| by Shanie
Let the Rule of Law prevail over the Rule of Men
Now this is the Law of the Jungle –
as old and as true as the sky;
And the Wolf that shall keep it may prosper,
but the Wolf that shall break it must die.
As the creeper that girdles the tree-trunk
the Law runneth forward and back —
For the strength of the Pack is the Wolf,
and the strength of the Wolf is the Pack.
In all that the Law leaveth open,
the word of your Head Wolf is Law.
Now these are the Laws of the Jungle,
and many and mighty are they;
But the head and the hoof of the Law
and the haunch and the hump is — Obey! - Rudyard Kipling (1865-1936)
( January 12, 2013, Colombo, Sri Lanka Guardian) Sri Lanka faces a period of unprecedented crisis, if the President does not act wisely over the attempted impeachment of the Chief Justice. It will be a crisis that we have brought upon ourselves quite unnecessarily. An attempt to impeach and remove the Chief Justice is a very serious step that should not be undertaken without careful thought. The fourteen purported ‘charges’ against the Chief Justice did not arise overnight, immediately after the Bench of the Supreme Court headed by the Chief Justice ruled on the unconstitutionality of provisions of the Divineguma Bill and the 2013 Budget and the subsequent refusal of the Judges to see the President in this regard. It was clear that the ‘charges’ were hastily prepared, not only because it contained many factual errors but also because the government would have found it difficult to sustain them in a court of law. It is not without significance that all independent individuals and organizations, that is everyone without any political agenda, have, without exception, pointed out that the whole impeachment process was deeply flawed.
The government politicians will not be able to convince the public that respected citizens, who are religious and civil society leaders like the Mahanayakes, Prof Bellanwila Wimalaratne Thera, Archbishop Malcolm Ranjith, Bishop Duleep de Chickera, Judge C G Weeramantry and Dr Jayantha Dhanapala are part of an international ‘conspiracy’ or are agents of the ‘LTTE rump’. Besides, professional organisations like the Federation of Chambers of Commerce, Bar Association of Sri Lanka, Federation of University Teachers’ Associations and independent civil society groups like the Civil Rights Movement and Friday Forum, none of whom can be accused of having any hidden agendas, have all, without exception, commented on the dangerous consequences for Sri Lanka as a nation if the government were to remove the Chief Justice under the current process.
The Judgements of the Courts
The Supreme Court has upheld the unconstitutionality of the process adopted by the government and the Court of Appeal has quashed the findings of the Parliamentary select Committee. The Supreme Court determined that Standing Order 78A under which the impeachment process was gone through was not law. Former Chief Justice Sarath Silva, whose role during and after his term as Chief Justice was, to say the least, controversial, appears to have commented that the Supreme Court did not take into account that the Constitution provides for an alternative mechanism for the removal of a Judge.
Article 107 (3) of the Constitution states that ‘Parliament shall by law or Standing Orders provide for all matters relating to ...., investigation and proof of the alleged misbehaviour or incapacity...’ The Civil Rights Movement pointed out in a statement issued on 15th November that what the Parliament did under these Standing Orders, was for the investigation and determination to be by a Select Committee of Parliament. Now, a Select Committee is composed of Members of Parliament and therefore part of the legislature. Our Constitution is specific about the separation of the Executive, Legislative and Judicial powers of the people. Article 4(c) of the Constitution states: ‘The judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established or recognised 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....’ The one and only exception in Parliament exercising judicial powers is, the CRM statement points out, as reqards its own privileges etc. Investigation and proof of misbehaviour or incapacity of a judge does not come within this exception. So when in Article 107 it is provided that ‘Parliament shall by law or by Standing Orders’ provide for the investigation and proof of the alleged misbehaviour or incapacity, Parliament cannot, by reason of the provision or Article 4(c) cited above, require that it be heard by a Select Committee of its own members.
Judicial power solely with judiciary
This was also the interpretation unanimously upheld by a five-bench Court headed by Justice Wanasundera in 1984 and which has been quoted before in this column. Justice Wanasundera in delivering the judgement referred to Article 4(c) and stated: "On a plain reading of this provision, it is clear the judicial power of the People can only be exercised by ‘judicial officers’ as defined in article 170, except in regard to matters relating to the privileges, immunities and powers of Parliament. I think no counsel before us disputed that these provisions indicate an unmistakable vesting of the judicial power of the People in the judiciary established by or under the Constitution and that Parliament acts as a conduit through which the judicial power of the People passes to the judiciary. Whatever the wording of Article 4(c) may suggest, there could be little doubt that at the lowest this provision, read with the other provisions, has brought about a functional separation of the judicial power from the other powers in our Constitution and accordingly the domain of judicial power (except the special area carved out for Parliament), has been entrusted solely and exclusively to the judiciary.’ The learned Judges of the Supreme Court last week have similarly held that the Parliamentary Select Committee procedure under Standing Order 78A was bad in law and did not conform to Article 107 of the Constitution.
Following the Supreme Court judgement, the Court of Appeal has quashed the findings of the Parliamentary Select Committee. If the President and the government believe in upholding the rule of law and the Constitution, they must have the humility and the good sense to accept these judgements and terminate further proceedings in respect of the findings of the select Committee. If they disagree with these verdicts, they could always instruct the Attorney General to file an appeal against the judgement for the case to be heard by a fuller bench or even the full Bench of the Supreme Court (without, of course, the Chief Justice who naturally will not sit on a Bench hearing her own case).
Consequences of disregarding Court rulings
But, brazenly flouting the court judgements can have disastrous consequences for the country. The law of the jungle as described in Kipling’s poem will replace the Rule of Law. Already, political lawlessness has reared its ugly head in our country. UPFA’s Kelaniya Pradeshiya Sabha member Hasitha Madawala was murdered recently. Earlier, UPFA’s Bharatha Lakshman was also shot dead. In both cases, they had fallen foul of fellow UPFA politicians who enjoyed greater political patronage. This week, in Jaffna, a staff member of the Uthayan newspaper, which is critical of the activities of a local UPFA politician, was waylaid and assaulted and his newspaper delivery vehicle and copies of the newspaper burnt. Several prominent persons, including two judges of the Court of Appeal who heard the Chief Justice’s writ application, have complained of receiving death threats. If the President and the government go ahead with disregarding the court rulings, as some government politicians have proposed, then the state of lawlessness will turn to greater anarchy and a breakdown in governance.
S L Gunasekera has said that no self-respecting person will accept the position of Chief Justice under the present circumstances when the Court has quashed the findings of the Parliamentary Select committee against the sitting Chief Justice. But the problem that our country faces today is that the moral and ethical standards of public life have deteriorated to such an extent that there are people who are prepared to accept public positions and become willing pawns of politicians. We have seen that in the case of newspaper editors, heads of statutory bodies and even of academic institutions. So the government nominee for the position of Chief Justice may have no self-respect, moral principles or ethical standards, but will still have no qualms about taking up the position irrespective of the contempt that he or she will face from a discerning public. S L Gunasekera has also said that he will on principle not appear as a counsel before such an appointee. It is possible that many members of the Bar may also take up that position. That will no doubt lead to a chaotic situation. But the situation will be compounded if fellow members of the judiciary also treat such an appointee with the same contempt.
The Friday Forum, under the signatures of Jayantha Dhanapala, Prof Savitri Goonesekere and Jayampathy Wickremaratne, have also warned of other consequences of unlawfully removing the present Chief Justice and replacing her with the government’s own nominee. Apart from shaking public confidence in our legal system, the legality of judgements delivered by a Bench of which the replacement Chief Justice is a member can be challenged even years later causing confusion and chaos in public and business affairs. Our international image which has already taken a beating will further suffer irreparable harm.
Options for the President
Irrespective of the parliamentary vote on the impeachment motion we hope the President will refrain from leading the nation to such a disastrous situation. He must uphold the Rule of Law by accepting the judgements of the Court. The Attorney General can lodge an appeal against the judgements and request a full Bench of the Supreme Court to hear the appeal; or the sounder alternative would be to frame new laws as proposed by the government in 2000, of which he was a part, setting out a new procedure for the removal of a Judge of the Supreme Court. It will take time but time will be a great healer for all sides. President Rajapakse will receive recognition, nationally and internationally, for acting like a statesman if he does that.
Rizana Nafeek
The news this week of the tragic fate that has befallen young Razeena Nafeek in Saudi Arabia has no doubt touched the hearts of Sri Lanka. The under-age child went to the Middle East to work as a housemaid so that she could support her impoverished family in Mutur. Her duties in the household where she was given employment apparently extended beyond being a housemaid. While minding an infant alone in the house, and while milk-feeding, the infant had died. No post-mortem was held to determine the cause of death. Nafeek was unfairly, by international legal standards, tried and found guilty of murder.
After the foul deed is done, there is little to gain in blaming anybody at this stage. But we need to pay tribute to the Asian Human Rights Commission in Hong Kong which took an interest in Nafeek’s case, raised money for her legal expenses and followed up her case throughout her period in the death row. It was also the AHRC which warned us of her imminent execution while reports were being released in Colombo of her imminent release! We hope some organisation will take the initiative to improve the quality of life for Nafeek’s family and the education of her siblings, for which cause young Razeena Nafeek sought employment in Saudi Arabia.
