Sarath N. Silva on judicial power, improprieties and impeachment

“Chief Justice or no Chief Justice, one cannot have improprieties,” emphasised former Chief Justice Sarath N. Silva, adding that if there are charges against the higher Judiciary, there is nothing wrong in the Government bringing an impeachment motion.Silva stresses the importance of introducing a different mechanism during an impeachment rather than having the entire country involved in the matter, which will only damage the judicial system.

Silva also points out that although there have been similar situations against the higher Judiciary in the past, the ongoing impeachment against Chief Justice Shirani Bandaranayake is critical since there are “serious “charges against her. “Whether these charges are true or not is a different question,” he asserts.

Following are excerpts from an

interview:

Q: What are your views about the impeachment motion against the Chief Justice?

A: Impeachment of the Chief Justice is done under the Constitution. A provision in the Constitution states that the Chief Justice’s office is safeguarded by the Constitution itself and the levels of safeguard is as regards appointment and as regards dismissal.

According to British practice, dismissal has been on address of Parliament. Therefore, according to the British Law, the Parliament has the power of dismissal in respect of higher Judiciary. According to the Article 4 of the Constitution, the judicial power of the people is exercised by Parliament through courts. Therefore, Parliament is responsible for the discharge of judicial power by courts. A highest level of judicial power is the higher Judiciary. The basis is, how it is going to be exercised?

Earlier in the ’72 Constitution, there was no elaborate procedure. In other parts of the Commonwealth, the procedure has been to have an inquiry. Other high court judges of the Commonwealth will have a preliminary inquiry and that findings are reported to the parliament. The parliament will act according the findings. In Sri Lanka, the ’78 Constitution made a change, adding how a motion can be presented by one-third of the members. It further said that the procedure should be laid down by the law or by Standing Order. But no law or Standing Orders were made until the first impeachment motion.

Neville Samarakoon was hurriedly impeached. They did not realise that there were no law or Standing Orders. Through a matter of court they appointed a select committee. The select committee was rushed through and Samarakoon was found guilty. When they looked around how to present the motion, they realised there was no law or Standing Orders. Then they hurriedly made the Standing Orders, which are now authoritative.

If they had reflected on this more deeply, they would have looked around and found what is practiced in other countries. They would have drawn up a law with some judicial inquiry. Unfortunately that never happened because everything happened in a rush. It remained that Samarakoon was again charged under new Standing Orders. There were other judges who had to face the same situation. But they were found not guilty and there were no major issue on this procedure.

The next episode came in 2001, when the United National Party passed an impeachment motion against me. At that time a set of lawyers filed a case in Supreme Court and said that our procedure is adequate and that there should be a preliminary inquiry as operated in the Commonwealth countries including India. They filed a case saying that the Speaker should not entertain this motion. The Supreme Court made an interim order on those lines.

Unfortunately Anura Bandaranaike said that the Parliament is not bound by the Supreme Court order. There we lost a golden opportunity. Then the process of impeachment would have become a fairly hushed process without the whole country getting involved in a manner that is has got involved now. The most unsavoury feature of the present matter is that the entire country is involved, which is highly damaging to the judicial institution. We should not have every person on the street discussing alleged improprieties of the Chief Justice.

Q: Who is to blame for such a situation?

A: Partly I blame the judges and lawyers itself; they have brought this to the surface. They have organised protests and various other activities. A more appropriate course should have been to discuss the matter with the President and decide what procedure should be adopted. The Chief Justice herself has gone public and said, “I am going to fight and will not back down”. She must be braver than me; I will never make such a statement. In fact, I never did. I know that one can’t take a very harsh stand on these matters.

However, the tragedy of this is that there is no fair process. If Anura Bandaranaike followed what was agreed at that time, then there would have been a preliminary inquiry followed by a hushed and quiet procedure without the whole public of Sri Lanka getting involved in it. I am telling you this will continue. Since these proceedings are not conducted in public, there will be speculations doing the rounds. It will only damage the judicial system.

Q: What do you have to say about the 14 charges levelled against the Chief Justice?

A: The charges framed against Neville Samarakoon were some frivolous matters. Charges against me were drafted by a person who writes a tabloid newspaper. In fact I wanted to answer those charges but the Secretary General of the Parliament said I could do so because the charges had not been accepted. They were absolutely frivolous.

But the charges against Chief Justice Bandaranayake touch upon financial improprieties and so on. The crucial matter is that there is a case of bribery against the Chief Justice’s husband. I feel the Chief Justice should have been well advised to take leave during that period and allow that case to go on. Or some such mechanism should have been resorted to in discussion with the President to avoid such a situation. Now the Government can also say “how can we charge with bribery when the wife is the Head of the Judiciary?”

To begin with, I don’t know why the Government gave that job to the husband. I blame both parties. But the upshot of it is that our whole institution suffers. The charges against the Chief Justice are fairly serious. Whether these charges are true or not is a different question.

Q: If the charges are serious as you said, then there is nothing wrong in bringing an impeachment motion against the Chief Justice. Do you agree?

A: No there is nothing wrong in bringing an impeachment. If there are charges, she has to be impeached; there is no question about it. Chief Justice or no Chief Justice, one cannot have improprieties and that is fundamental. That is why I have no objection against this case.

I requested the Secretary General of the Parliament to immediately send me the charge sheet so that I can respond. But they said I cannot do it because the charges are not accepted by a select committee. Once there are allegations you have to meet up with them. We cannot prejudge either way, so the situation should be open. But when you leave a situation open, there is speculation. That is a very unsavoury aspect of this whole process.

Even now we have to change this procedure. We have to go back to stage where Anura Bandaranaike floundered and introduce preliminary inquiry. These inquiries are done in very discreetly and no one knows about it.

Q: How will this affect the country in the international arena?

A: It is sad to say that the situation has already become an international issue. I think it is the perspective of President Mahinda Rajapaksa. This must be his desire. Not the President but the entire Government system. Now the accuser has become the policeman and the judge too.

Q: There is confusion over the composition of the Parliamentary Select Committee. Your comments?

A: The minimum should be seven. The Government has a say on this. It is the Speaker who decides on this. I feel they may go for 11 to give each party representation. The Government will have seven representatives, two for the UNP, one each for the JVP, and DNA. Eleven may be an uneven figure but all that is left to the Speaker.

Q: In the recent past we saw the Supreme Court taking administrative decisions. Do you believe it is acceptable for the Supreme Court to make decisions that should be made by parliament?

A: All this comes under the Fundamental Rights jurisdiction. Any excess or under-exercise of power by the Executive becomes a violation of Fundamental Rights; particularly the right to equal protection of law under Article 12.

Over the years we have given a wide interpretation to Article 12; almost everything is under its purview. The borderline between the policy should be of the Executive. Whether the borderline is correctly implemented or not should be decided by the Judiciary.

In some areas we may say that the Judiciary has transcended to policy. Now what has happened is that the Judiciary has gone to the other side and is trying to implement policy. That becomes a difficult thing. If we take the Z-score matter, the Government was in a very tight spot. What happened was that finally the Judiciary took the brunt of it. This is not a very satisfactory situation.

Q: There are allegations that the Chief Justice, who supported the Government initially, became critical of them following the alleged bribery charges against her husband. Your comments?

A: That is a coincidence. May be this allegation is true. May be there is some merit in that. Previously the Supreme Court was not very assertive. It did not operate as a check on the exercise of Executive power. That is fairly clear. The 18th Amendment was just allowed to be passed through. If they adopted the same attitude that they adopted in the Divi Neguma Bill, surely it should have ordered a referendum. Divi Neguma is something trivial. It was a policy matter. The 18th Amendment was a Constitutional matter.

Meanwhile, what happened during the Expropriation Bill? I feel that it was a heinously wrong decision of the Supreme Court to allow that to pass even without two-thirds. Take the case of General Sarath Fonseka – his rights were just swept into the dustbin. But the Supreme Court was very sweet about it. My perception is that once the Executive also gets used to fact that the Judiciary is becoming quite accommodating, then there could be problems.