Kishali Pinto Jayawardene
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.
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.
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.
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.
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.
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.