By Rajiva Wijesinha –

Prof Rajiva Wijesinha

Given the plethora of worries about the financial integrity of the Chief Justice, it may seem redundant to demand higher standards also from the Select Committee looking into her case. But the Select Committee itself provided the principal reason for circumspection when it declared that ‘The office of the Chief Justice is a position which demands maximum confidence of the public. A moral conduct of an exceptional degree is expected from a Chief Justice unlike from an average citizen. Your Committee observes that any discredit to such conduct leads to a decrease in the confidence of the public towards a holder of such office’.

That being the case, it must be obvious that Parliament, which is, or should be, an even more exalted entity, must also have the confidence of the public. It must therefore be even more careful not to seem to be biased in its conduct or hasty in its decisions.

Given that the misdemanours the Chief Justice is alleged to have committed would, if proved, constitute criminal conduct, they must be investigated in accordance with criminal procedures. This includes presenting evidence systematically and allowing adequate opportunities for it to be challenged. If that is not done, and clearly seen to be done, public confidence in Parliament would be eroded.

Unfortunately the Standing Orders governing impeachment do not come up to the expected standard. This is obvious from the many cases cited to justify the procedure since, in other countries where Parliament acts judicially, there are several safeguards which do not exist in our system. In particular that function is entrusted to a second chamber, where members are more clearly independent individuals than lower house members who – even without our preposterous election system – are more inclined to divide on party lines.

It is also important to ensure formal procedures comparable with what happens in the Courts. Mutual respect should characterize proceedings, and this is facilitated by allowing them to be public. The request of the defence that this be permitted should not have been summarily dismissed, on the grounds that the Standing Orders forbade this, since Standing Orders are not sacrosanct, unlike the Constitution, and may be waived when those involved agree.

Comparison with what happened in the Philippines, the most recent instance of a Chief Justice being impeached, makes it clear that what amounts to a judicial process was followed there. The first statement of the Liberal Party on this subject drew attention to that case, and our second statement suggested that our Standing Orders should be amended. Alternatively, we suggested the Select Committee could have a Sub-Committee consisting of former judges of the Supreme Court to assist it.

Unfortunately the Select Committee not only decided to proceed on its own, but dismissed all objections raised and requests made. Some of these may have seemed unreasonable, and the dissent of opposition members should not be taken as proving prejudice on the part of government members, given the oppositional nature of Sri Lankan politics. However a fair minded observer would wonder about allowing only a week for the statement of defence when six weeks had been requested. Even more startling is the fact that the defence was asked to commence ‘to disprove’ two charges one day after the documents relevant to those charges had been handed to them.

While the Chief Justice should not have walked out of the Committee, the claims made with regard to the language used suggest some doubt as to whether the assertion that she would not get a fair trial was unreasonable. Certainly the Committee should not have dismissed summarily the contention of opposition members that a written submission they made should be considered and the Chief Justice requested to appear before the Committee again.

However the opposition members should not have walked out, and I cannot stress enough the irresponsibility of opposition politics in Sri Lanka, in expressing through sulking what should be clearly stated and recorded. In 1981 the SLFP opposition was not present to vote when the UNP government passed a vote of No Confidence in the Leader of the Opposition, Mr Amirthalingam, and it was only Mr Thondaman and Shelton Ranaraja who stood against the overwhelming tide of their government colleagues and abstained. So too the manner in which the current opposition has made a nonsense of the 18^thAmendment by not expressing their views on appointments such as that of the Chief Justice indicates a childishness that makes one despair. Had the opposition for instance expressed and put on paper its opposition to the appointment of Shirani Bandaranayaka as Chief Justice, the President would have found it embarrassing to have appointed her, and even more embarrassing to have encouraged impeachment when he had ignored advice offered on a constitutional basis.

But, as noted, our incapacity on all sides to use the procedures we have is what encourages contempt for procedural norms. Thus, where they do not exist, we do not even understand what problems we create for ourselves.