By Rajiva Wijesinha –

Prof Rajiva Wijesinha

Problems connected with the attempted impeachment of the Chief Justice require solutions. I believe that impeaching the Chief Justice is no solution to anything, and will in fact lead us to forget the actual problems.

In suggesting the following practical solutions to the problems, I realize I am probably wasting my time, since we have developed a culture of addressing problems with sledgehammers designed for other uses. We generally land it on our own toes as well as the toes of those connected peripherally with the problem, instead of the people or the procedures that are the root cause of those problems.

Thus the United Nations as a whole is attacked for the Darusman Report, when they should have been our most trusted allies in refuting the propaganda of those who pushed the Secretary General into such a selective analysis. Tamara Kunanayagam gets dismissed for the Geneva Disaster, and those who contributed to it are permitted with impunity to deceive the President about leading lights in India as well as in the Sri Lankan Freedom Party, which should be the President’s closest allies in fulfilling his developmental agenda.

I have no doubt then that the same propagandists who accused Dayan Jayatilleka and me of precipitating the crisis in Geneva will claim that the solutions I propose are based purely on personal ambition. But that will be a small price to pay if there is greater awareness of the need for proper procedures as well as clear guidelines for the conduct of public officials.

Problems relate to two areas, namely the conduct of the Chief Justice and the procedures adopted by the Select Committee. With regard to the first, while the improprieties highlighted do not necessarily deserve impeachment, and certainly not through the present effort, we need mechanisms in place to ensure that the two relatively serious wrongs of which she is accused cannot again be committed, whatever mitigating factors might be advanced in mitigation.

We should therefore institute Judicial Norms through binding rules to

a)     prevent any judge sitting in judgment in cases in which he or she has any interest (To deal with the Chief Justice buying a flat from Trillium while judging their cases. It is clear she understands this was wrong, inasmuch as she withdrew, immediately after the impeachment resolution, from that Bench)

b)    remove the absolute power of the Chief Justice to allocate cases, and instead set up a panel consisting of the three most senior judges. No changes should be made except by the panel in consultation with the original bench, and in consultation with the entire Supreme Court if allegations of bias have been made (To deal with the Chief Justice replacing the Bench hearing the Trillium cases with a Bench headed by herself)

c)     prevent any spouse of a judge accepting office from government except in the case of those already in government service. No judge or spouse of a judge should be offered or accept office from government for five years following the judge’s retirement, except for appointments to mediation boards and such task bound assignments (To deal with the appointment to high positions of Mr Kariyawasam)

d)    have the Judicial Service Commission appointed by a panel of the three of the six most senior Supreme Court judges, with provision for appeals regarding appointments to be addressed to a separate panel of the other three (To deal with allegations of arbitrary actions by the JSC)

We should also institute internal investigation systems within the Judiciary if judges violate judicial orders (To prevent situations such as occurred when the Chief Justice was given a substantial discount on a purchase from Trillium when there was a Court Order enjoining that the highest possible price be obtained for these).

We should also institute rules with regard to the Assets and Liabilities Act to

a)     Ensure immediate remedial action when the Declaration is not make (To avoid situations such as the realization now that the Chief Justice did not submit a Declaration for 2001)

b)    Redraft the form to ensure that manipulation of assets is detected (To prevent concealment of funds by emptying accounts just before March 31^st each year, as is alleged was done by the Chief Justice)

c)     To allow for random checks on the accuracy of Assets Declarations by an independent body, such as the Auditor General’s Department or the Bribery Commission, though with greater institutional safeguards regarding the independence of those institutions (To prevent accumulation of misleading statements as seems to have been the case with the Chief Justice)

Given what has been reported, it is clear that the ‘moral conduct of an exceptional degree’ expected from a Chief Justice that the Committee believes is necessary was not forthcoming. But of course the high standards enjoined by the Committee are expected also from Parliament, and we need measures to ensure that as well.