Impeachment of CJ: An unconstitutional witch-hunt

The Rajapaksa regime, through its Parliamentarians, handed over an impeachment motion to the Speaker, the elder brother of President Rajapaksa, 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 the 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 the Judiciary and the Executive started with Minister Bathiudeen’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 12 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. 

The Divi Neguma Bill, which takes away some of the powers of the Provincial Council and concentrates power of rural development in the hands of a Minister under an unusual legislative scheme, came up for review in the Supreme Court. 

The 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.

Divi Neguma 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 Divi Neguma 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?

The 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.

The 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.

People 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 a selective investigation is done, that raises serious issues on the investigation itself.

Every time when the Divi Neguma case came up in court, a dramatic event took place in the CJ’s husband’s investigation. Once he was called before this Commission and then before the CID. When the Divi Neguma case came up last, the 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 politicised 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?

The 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 the public discussed them. However, until today, the public is not aware of the allegations against Chief Justice Shirani Bandaranayaka. Such a 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 the JSC (and physical attack on its Secretary) and political mudslinging on the CJ.

Take the example of the recent adjournment debate in Parliament on the 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, Manjula 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 to 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 the 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 programs in the State media were designed to criticise the Judiciary. All these moves reveal the 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 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, 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 behaviour and shall not be removed, except by an order of the President made after an address of Parliament on the ground of proved misbehaviour 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 misbehaviour 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 seven MPs to investigate and report to parliament on the allegations of misbehaviour or incapacity set out in such resolution;

(ii) The judge 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 the previous impeachment motions, the present one is unique. Motion to impeach CJ Neville Samarakone took years as the Select Commission did not want to rush through and Parliament readily extended the period.

CJ Samarakone had the best representation in the form of S. Nadeson QC. The Opposition fully supported him against the impeachment. The media was not under Government control in the same way we experience today. The Bar was united and strong.

Then came the two impeachment moves against CJ Sarath N. Silva. In my view, there were enough and serious allegations against him but the President Chandrika Bandaranaike protected him by proroguing Parliament once and then dissolving it the second time.

With so many allegations against him, Mahinda Rajapaksa was among those who openly protected him. Part of the Opposition UNP also supported CJ Silva, based on personal relationships. The Bar was indirectly controlled by CJ Silva through his connections and intimidatory tactics.

However, the 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 matters. 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 the proposed impeachment of CJ Bandaranayaka is not as a danger to the nation but only to a few in the regime, who believe 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 the 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 the Rule of Law. The Government responds to the 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 the Chief Justice is treated by the Government (and its highly political State mechanism) will tell the world that Sri Lanka cannot guarantee basic human rights even for its own Chief Justice. 

(The writer – LLM, Constitutional Lawyer, Eisenhower Fellow, and Senior Ashoka Fellow – is a former Director of Transparency International Sri Lanka, and Convener – Lawyers for Democracy.)