By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

For those of us who prefer to take refuge in comfortable illusions that this Presidency only hides a velvet hand in an iron glove (to mischievously twist that proverbial saying around), the motion of impeachment of the Chief Justice of Sri Lanka presented by 117 government MPs to the Speaker this week should dispel all such arrant foolishness.

Government’s intention in subordinating the judiciary

Whether the government goes ahead with the impeachment or not, let it be clearly said that the final nail in the metaphorical coffin of the institution of the judiciary in Sri Lanka is already hammered in. The fact that such a motion could have been brought at a time when a Supreme Court decision on the Divineguma Bill is due to be read out in Parliament, unequivocally spells out the government’s intention in subordinating the judiciary to its complete and utter control.

There is moreover a perceptible element of going beyond all norms of decency as exemplified in the scurrilous letter tabled by a government MP in the House last week which put the personal conduct of Sri Lanka’s first woman Chief Justice in issue without any formal verification or substantiation. Is this the purpose for which parliamentary privilege has been conferred upon these so called peoples’ representatives? What outrage is this? It may well be warned that henceforth, any judicial officer would be liable to be attacked in this manner if such abuse of parliamentary privilege is allowed to go unremarked and without collective protest.

Indeed, this incident is similar to the country being informed by none other than the President himself, of a complaint purportedly made by a lady judicial officer against the Secretary to the Judicial Service Commission (JSC), which complaint was in fact later denied by that judicial officer in the relevant inquiry. These are both equally shameful attempts to degrade judicial officers in an attempt to cow them into submission.

Public mystified as to precise charges against Chief Justice

Unlike in the case of the aborted impeachment motions against former Chief Justice Sarath N. Silva brought by the opposition during 2001-2004, the contents of which related to several counts of well documented judicial misconduct that were in the public domain long before they were actually brought to Parliament, here the public is kept in the dark as to what the charges against the incumbent Chief Justice are.

All that we are told by the Media Minister this week is that the Chief Justice has ‘challenged the supremacy of Parliament.’ By logical inference, we are then supposed to link this objection to the fact that the Supreme Court had quite properly, in the initial Determination on the Divineguma Bill, insisted that the government seek the approval of all Provincial Councils prior to bringing it before Parliament? On that same logic, the Supreme Court will then stand accused of that same charge each and every time that it rules that a Bill is inconsistent with the Constitution. One may as well then do away with the Constitution once and for all.

Or is it the fact that one petition in the initial challenge to the Divineguma Bill had been sent to the Secretary General of Parliament and not to the Speaker in terms of Article 121 of the Constitution? Are these fit matters to base an impeachment of the highest judicial officer of the country? This question is self explanatory surely.

Incorrect interpretation of the Constitution

Meanwhile, the Minister of External Affairs has claimed that the very appointment of the Secretary to the JSC was unconstitutional as he was the 29^th in seniority in the relevant list of judicial officers and that only a ‘senior most’ officer should have been appointed. Quite apart from the fact that this objection appears to have dawned on the Minister quite ludicrously only after all this time had lapsed after the appointment, let us enlighten this former Professor of Law who has not only forgotten the basic tenets of the law but has also veritably forgotten to read the Constitution as to what exactly the relevant provisions stipulate.

Article 111(G) of the Constitution states that ‘there shall be a Secretary to the Commission who shall be appointed by the Commission from among senior judicial officers of the Courts of First Instance.’ This Article was brought in by the 17^th Amendment to the Constitution which repealed the earlier Article 113 which stated that ‘there shall be a Secretary to the Commission who shall be appointed by the President in consultation with the Cabinet of Ministers.’ Quite rightly the 17^th Amendment conferred this power of appointment on the Commission itself.  On this reading, the appointment of the current JSC Secretary cannot be faulted. The term ‘senior most’ cannot be read as a gloss into this constitutional provision purely for political expediency and the Minister is himself in immediate breach of the Constitution in attempting to do so.

Moreover, from all accounts, the Minister of External Affairs is wrong not only on the law but also on the facts in his description of the JSC Secretary as being 29^th in seniority. In any event, these objections appear not to have been applied to appointments made by former Chief Justices, one of whom had indeed appointed his own brother as the Secretary. Such objections therefore are clearly reserved peculiarly for those judges who dare to challenge this government even in the most minimal way.

An official communiqué from the JSC may clarify the precise factual issue regarding the seniority objection in the current context but in this environment of extreme intimidation, such clarification seems unlikely. We can only wait and see what the substance of the impeachment motion will disclose and which the Chief Justice will be called upon to answer before a Select Committee of Parliament.

The fundamental propriety of a political forum determining the impeachment of a judicial officer is meanwhile a different question altogether. It deserves to be dealt with in depth elsewhere. However, the notion of parliamentarians sitting as judges to decide the fate of the highest judicial official in the land impacts unpleasantly on the notion of safeguarding the independence of the judiciary.

Impact on the entire institution of justice

Even given this government’s flagrant flouting of the law at many different levels post war, the impeachment of the Chief Justice takes the degeneration of the Constitution to new depths. The contempt displayed for the law is patent. The threat that this holds out to the entire judiciary is clear. From this essential truth, there can be no retraction or withdrawal. In the absence of a spirited public reaction emanating from judges, lawyers, professionals and the general public against this most horrendous exercise of dictatorial power, we may well consider Sri Lanka’s judiciary as being totally unable to perform in its constitutional role in the foreseeable future.

Certainly it is not a mere question of one individual as the Chief Justice being impeached. And putting aside whatever questions that we may have regarding the political process of impeachment of judicial officers, the question here is the context of the impeachment, the vagueness of the charges brought and its clear link to the intimidation of the judiciary when controversial determinations are pending. This is the essence of the crisis that confronts us.

Moreover the fact that the government is going ahead with this farcical impeachment process at the precise time that it is called upon to answer with increasing severity by the international community in regard to its lapses in respecting the Rule of Law also signifies its profound contempt for such mechanisms. The recommendations in the report of the Lessons Learnt and Reconciliation Commission (LLRC) were all predicated on the basic foundation of an independent judiciary. For example, its stress on accountability for enforced disappearances and extra judicial executions flows from its assumption that the country will have independent and fair minded judges who will be able to hear and decide those cases impartially. If that element is taken out, then the LLRC report may well be discarded.

We can only rue what this means for the country, for the dignity of the legal system and for the integrity of the judicial branch of government, sadly battered as it has already been by the ravages of internal and external politicization particularly in the past decade.