By Jasmine Joseph* –
Chief Justice Bandaranayake
The future of a judge who would have been the longest serving Chief Justice of the nation is grim in Sri Lanka. Widely alleged as politically motivated, the current move by the President to impeach her gives an opportunity to analyze the soundness of constitutional principles relating to judiciary in general and impeachment of judges in particular.
The bedrock on which the judiciary in Sri Lanka is built like most constitutional democracies is found in the Constitution. Unlike many constitutions, it has detailed provisions spanning from 107 to 147 with myriad of amendments relating to judiciary.
The primary concern in the present context is the competence of the relevant constitutional provisions to safeguard the interests of the institution of judiciary in a democracy. The most fundamental value would be independence of judiciary. The independence is not only an end in itself but is also a means. It is in the independence of the institution, the present and future of a democracy rests. Independence of judiciary is a prerequisite of a sound legal and governance system. The provisions relating to appointment, tenure, conditions of service and removal are the bulwarks of judicial independence. Provisions of Sri Lankan constitution are an anathema to the claim of independence.
In the context of the current attempt to impeach a judge, an assessment of the provisions and procedure of removal is taken up to test on the claim of judicial independence.
Removal of judge in Sri Lanka as per the constitutional scheme is virtually in the hands of the executive. This cuts at the very root of judicial independence. Though the legislature is involved, the requirement of the simple majority makes the ultimate decision at the sweet will of any government, which invariably will have majority in the parliament. Article 107 of the constitution of Sri Lanka provides that the President may remove a judge on proved misbehavior and incapacity. The process is established by the standing orders (see, Standing Orders 78A). The impeachment process is kick started by the parliamentarians with a notice of resolution signed by one third of the members. After the lapse of one month, the speaker shall appoint a select committee of not less than eleven members who investigates and submits a report within a stipulated timeframe, which is one month from the commencement of the sitting of the committee. On the report of the select committee a resolution shall be passed by the parliament and the same shall be presented to the President for the action of removal. In this scheme of events, the judiciary is entirely under the benignancy of the government in power. It therefore remains as the affair of the government in power.
The breaches of independence vis-à-vis removal in the above scheme could be best understood in contrast with the structure provided by India, a neighbouring nation. Removal of a judge in India is commenced on the recommendation by the judiciary. The proceedings are detailed in the Judges Inquiry Act of 1968. It has elaborate provisions about the process. The enquiry is conducted by a committee of three; two from judiciary and one a distinguished jurists. The report of the committee is so decisive that if it does not find alleged misbehavior or incapacity, the proceedings are dropped. Only on an adverse finding that there will be any further proceedings in the House and the same shall be discussion and adoption of the motion to impeach with special majority. This process if nothing else does not leave the judges at the mercy of the government in power.
This limited comparative exercise brings out the inadequacies of the Sri Lankan scheme of removal of a judge, which is a heavy setback on independence of the institution. Judicial independence has been accepted as a coveted virtue world over. The lack of it is a severe dent on the rule of law record, human rights protection and liberty quotient of the citizen in its relation to its own government.
* Jasmine Joseph is a professor of law at the National University of Juridical Sciences, India.
Safa / November 28, 2012
Unlike in India we dont have a strong judiciary. Mainly this is due to political interference in the judicial system. Current crisis only arose due to the refusal of the judiciary to acede to the demands of the executive.
The solution to the problem would be to withdraw or declare null and void the impeachment motion by the PSC. Other alternative is for the PSC to take a flawed decision targeting the CJ which will open the gates for conflict and litigation. This would lead to a constitutional crisis and split the govt.
At present there is widespread public resistance to the impeachment motion. Strong stand by civil society can bolster the democratic process and bring pressure on the govt.
/
Punchinilame / November 28, 2012
The only Sector that can take the whole thing apart is the Legal Services who must lead and the Political Opposition will fall in line to score a point.
What if all the Courts put-up shutters until the expected 3 majority decision is “put on hold” and the Parliament does not proceed to
Vote?
Will the permanently back-bent SLFP leaders lend their backs for a ride
by the Brothers Regime?
/
Safa / November 29, 2012
The Mahanayakes and the Maha Sangha have written to the President asking him to withdraw the motion. Let us hope that wisdom and justice prevail over vengance and impunity.
/
K.A Sumanasekera / November 29, 2012
When the judges of the birth place of the West Minister system have no say over acts of their Parliament,our CJ puts her own spin to the Constitution to thwart the Govt plans to develop the economy to the benifit of the rural poor.
After all isn’t this bill only a small fiscal matter to increase efficieny and fairness?
/