not
welcome a new Chief Justice if this unjust impeachment is proceeded with. Anti-impeachment
contenders dominated the meeting to the extent that an opposition
parliamentarian and signatory to the impeachment motion who tried to parrot the
government line, found himself unable to proceed and was forced to retreat in vastly
amusing disorder.
This shameful
impeachment cannot be reversed through a supposed ‘independent committee’
appointed by the President. Indeed, given the circumstances, it is hard to
believe that any person of erudition or integrity will agree to serve on it.
The issue can only be resolved through strict adherence to a new inquiry
process adhering to constitutional guarantees of fairness that the Chief
Justice is entitled to, through amendment of the relevant Standing Orders if
needs be.
It is this minimum that
should prevail and not reliance on the President’s conscience, an uncertain
force as this must undeniably be. Let us acknowledge this essential truth, even
at this late juncture.
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