By Laksiri Fernando –

Dr Laksiri Fernando

With the quashing of the Parliamentary Select Committee (PSC) ‘Report, findings and decisions’ by the Court of Appeal, the highest judicial authority in the country on this matter, the impeachment procedure so far conducted by the ruling Rajapaksa regime has come to a dead end. If they try to bypass or jump over this ruling and conduct the impeachment debate based on the quashed PSC report it would be highly controversial, morally repugnant and contrary to the letter and spirit of the Constitution.

It is not only a ruling by the Court of Appeal. The Supreme Court previously determined that Standing Order78A is not law and contravenes Article 107 (3) and several other provisions in the constitution which governs and should govern any impeachment procedure against a judge in the Supreme Court or the Court of Appeal.

Missing Component

What is terribly missing in the impeachment procedure in Sri Lanka is an ‘independent judicial component’ where any charge against a judge could be investigated before debating an impeachment motion in Parliament. There is a judicial component in the impeachment procedure for the President, but not for the Chief Justice or any other judge.

Therefore, if the ruling Rajapaksa regime stubbornly goes ahead with their scheduled impeachment debate on 10-11 January, it would not be a proper procedure and not even a proper Parliament, but a mock one like their Kangaroo Court of the PSC. Both the moral and the legal legitimacy of such a debate would be at the lowest ebb. Any sensible President who wishes to respect the rule of law and the constitution of the country cannot consider a resolution based on such a debate a valid ‘Address of Parliament’ to remove the Chief Justice.

It is not merely a question of the weak nature of the charges levelled against the Chief Justice on which the President has already expressed his opinion at the meeting of the Institute of Chartered Accountants some weeks ago, but the flawed procedure followed by the PSC now quashed by the Court of Appeal. There was a clear admission by the President that the ‘charges were weak’ and it is the nature of the Sri Lankan culture to ‘hammer a person when the person is at the receiving end’ and his ‘conscience was pricked’ for one or the other reason. Whether those utterances were genuine or not is completely a different matter. In view of the all above there are two options left for the government.

• First, if the Rajapaksa regime is serious about the alleged ‘misbehaviour’ of the Chief Justice and genuinely believes that there is still a prima facie case against this highest officer in the entire judiciary then what it should do is to take the rulings of the Supreme Court and the Court of Appeal seriously and bring proper legislation to create an independent judicial procedure under Article 107 of the constitution to impeach the Chief Justice by abrogating the now much maligned Standing Order 78A.
• Second, if the Rajapaksa regime frankly admits, as the President has hinted in his above mentioned speech, that the charges are frivolous and that he may have to appoint ‘another independent committee’ to look into the matter, then in view of the judicial determinations, what they have to do is to honourably withdraw the impeachment proposal in Parliament without complicating the constitutional and political matters in the country. There is no point in appointing another committee to look into the matter.

Flawed Procedure

It is more than ironic and an obvious indictment on the impeachment procedure in Sri Lanka that the highest officer in the judiciary, the Chief Justice, had to plead before the Court of Appeal that she was ‘not given a fair hearing’ by the PSC based on ‘natural justice’ and to point out that the ‘root cause’ behind the whole debacle perhaps is the unconstitutional procedure followed on the basis of the ‘mere standing order’ without proper law and legislation on the matter.

It should be noted that she never questioned before the Court of Appeal the impeachment proposal before Parliament initially signed by 117 members and this means that the right to bring an impeachment proposal in Parliament is not at all a dispute in her view. Those MPs were not respondents in her application. What was at dispute was the procedure followed without a constitutionally sanctioned law governing the procedure ensuring a fair trial for any judge who would be accused now or in the future.

The Deputy Speaker, Chandima Weerakkody, has given an interview to the Daily Mirror (6 January 2013) in which he has interestingly stated that the task of the PSC was to make a report on the impeachment charges but not to find the Chief Justice guilty or innocent! This has contradicted what the PSC Chairman, Anura Priyadarshana Yapa, stated to the media after the conclusion of the PSC proceedings that they investigated five charges and the Chief Justice was proved guilty for three charges. It appears that the regime is now changing the position in view of the court determinations and they are making the law and the constitution of the country a mere mockery in the eyes of the public and the international community by resorting again and again to untenable arguments.

The whole debacle started because of some of the megalomaniacs in the legislature probably on the advice of the executive President, first were not happy with the recent independent decisions of the Supreme Court (i.e. Divineguma Bill) and then thought perhaps they should also exercise judicial powers or should usurp them from the judiciary for the conveniences of their arbitrary rule of the country. A crude form of this argument was repeatedly expressed by MP Wimal Weerawansa claiming that the ‘judiciary is subordinate’ to the legislature and it is only an ‘instrument of the legislature.’ It is the same argument in slightly a sophisticated form that Weerakkody has attempted to advocate.

New Argument

First he rejected any ‘judicial review’ of the impeachment process based on a ruling by the Speaker, Chamal Rajapaksa. He argued that “as per Article 4 (c) (i) the jurisdiction regarding the powers of Parliament is not delegated to the judiciary to exercise. The Parliament directly exercises the jurisdiction regarding the powers of Parliament.” What he conveniently forgot to mention is that the impeachment is not solely a power of Parliament. It is and should be a combined effort of the Parliament, a judicial tribunal and the executive. The task of the Parliament is to properly legislate for its procedure following the democratic norms without relying merely on untenable standing orders.

Then he denied even the very clear constitutional position that it is only the Supreme Court which has the sole authority in interpreting the constitution if there is any dispute. Therefore, his or the Speaker’s interpretation of Article 4 (c) (i) is not the valid interpretation. He said the following quite alarmingly and factually contradicting even the impeachment provisions in the constitution under Article 107.

“In the instance of the power to removal of the judges, the word used is the removal of the judges of the Supreme Court and the Court of Appeal, is a power entrusted on the Parliament by Article 107. Article 107 (3) is very clear that it is the Parliament that should conduct these proceedings by law or by standing orders as per the provisions of the constitution.”

It should be mentioned that the removal of the judges according to Article 107 is not vested in Parliament. It is factually incorrect. It is vested in the President on the basis of an Address by Parliament after the procedure of an impeachment investigation. In his second sentence he has disputed not only the ruling by the Supreme Court but also given his own interpretation in essence usurping the powers of the Supreme Court to the Parliament.

Mere Lunacy  

It may be possible that the mere lunacy of the present ruling regime might want to consider the sessions scheduled for the impeachment motion on 10 and 11 January what they claim as an ‘exercise of the judicial power of Parliament’ in respect of the impeachment motion against the Chief Justice.

If the PSC has not found the Chief Justice guilty on any of the charges according to the Deputy Speaker then who is going to find her guilty or not?

Obviously it would be the Parliament itself. They even might find the Chief Justice guilty of all the 14 charges instead of the three that the PSC has declared to be proved. This is quite possible given the recent most salvos by the President against the Supreme Court saying that the ‘SC has no right to go against the legislature’ at the Swarna Purawara award ceremony yesterday. Going against the legislature is not the point but ruling on constitutional interpretations is the right and the obligation of the Supreme Court under the country’s constitution. If the Supreme Court cannot perform that function without the interference or threats of the executive what is the point in talking about independence of the judiciary as the President has uttered?

It is unfortunate that the President as the appointing and the removing authority of the highest officers of the judiciary has himself got embroiled in the impeachment saga of the Chief Justice expressing his biases and partiality blatantly. This is a conflict of interest at the highest order. He is expressing his pre-judgements even before the impeachment proceedings are over. This merely shows that the impeachment against the Chief Justice is not a matter of ‘misconduct’ but a matter of ‘independence.’

There had been several transgressions of constitutional provisions and constitutional rights of citizens in recent times by the ruling regime. The frivolous and unconstitutional impeachment effort against the Chief Justice is not the only issue. The disregard of the constitutional rulings by the Supreme Court and the Court of Appeal, the denial of the Supreme Court’s power to interpret the constitution and making their own arbitrary interpretations and going ahead with the scheduled debate on the impeachment tomorrow are some of the others.

It is in this context that it might be appropriate for the Leader of the Opposition to ask for a clear clarification from the Speaker on the scope and the intentions of tomorrow’s debate before participating in anything unconstitutional in the eyes of the discerning public and the international community. What is at stake is not only the independence of the judiciary but the whole constitutionality and rule of law of the system of governance in the country. If a joint opposition of all parties fail to safeguard the constitutionalism and rule of law in the country or at least mark a strong opposition to the cause of action that the government is going to unleash it is going to be a quick slippery slope for open authoritarianism and even dictatorial rule. All the checks and balances existing today at least partially will be destroyed totally very soon.