Three Challenges For The New Chief Justice

By Jehan Perera -

Jehan Perera – colombo telegraph

Jehan Perera

The government acted swiftly to make the impeachment of Chief Justice Shirani Bandaranayake a closed chapter. President Mahinda Rajapaksa did not appoint the advisory committee to provide him with a second opinion on the merits of impeachment.  This was seen as a time buying exercise to enable the President to find a statesmanlike way out of the imbroglio that the impeachment had apparently created.  However, there was no hesitation on the President’s part.  He did not balk at removing the Chief Justice from her office despite the ruling by the Supreme Court that the impeachment process was not valid in law and when the public protest against the impeachment process was at its peak.  He also immediately speedily appointed her successor, President Advisor and former Attorney General Mohan Peiris to be the new Chief Justice. 

Most lawyers were not in favour of the impeachment process, and many were bitterly opposed to it.  The Bar Association of Sri Lanka even passed a resolution not to welcome any new Chief Justice appointed by the government in the context of the impeachment of Chief Justice Shirani Bandaranayake. There are lawyers groups that continue to hold that Chief Justice Bandaranayake remains Chief Justice and that her removal by President Rajapaksa is not legally valid.  This is on account of the rulings by the country’s highest courts of law that the impeachment process was flawed and a nullity in law.  According to media reports, the Bar Association is standing by its decision not to welcome the new Chief Justice at a ceremonial sitting to be attended by senior lawyers.   The first challenge that the new Chief Justice will face will be to heal the divisions that have occurred in the legal community.

ENDING IMPUNITY

There has been further fallout from the impeachment crisis that blots the democratic credentials of the government. Incidents that took place during the course of the impeachment included the flouting of decisions of the highest courts in the country and attacks by armed thugs on peaceful protesters in the presence of police personnel.  Now some of the lawyers and civic activists who exercised their right of peaceful protest against the impeachment have been threatened in the aftermath of the impeachment and fear for their safety.  Letters from a purported patriotic organization have been sent to the lawyers and civic activists who led the campaign against the impeachment of the Chief Justice.

The efforts to brand the work of those who stood up for the Rule of Law, checks and balances on the exercise of power and for international standards in governance as being traitors and deserving of punishment is deplorable. The right to dissent is a fundamental right in any society and requires to be upheld.  The reason why people protest collectively is because they sense a moral transgression although they may not be individually affected.  It speaks much for the conscience of our society and shows that there are people still who are prepared to stand against injustice.   It is to be hoped that the new Chief Justice will ensure that legal processes are not obstructed as they appear to be when politically motivated violence and thuggery is concerned.

There is a need to heal the divisions that occurred and restore the Rule of Law that suffered during the impeachment process.  The failure of law and order and to follow the Rule of Law in Sri Lanka has already led to international criticisms and to calls for sanctions.  The government cannot abdicate its responsibility to protect the dissenters from underworld activities for sooner or later the blame will descend on the government. The work of bridging the ethnic and political divides and bringing reconciliation and binding up the wounds of war remain this country’s greatest challenge.  Indeed that is what the Lessons Learnt and Reconciliation Commission appointed by the government has also said.  Accordingly, the second challenge to the new Chief Justice would be to provide umbrella cover, if not moral and ethical leadership, to efforts that put an end to the culture of threats and impunity.  Effective action in this regard that is spearheaded by the new Chief Justice would do much to enhance his credibility with the legal community and the people at large.

REFERENDUM REQUIREMENT

The collapse of the public resistance to the impeachment would have come as a surprise to those who believed in the theory of legal processes and the primacy of the Rule of Law.  Those who saw the impeachment in terms of the three great branches of government being locked in combat as equals may have been theoretically correct.  The outcome of the impeachment demonstrated was the asymmetry of power in the three branches of government in practice.  Although theoretically on an equal footing as co-equal branches of government, the executive, legislature and judiciary are unequal when it comes to raw power of enforcement of decisions.  The judiciary has no men at arms to call upon.  It is the executive branch of government that has the power of enforcement.

In the aftermath of the contest over the impeachment, the government appears determined to ensure that a similar challenge will not be mounted from the ranks of the judiciary against the government in the future.  A new constitutional amendment, the 19th Amendment is reported to be on the way.  This will be to restrict the term of office of a Chief Justice to just three years and make provision that Standing Orders of Parliament are part of the country’s laws.  The Constitution now stipulates that the age of retirement of Judges of the Supreme Court shall be 65 years and of Judges of the Court of Appeal shall be 63 years.  Shirani Bandaranayake who was appointed Chief Justice in May 2011 could have continued in office till 2023 if she was not impeached and removed from office.

By restricting the term of office of the any Chief Justice to three years, the government will be making it harder for any judge to become a thorn in its flesh in the future.  Before a Chief Justice has time to consolidate his or her position among the other judges, his or her term of office will be coming to an end.  A short term of office would not permit any future Chief Justice to gain a position of leadership and influence within the judiciary to challenge the government.  A Chief Justice who wishes to remain a little longer in the judiciary as Chief Justice would be compelled to be deferential to the President who is empowered by the 18^th Amendment to appoint the Chief Justice and presumably to extend or terminate his or her term of office.  It is not impossible to believe that next there might be yet another constitutional amendment that imposes similar time limits on all judges of the superior courts.

The proposed 19^th Amendment will clearly weaken the position of the judiciary in relation the government.  This is a shift of constitutional balance and weakens the system of checks and balances.  Therefore it can potentially give rise to a legal challenge in the Supreme Court.  The question to be answered is whether this proposed constitutional amendment brings into play the constitutional requirement of approval by the people at a referendum, in addition to requiring a 2/3 majority in Parliament.  The decision whether to consider the proposed 19^th Amendment as affecting the basic design of the Constitution will fall upon the new Chief Justice.  Strengthening the position of the judiciary as an institution would be his third challenge.