Impeachment of Sri Lanka’s Chief Justice: An Unconstitutional Witch-hunt

Image courtesy AFP and via The Express Tribune

The Rajapaksha Regime, through its parliamentarians, handed over an impeachment motion to the Speaker, the elder brother of the President Rajapaksha against the first woman Chief Justice of the country. It appears that the Government of Sri Lanka is in a mighty hurry to “get rid of the Chief Justice” so that a major obstacle for government’s capricious track is removed.  With the handing over of the impeachment, the government has signalled to the entire public service and judiciary   two rules – that the Regime is superior to the Law and that Rule of Law does not exist in the country. This short article is written to bring out several vital issues that the  public should not lose sight of, in relation to  the present impeachment attempt.

Background

The events leading to the impeachment demonstrates that the move to impeach the CJ  is nothing but a political witch-hunt. The tension between judiciary and executive started with Minister Bathirdeen’s unsuccessful attempt to influence the Magistrate of Mannar, resulting in an attack on the Magistrate’s court. Then there were attempts by the Executive  to influence the Judicial Services Commission (JSC) on disciplinary matters, where the JSC stood firm. The JSC, through the Secretary, in fact issued an unprecedented statement on 12th September 2012 stating that there is interference with the functions of the JSC. Everyone knew by whom.  Soon thereafter, the JSC Secretary was brutally assaulted in a typical – state sponsored style attack.  Divineguma Bill, which takes away some of the powers of the Provincial Council and concentrated power of rural development in the hands of a Minister under an unusual legislative scheme, came up for review in the Supreme Court. Chief Justice presided over the relevant Bench. The Minister concerned was another Brother of the President.  The decision has ignited  so much of unfair criticism against the Court. Threats of impeachment emerged with this case! Discharging a constitutional function or a duty (in this case protecting the judiciary against unlawful interference and delivering a judgment) cannot be the basis for any impeachment.

Divineguma Petition not being handed over to Speaker

In   an unusual move, the Speaker of Parliament made an unprecedented statement to the effect that the authority of parliament was undermined by not submitting a petition (filed by one of the petitioners in the Divineguma Supreme Court challenge) to the Speaker and instead submitting to the Secretary General of Parliament. Article 121 of the Constitution states that once a petition is filed, it shall be delivered to the Speaker. Delivered by whom? By the petitioner and not by the Court. However, when the objection was taken on one of the three petitions, the Supreme Court overruled the objection. Even if the Supreme Court upheld the objection, still the Court would have continued with the remaining cases. Under our constitution, the Supreme Court has authority to interpret the constitution and, in my view, the Court rightly rejected the objection. This issue has blown out of proportion and the Speaker made a statement on this! In my view, by interpreting the Constitution, the Supreme Court has not undermined the authority of the parliament but given effect to the Constitution.  Can this be a basis of an impeachment? Certainly not, because interpretation of the constitution is an exclusive power vested with the Supreme Court.

Investigation against CJ’s Husband and not against others?

Husband of the Chief Justice had been appointed by the Government as the Chairman of National Savings Bank, a state bank and later resigned, after an attempted share scandal.  This is a statutory board consisted of all political appointees – including the President’s astrologer. Only information in the public domain is that the anti-corruption commission conducted an unusual fast track investigation into the matter and a case has been filed against him in the Magistrate’s Court. Person with proper senses know that a share scandal of that magnitude cannot take place without the participation of “higher-ups”. Who are the beneficial owners?  No investigations into those who were involved with it. No one can say that a scandal should not be investigated but when an selective investigation is done,  that raises   serious issues on the investigation itself. Every time when the Divineguam case came up in court – a dramatic event takes place on CJs’ husband’s investigation. Once he was called before this Commission and then before the CID. When the Divineguma case came up last, case was filed in the Magistrate’s Court.  Is there any doubt that this exercise was   intended to twist the arm of the CJ? We all know that the law enforcement mechanism is totally politicized in Sri Lanka today – the government can manipulate a case against any one and can clear any corrupt official, if they want. In any event, the issue of the husband cannot be a sudden wake up call for the government to clear the judiciary or to restore the lost integrity in share market.

No Charges in the Public Domain?

Motion to impeach a judge of the Supreme Court is a serious matter that is permissible on limited grounds. Analysis of any impeachments of any judge of any country will show that the public are generally aware of the allegations – before those allegations are formally brought up. For example, allegations against former CJ Sarath N Silva were known and public discussed about them. However, until today, the public are not aware of the allegations against Chief Justice Shirani Bandaranayaka. Such situation  is possible,  in my view,  only if the impeachment is totally politically motivated with impunity.

Political Motive

There is overwhelming evidence (or reasonable and logical inferences) to establish that the government was involved in  the attack on JSC (and physical attack on its Secretary) and political mudslinging on the CJ. Take the example of the recent adjournment debate in Parliament on JSC. The Minister of Foreign Affairs Prof. G.L. Peiris virtually justified the attack on the JSC  on the basis that its Secretary was appointed contrary to the constitution. He said that in terms of the Constitution, only the senior most member of the minor judiciary can be appointed as the Secretary of the JSC and the present Secretary was 29th in the seniority list; and therefore should not have been appointed as Secretary. This is absolutely incorrect and false. There are no such provisions in the Constitution. On the other hand, to the best of my knowledge, Mr. Majula Tilakaratne was brought in as a Deputy Secretary by the previous Chief Justice Asoka Silva, who had appointed his own brother as the Secretary, though he was not the most senior.  The then Chief Justice, soon after retirement, became an advisor the President! Many others previously were appointed as Secretary to the JSC, though they were not senior at all.  At this Parliamentary Session, an attempt was also made to table a mudslinging and derogatory “manufactured document” on CJ. Such conduct is unheard of in Commonwealth parliamentary traditions. The Government’s propaganda machine is the other indicator to judge who was behind these attacks.   Several political programmes in State media were designed to criticize the judiciary. All this moves reveals Government’s mala fides.

Unconstitutional Exercise of Judicial Power by Parliament

There is a vital Constitutional issue on whether the Parliament can “hear” the charges against the Chief Justice. Can the Parliament be converted into a court to try an accused? As we know, it is the judiciary that can hear cases and not the parliament – whether it is against the President, judge of a court or any other. Please read carefully the following paragraph in the Constitution (Article 4(c) of the Constitution):

“the judicial power of the People shall be exercised by Parliament through Courts, tribunals, and institutions created and established, or recognized 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, wherein judicial power of the People may be exercised directly by Parliament according to law.”

It is clear that the cases are to be decided by courts and institutions that have been established to adjudicate judicially. However, parliament can also do it in respect of ONE type of cases; i.e. matters relating to breach of Parliamentary privileges and Nothing Else. Impeachment inquiry  of a judge is not one of them. And therefore, the Parliament cannot hear and determine on whether a judge is guilty of misconduct or not.

Let us also examine the other relevant provision in the Constitution in relation to the impeachment of a judge. Article 107(2) ensures that a judge shall hold office during good behavior and shall not be removed, except by an order of the President made after an address of Parliament on the ground of proved misbehavior or incapacity. Article 107(3) states as follows:

“Parliament shall by law or by Standing Orders provide for all matters relating to the presentation of such an address, including the procedure for the passing of such a resolution, the investigation and proof of the alleged misbehavior or incapacity and the right of such judge to appear and to be heard in person or by representative.”

The Parliament has not passed a law in that regard but by Standing Order 78A, a procedure has been introduced.  The following features are important for this debate:

(i) Once a resolution is tabled in the Order paper, the Speaker shall appoint a select committee of parliament, consisting not less than 7 MPs to investigate and report to parliament on the allegations of misbehavior or incapacity set out in such resolution;

(ii) the judges is entitled to legal representation before the Select Committee

(iii) the select committee shall within one month conclude the inquiry and if not seek further time to complete it from Parliament

(iv) Proceedings are held in camera until a finding of guilt is reported to Parliament by the select committee.

The procedure laid down in the Standing Order seems to suggest that the Select Committee is serving as a judicial body to find a person guilty! This is therefore contrary to the Constitution – Article 4(c) and in my view ultra vires the Constitution.

Different to Two Previous Impeachment Attempts

Unlike previous impeachment motions, present one is unique. Motion to impeach Hon. Neville Samarakone CJ took years as the Select Commission did not want to rush through and parliament readily extended the period. Samarakone CJ had the best representation in the form of S. Nadeson QC. The Opposition fully supported him against the impeachment. Media was not under the government control in the same way we experience today. The Bar was united and strong. Then came the two impeachment moves against Sarath N. Silva CJ. In my view, there were enough and serious allegations against him but the President Chandrika Bandaranaike  protected him by proroguing the Parliament once and then dissolving it second time. With so much of allegations against him, Mr. Mahinda Rajapakse was among those who openly protected him. Part of the Opposition UNP also supported Silva CJ, based on personnel relationships. The Bar was indirectly controlled by Silva CJ through his connections and intimidatory tactics. However, present Chief Justice does not have such open support from politicians as she only discharged official functions with a different approach. She is quiet and secluded. The Bar is presently divided and Bar Association lacks its excellence and leadership. Even lawyers found it difficult to meet her, except on strictly official matter. There are no issues of her integrity.  On the other hand, the state media and part of the Bar is fully controlled by the regime.

Conclusion

Impeachment is not a remedy for private wrongs; it’s a method of removing someone whose continued presence in office would cause grave danger to the nation (Charles Ruff). But proposed impeachment of CJ Bandaranayake is not a danger to the nation but only to a few in  the regime, which believes that  her presence is a stumbling block for their arbitrary rule. The nation cannot do away with the basic principles of justice in impeachment proceedings.  Will Chief Justice of Sri Lanka have a fair hearing in her own country? From LLRC to UPR proceedings and from international conventions to the basic human rights, every one urges the Government of Sri Lanka to uphold Rule of Law. The Government responds to international community with one statement;  “Justice and fair play is guaranteed in Sri Lanka and therefore there is no need for independent investigations into alleged human rights violations externally”. The way how the Chief Justice is treated by the government (and its highly political state mechanism) will tell to the world that Sri Lanka cannot guarantee basic human rights even to its own Chief Justice.

  • Safa

    It is an open secret that the present parliment is controlled by the executive. If as they say they are the voice of the people they should publicise the seven charges so that the people themselves can decide if the motion signed by 107 mp’s is genuine or mala-fide.

    Divineguma bill is being rushed through parliment without any transparency. It has not been published fully for people to study and comment. It is said that there is no finacial audit or accountability which is a serious issue. It undermines the authority of the PC’s.

    While there are moves to impeach the CJ there are other issues which should be taken up. These have been highlighted in the COPE report but no action hass been taken against the guilty parties.

    1. The investment of Rs.1,137 million by the People’s Bank in the purchase of shares of Sri Lankan Airlines had impaired by Rs. 848.8 million in 2010
    2. Central Bank lost US $ 15.6 million in its investment in Greek Government Bonds without considering the market conditions of that country.
    3. The income from the IIFA Film Festival had not been identified. The sale of tickets of the IIFA Cricket match had been given to a private company contrary to the directive of the subject minister. The income generated through the sale of tickets had not been handed over to the Tourism Promotion Bureau.
    4. Sri Lanka Tea Board had paid Rs.9, 038,930 to a private company for an installation, but the work remained incomplete.
    5. A Samurdhi Bank manager obtained a loan of Rs.1, 025,000 under the name of a beneficiary to the Criminal Investigation Department (CID).

    There are many more irregularities highlighted in the COPE report but these ‘servants of the people’ who are responsible for many of those institutions are just not interested in taking responsibility other than engaging in Witch Hunts at the behest of the executive.

  • jamal

    I have the best solution for this crisis. send all these judges home and appoint all Pradesiya saba members and provincial council members of UPFA to lower courts. For the higher courts like high courts and appeal court appoint UPFA MPs as sitting judges. For Supreme Court UPFA ministers as members. Even I propose as CJ, Hon.(our Duttu Kaimunu) Mervin. Why not?.

  • stanobey

    I personally have a lot of respect for Mr Weliamuna. He has gone where very few others have feared to go. However a few things need to be clarified:

    1. What I would like to know is where was Mr Weliamuna and all the other lawyers when the CJ’s husband accepted the NSB position. Were they worried about their practice that they did not take it up. At that time a few people did raise the issue as imperiling the independence of the Judiciary and just as they predicted…here we have it. The CJ compromised.

    2. Also just like the Divineguma Bill, the 18th Amendment was also very controversial. But on that occassion the CJ passed approved it. Of course there was no NSB-TFC deal to worry about. So was she herself playing politics? Are the lawyers to be blame for keeping mum when it should have been nipped in the bud?

    3. There are serious allegations against the JSC under the CJ. Not just those relating to sexual harassment but of interference and intimidation of judges coming from the JSC. These are allegations. I dont see anything wrong with a proper inquiry in respect of them.

    BTW: The name is ‘Bathiudeen’ not ‘Bathirdeen’ and to act as counsel prosecuting Bathiudeen and to comment about the case is potentially in contempt of court Mr Weliamuna. You need to establish that in court, not in an internet forum. Until then, you should not comment on the issue as it is sub judice.

    • Daniel

      It’s a very valid objection that has been raised by Mr.Stanobey.
      Yet, such a questioning too, does raise the following few questions:
      1. Mr.Stanobey’s major objection seems to be centered around the ‘mumness’ of Weli and the rest when the CJ
      had been treading the tempting path.

      2. Although its not necessary to raise, yet, one is itched to ask, that knowing it’s a wrong, did Mr.Stanobey raise
      and place his/her objections at such a moment or is he/she just taking it up now, to defend and cover up the continuance of the
      bizarre doings?

      3. Then, the other inevitable question will be, that even one assumes that even it had been wrong on the part
      of Weli, in not raising such objections on such occasions, is Mr. Stanobey’s expects that once been mum one,
      need to maintain such dumbness till the funeral, to facilitate the continuity of the blunders in a smooth
      fashion , mindless of the consequences, what ever it may be?

  • http://Www.iciafs.org Thrishantha

    It is disappointing to see the silence of the Sri Lankan opposition on this issue. Fair enough, the histories of UNP, JVP, etc, are filled with assault and murder of judges. It is understandable that independent Judiciary is a pain in the butt of all politicians. When the present CJ ruled that military courts are part of the conventional judiciary in the case of Sarath Fonseka’s case, being a Sarath Fonseka sympathizer, my natural reaction was anger. But I decided to bow down to the supreme authority. If any Sarath Fonseka supporter keeps silent because of that judgement, it is the biggest mistake one can make, because this issue has nothing to do with the person, but about the judicial independence. In any case, people should not expect much from politicians in this case. Work independently and do your best to protest against this impeachment motion in the name of your young ones.

  • ann

    Its no point creating a monster and then crying when your creation bites you. These are all educated people, not the masses of the country. They should have realized long time ago that their actions will boomerang on them. At the point of the 18th amendment, at the ruling on the crossovers they should have drawn a line. It was obvious to most that once MR is ever powerful the “family” was going to steamroll everyone. Matter of time before they even try to change the name of the country

  • jansee

    This is the same supreme court justice who headed the supreme court to which was referred to on the constitutionality of the 18th Amendment and the court headed by her gave the nod. This is not to say that she or what the Supreme Court did in the instant matter is wrong but if she had stopped the president in his tracks during the 18th amendment referral, she would not facing this dilemma now. The same goes to Sarath N Silva who now decries the wrongs of the Rajapakse regime but, in his own words, put him (Rajapaksa) there. What else can one say – or will they ever learn?

  • Priya

    Either we will end up like Somalia one day with anarchy and rule of the jungle rein the country or a big blood shed again will be needed to eliminate this corrupt regime.They are seemingly acting above the law and following the pursuits of JRJ who stoned the houses of judges who have given decisions against the governemnet.WE will never see democracy in this land until we eliminate this derogatory executive presidency.I think it is little too late now as Rajapakse’s have established their power in every corner and massive force will be needed to remove them.Sad state of affairs.

  • Truth

    “Either we will end up like Somalia one day with anarchy and rule of the jungle rein the country or a big blood shed again will be needed to eliminate this corrupt regime”.

    Anarchy and the jungle law is already there and we are competing with somalia for the last place already!!!

    Blood shed never stopped from 1956 on wards!!!Now STATE TERROR has come to stay permanently!!!
    Southerners were complacent because all these years the victims were mainly Tamils. Now the terror has come to bite them as well!!!

  • Lester

    There are no issues of her integrity.

    She was appointed to her present position on the basis of powerful connections, whereby more qualified/experienced individuals were passed over. She was instrumental in extending term limits for the Executive President. And, it would be naive to presume she didn’t know about her partners’ unorthodox dealings. Integrity aside, can one vouch for her conscience?

  • Mockery of Justice

    If the interpretation of Article 4(c) of the Constitution leads to the conclusion that the parliament cannot hear the matter of an impeachment of a Supreme Court judge, then who will? Article 107(2) provides that:

    “Every such Judge shall hold office during good behaviour, and shall not be removed except by an order of the President made after an address of Parliament, supported by a majority of the total number of Members of Parliament (including those not present) has been presented to the President for such removal on the ground of proved misbehavior or incapacity”

    Thus, the impeachment process is commenced by an executive act followed by legislative support. Obviously, the Supreme Court cannot hear a case of this nature as it would sitting on its own cause. For the same reason, the executive cannot determine the matter either. This leaves only the legislature of the three arms of Government to inquire into the matter!

  • Pingback: Reconciliation’s Long Road in Sri Lanka — International Policy Digest()