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The judiciary under siege
View(s):By Vijaya Nirajan Perer
The High drama enacted in the famed halls of Parliament, and the dignified precincts of the Superior Courts the last several weeks , had reached its crescendo and subsided but, the unresolved issues arising from the apparent clash between the Legislature and Judiciary have spilled over to the new year.
In view of the mass protests which saw the lawyers take to the streets, and counter demonstrations by Golden Key investors, three wheel drivers and others, the public demands in one voice: Resolve this issue! Prevent a head-on clash between the two pillars of democracy and prevent anarchy!
This sorry situation which could have been avoided if the Government foresaw the imminent dangers involved in its gamble, should be an eye-opener even at this late stage before Parliament debates the “Report” of the Select Committee to inquire in to the allegations against Chief Justice Shirani Bandaranayake.
This is an attempt to review, reflect and re-assess objectively the pros and cons of the impeachment motion, the appointment of the Select Committee, the procedure adopted and the basis of its “findings”.
No mention would be made here either to the contents of the impeachment motion and the report of the Parliamentary Select Committee thereon, as it is pending debate, but it is fervently hoped that the Honorable Members of Parliament would, in the ensuing debate on the PSC Report tap their political conscience and decide individually without passively heeding the party dictates, They should do so honourably without fear or favour, as they are the ultimate Judges of this critical national issue.
Was the Impeachment motion necessary?
It is a public secret that this impeachment motion was politically motivated. The Govt. may have been displeased or angered by several decisions of the SC, including the decision on the Divineguma Bill and the Appropriation Bill.
It is true that decisional mobility is a sine qua-non for development. This was the main reason why J.R. Jayawardene opted for “Executive Presidency”. However, he shrewdly manipulated this concept to suit his political agenda in the passage of the 1978 Constitution.
If the “Divinegma Project” was a “master plan” for development, and solely intended for the upliftment of the poor masses, the President should have referred to the People by referendum under Article 85(1) of the Constitution or dealt with this “matter which in his opinion is of national importance” under Article 86.
Surely, the framers and prime movers of this Bill would have been astute enough to anticipate the controversy and the opposition that will be generated by this Bill, and referred same to the People by Referendum and got it approved with the 2/3 steamroller majority it commands at present.
In this way, the controversial SC ruling could have been totally avoided, and the Bill passed directly by the People over the heads of Parliament.
The meaning of terms “misbehaviour” and” Incapacity”
Article 107(2) sets out the only grounds for the impeachment of the Chief Justice and judges of the superior courts would be “misbehaviour” or “incapacity” .
In Sri Lanka though we have a few past experiences of the impeachment of a President (late Mr. Premadasa) and two Chief Justices ( Neville Samarakoon) and (Sarath Nanda Silva). Mr. Samarakoon went on retirement before the P.S.C. could conclude its inquiry and Mr. Silva was fortunate to have averted the humiliation, as Parliament was dissolved before the impeachment motion was even accepted by the Speaker of Parliament.
However, in the Impeachment motion against Mr. Silva, there were several allegations of “misbehaviour” which obviously involved “moral turpitude”.
The term “misbehaviour” would necessarily involve an element of “criminality” and deemed an “offence” which according to the long standing practice followed by democratic nations have to be proved by the complainant or prosecutor.
Sri Lanka’s Constitution provides in the clearest terms;
Article 13(3): Any person charged with an offence shall be entitled to be heard in person or by an Attorney at Law, at a fair trial by a competent Court.
Article 13(5): Every person shall be presumed innocent until he is proved guilty.
These are provisions asserting and safeguarding the fundamental rights of a citizen which obviously would avail to the C.J. as well.
With regard to the ground “Incapacity” recourse should be had to the only previous experience we have; the impeachment of late President R. Premadasa.
Article 38(2)(a): provides that the notice of a Resolution to remove a President who is permanently incapable of discharging the functions of his office by reason of mental of physical infirmity…”
The interpretation of “incapacity” then should be taken with reference to the above provision. That is “permanent incapacity of discharging the functions of his office”.
Mere “unsuitability” to hold that esteemed office would not by itself amount to “incapacity” provided for in Article 107(2).
The issue of “unsuitability” of the CJ to hold office should have been canvassed, urged and finally decided at the time of her appointment’
The non-response to Court notices
This remains a highly debatable point.
As urged by senior MPs and pro-Govt. academics Parliament is sovereign as the sole and Supreme Law making body (in the sense of the legal concept borrowed and adopted from the British Constitution ).
On the other hand it cannot also be argued that the Judiciary is Superior to Parliament.
Through the basic principle of “Separation of Powers” in the modern sense, these three organs of Government- the Legislature, Executive and the Judiciary interact with each other within the limit of their main functions, without encroaching on the other’s domain, within a workable system of checks and balances.
However, it has to be unhesitatingly accepted that it is only the Supreme Court in terms of Article 125 that has the sole and exclusive Jurisdiction to “ hear and determine any question relating to the interpretation” of the Constitution”.
In the Exercise of this Jurisdiction, the S.C. may direct that further proceedings be stayed pending determination of such question.”
Acute differences of opinion have surfaced arising from the fundamental rights application filed by the BASL against the Impeachment of the C.J. and several writ applications by citizens and civil rights movements in the CA. Further, this situation has aggravated by the writ application filed by the Chief Justice herself in the Court of Appeal against the report and the implementation there of.
These applications have been entertained and leave granted to proceed and the SC had further directed the CA to issue notices on the Speaker of Parliament, members of the PSC cited as respondents.
Speaker Chamal Rajapakse , citing the Historic Ruling of former speaker Anura Bandaranayke declared that the purported notices,” issued on me (speaker) and to the members of the select Committee are a nullity and entail no legal consequences.”
Following this ruling, Deputy Speaker Chandima Weerakkody declared that the ruling of the speaker applies to the subsequent notices issued by the CA as well.
However, it should be noted that the background facts in the present case should be distinguished with those of the former.
Former speaker Bandaranayake was responding to an Interim Order to prevent the Impeachment motion against the then CJ Sarath N.Silva being accepted and placed on the order paper, whereas in the present case the Jurisdiction of the PSC to hold an inquiry into the allegations was challenged on the ground that it was not a Court of Law recognised by the Constitution to decide on the allegations against the CJ.
This has created a deadlock between the Legislature and the Judiciary which would lead to drastic consequences.
Now the need has arisen, to change our somewhat stubborn attitudes, and review the volatile situation so that sanity will prevail and avoid a catastrophe.
First and foremost all must realise and accept that it is not Parliament, or the Judiciary or even the Executive President which is supreme, but the CONSTITUTION promulgated by the people, for the people.
Sovereignty – supremacy — is in the PEOPLE, and this is endorsed and protected in the Sri Lanka Constitution.
Article 3: provides for the inalienable sovereignty of the PEOPLE (including powers of Government, Fundamental Rights and Franchise)
Article 4: provides for the Exercise and enjoyment of this Sovereignty;
(a) Legislative power by the PEOPLE through Parliament and at a Referendum.
(b) Executive power of the People by the President elected by the PEOPLE.
(c) Judicial power of the PEOPLE through Courts, Tribunals and other Institutions established or recognised by the Constitution (except in the matter of Parliamentary privileges).
This being the case, and especially in view of the sole and exclusive Jurisdiction of the SC to interpret the Constitution the Parliament (especially members of the PSC) should shed their confrontational, antagonistic attitude and voluntarily intervene in the pending proceedings of the Supreme Court through their Lawyers and express their invaluable views and help to resolve the issues concerning the Interpretation of the Constitution. Parliament as elected representatives of the People owes this primary duty to the People.
It is in this spirit of mutual respect and understanding between the Parliament and the Judiciary, the S.C. recommended to the PSC inquiring into the allegation against the CJ, that it was prudent to defer the inquiry until the Court determines the point of law referred to it by the CA. This S.C. Bench presided over by Justice Nimal Amarathunge also included Justices K. Siripavan and Priyasath Dep. Unfortunately this recommendation ,however, was ignored by Parliament and the PSC.
The basis of PSC findings and burden of proof
As pointed out earlier, the charges of “proven misbehavior” involve moral turpitude and constitute an offence. In such an event due to the “presumption of innocence” operating it is for the complainants / prosecution to prove the charges against the CJ, and not to call upon her to prove her innocence. In this instance, The Burden of Proof has been inverted.
As no oral evidence was led at the inquiry, and CJ was made to believe that no oral evidence would be led, she submitted her written explanation in respect of each and every charge, but called for more details and documents to reply fully in respect of certain charges.
When she was served with a huge bundle of documents and directed to give her explanation she and her Lawyers refused to participate further at the “inquiry” and walked out. The 04 opposition members of the P.S.C. followed suit saying that they would not be parties to this “witch Hunt”.
Thereafter, fortified by statements of legal luminaries and pro-Government academics highlighted over the mass media ,the PSC decided to continue the “inquiry” Ex- parte against the CJ claiming they had the “quorum” to do so, hurriedly summoned witnesses and recorded the evidence of 16 witnesses (including a sitting S.C. Judge ) the same day the proceedings continuing till late night. This was an unprecedented proceeding ever taking place in Sri Lanka.
Dr. Bandaranayake was not given any practical opportunity to go through the voluminous papers given to her which was supposed to be relevant to the charges leveled against her.
It was the People represented by M.P.’s in Parliament that probed the C.J. in relation to the allegations. The people demanded Transparency;-This was denied, People expected Natural Justice and Fair Play- This was denied, the People desired common courtesy shown to this esteemed office -This was denied.
In the end it is the people who will lose; for these wrongful deeds and omissions committed in the people’s name.
Vijaya Niranjan Perera, LLB, LLM, is an Attorney-at-Law
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