By Rajan Philips –

Rajan Philips

Last year on 16 December, after much hesitation, foot dragging and translation excuses, the government tabled in parliament the report of the LLRC Commission that had been hand delivered to the President more than a month earlier.  This year on 8 December, ignoring calls for patience, due process, fairness and natural justice, a Parliamentary Select Committee – reduced to government members only – rushed to judgment against the country’s Chief Justice, Shirani Bandaranayake, and reported to the Speaker that she is guilty enough to cause an address by parliament for her removal by the President as early as January 2013.

There is a glaring inconsistency in the government’s approach to the professionally produced and generally well received LLRC Report on national reconciliation, on the one hand, and its approach to the unprofessionally botched and generally ridiculed PSC report to get rid of the Chief Justice, on the other.  The government would rather not have had the LLRC Report come into being, but is belligerently determined to proceed with the PSC report and send the Chief Justice packing regardless of its consequences for the people at home and the country’s reputation abroad.

The government seems unconcerned about the damage the impeachment will do to its image before it hosts the Commonwealth summit in Sri Lanka scheduled for 2013.  In February, the government will have to face an IMF review in Colombo, and will have to present its case again to the United Nations Human Rights Commission in Geneva in March. But nothing deters this government. It has got used to getting away with whatever it does regardless of protestations at home or abroad.

The Rajapakse government is behaving like the Republican Party in Washington in getting ready for the New Year.  The latter too is belligerently intransigent and would rather risk America fall off the fiscal cliff of middleclass tax increases and government spending cuts including unemployment allowances (and take down much of the Western world with it) than to agree to increase the tax only on people earning more than $250K an year.  It does not matter to the diehard right wingers that the rich themselves do not mind paying higher taxes and President Obama has agreed as a compromise to raise the no-increase maximum for taxation to $400K.

Similarly, the Rajapakse government would rather have the country plunge into what the Court of Appeal has measuredly called “a chaotic situation” than heed the advice to prorogue parliament and prevent an unnecessary constitutional crisis.

To be clear, the Left Alliance in the UPFA must not be allowed to get away with the feeling that they have done their duty by the country in advising the President to prorogue parliament, when they have in fact let the country down by not taking the lead in vigourously and openly admonishing from the outset that the impeachment initiative is a roguish aberration unworthy of even this government.  The Left Alliance leaders will be called again to show their hands in parliament if the government proceeds to have a vote on the impeachment question in January.  They will have to come up with something better this time than saying ‘No’ in principle, but ‘Aye, Aye, Sir’, in practice, as they did when they voted for the 18^th Amendment.

Judicial sanity in a sea of political madness

Legalities aside and politically speaking, independence of the judiciary was the most recurrent profession of the framers of the 1978 Constitution, who even included ‘Independence of the Judiciary’ in the preamble to the Constitution as one of its founding principles along with Representative Democracy and the assurance of Freedom, Equality, Justice and Fundamental Human Rights to all Sri Lankan Peoples.  Representative democracy and independence of the judiciary are thus given equal weight in the constitution and one does not exist without the other in practice.  The positive purpose of Article 107 Section (2), which is placed under the subhead: ‘Independence of the Judiciary’ in Chapter XV of the Constitution dealing with ‘The Judiciary’, is the assurance of tenure for superior court judges.  The removal of a superior court judge is an extreme exception and is exceptionally dealt with, unlike the removal of any other state official, by requiring an address by parliament and an order by the President.  But removing a superior court is not a ‘constitutional right’ bestowed on parliamentarians.

Government parliamentarians especially the worthies who made up the impeachment select committee have got it wrong in claiming that the removal of the Chief Justice is their ‘constitutional right.’  No, it is an exceptional remedy to avoid the judiciary being embarrassed and paralyzed by the misbehavior or incapacity of an individual judge independent of any action by the government or anyone else.  It is the government that is now paralyzing and embarrassing the judiciary by its ill-intended impeachment motion.  The Constitution confers no ‘right’ on MPs to remove judges, but only assigns them the role they have to play in a process that even the government has agreed needs change but only after the present Chief Justice is removed from office.  It is not natural justice to insist that the present Chief Justice should be dealt with under the current process and that the process should be changed only after the incumbent is removed.

The process of impeachment is now under challenge before the Supreme Court in regard to its constitutionality and before the Court of Appeal for its lack of conformance with the requirements of natural justice.  The Courts cannot wash their hands off these matters like Pontius Pilate.  In terms of the Constitution and adhering to the principles of natural justice the two superior courts will have to hear arguments and make their determinations.  The courts have not questioned the privileges of parliament but are constrained not to ignore the alleged denial of natural justice to a person, in this instance the country’s Chief Justice, by an action of parliament which has nothing to do with the privileges of parliament.  The courts have not issued summons to the Speaker and the PSC members but only notices of proceedings and invited them to give the courts the benefit of their arguments so that the courts could hear all sides and make the best possible determinations on the matters before them.  Parliament and the President must exercise prudence and let the courts make their determinations by proroguing parliament instead of proceeding to act.

In refusing to prorogue parliament the government is being perversely consistent with the mala fide intentions with which it started the impeachment process in the first place.  The government is known to be angry over the temerity of the Supreme Court and the Chief Justice exercising the Court’s “Constitutional jurisdiction” in regard to Divi Neguma Bill.  The apex court has also annoyed the government by picking pertinent holes in the Appropriation Bill.  A presidential minion was reportedly peeved over alleged actions of the Chief Justice and the Judicial Services Commission affecting a lower court magistrate.  Additionally, it has been suggested that the government wants the CJ removed so that there will be no judicial interference in regard to future legislations and transactions that are inconsistent with or in violation of the constitution.

Then there is sheer hubris and ire over the highhandedness of a woman who may have been handpicked to do the political bidding as Chief Justice and who might have been expected to step down when directed.  The woman needed to be taught a lesson seems to have become the consensus in the ruling cabal, even though, as grapevines would have it, the President manifesting his sharp survival instinct did note that the impeachment road carried the potential for political destruction.  In the end, as has now become the standard for this government, the impeachment decision has come to betray all the native trickery in intent and incredible amateurishness in execution.

The entire process – from the drafting up of the allegations, inviting a sitting Supreme Court Justice to give ex-parte evidence, and to finally completing a partisan PSC report, is shot through and through with cheap trickery and chronic amateurism.  The assertion that the PSC process was ‘objective’ because it followed the Constitution is laughable.  This was followed by the lunatic claim by a PSC Member who is also a Minister about a Tamil-Muslim conspiracy in the Court of Appeal against the government, based on his ignorant assumption that two of the three Court of Appeal judges hearing the impeachment petitions are Tamils and the third is a Muslim.  On the contrary, the three Court of Appeal judges include a Sinhalese, a Tamil and a Muslim.  Not that ethnic composition of the Court should matter but that is the standard which government Ministers have lowered themselves to.

The government’s unworthy attempts to divide the judiciary and to divide the Bar Association, not to mention the decision of the government to withdraw funding support for the Annual General Meeting of Judicial Services Association, have backfired.  Although, no formal resolution has been adopted for boycotting a new Chief Justice if one were to be appointed after removing the present incumbent through the ongoing impeachment process, the bandying of the very idea of a boycott should send shivers down the spine of aspiring individuals.

Public office has a way of transforming incumbents in extraordinary ways, and none more so than a judicial office.  Some may recall the somewhat aristocratic remark of a former Chief Justice, Victor Tennekoon, which he made when he was Attorney General during a ceremonial sitting of the Supreme Court to welcome two new judges: “no amount of learning or professional competence will make an ordinary man anything more than ordinary judge.”  It is encouraging that the six superior court judges now in national limelight are proving themselves to be extraordinary.    In the circumstances and whichever way the impeachment dust might settle, the country owes a great deal of gratitude to the three Justices of the Court of Appeal – S. Sriskandarajah, Anil Goonaratne and AWA Salam, and the three Justices of the Supreme Court – Gamini Amaratunga, K. Sripavan and Priyasath Dep, for providing islets of judicial sanity in a treacherous sea of political madness.

 A government that likes chaos

Although the Court of Appeal is duly concerned of an impending chaotic situation constitutionally speaking, the country is already in a chaotic situation in several other respects.  But the government is unconcerned.  Indeed, this government seems to prefer chaotic situations in which it can do anything it wants rather than normal situations when it will have to explain everything it does or it fails to do.  Things will only get worse in the New Year.  Routine government business, already mismanaged in the past year, will be even more neglected in the coming year.  Wrongheaded decisions affecting the economy and equity will be taken without due scrutiny and corrections.  There is more time and energy spent on impeaching the Chief Justice than providing redress to the thousands of flood victims.

The Divi Neguma initiative will be out of its controversial starting block and will muddle forward, or backward and sideward, from ill-conceived policy to ham-handed implementation in the rural hinterland.  There will be new burdens on the poor while politicians wield power and throw away money in the name of poverty alleviation.  In the Colombo heartland, condo-mania will continue with the selling of valuable Colombo properties to foreign developers over sweetheart deals and unaccounted infrastructure costs that the country will have to ultimately pay.  And god knows what other overseas real estate investment (may be a villa in Greece?) will be undertaken by the entrepreneurial Governor of the Central Bank before anyone comes to know of it.

Already the government has finessed the passage of the Appropriation Bill without changing two key provisions in it as directed by the Supreme Court.  The two problematic provisions, as Opposition MP Eran Wickremaratne has pointed out, would allow government ministers taking loans and making withdrawals from the Consolidated without parliament’s scrutiny and express approval.  The legal advice to the government has indicated that these problematic provisions could be passed with a two-thirds majority!  In other words, and thanks to this legal advice, parliament can use a two-thirds majority to abdicate itself of its fiduciary responsibilities.

This is unheard of!  When was the last time an Appropriation Bill was challenged before the Supreme Court?  How could an appropriation bill have been prepared to allow for transactions and withdrawals to be made without the express approval of parliament?  And why would this be necessary in a parliament where more than half the members allegedly signed on to the signing sheet supporting the impeachment petition against the Chief Justice without even seeing the petition?  The manifest answer is to avoid financial transactions becoming public by including them on the order paper even though there is no doubt about the requisite majority for their passage in parliament.  But how more irregular could a government get?  If this is not setting up for daylight robbery of the public purse, what is?  How could people like Tissa Vitarane, Sarath Amunugama and DEW Gunasekara sit on their hands and put up with such nonsense?

Now that a precedent appears to have been established in passing the Appropriation Bill ignoring the directives of the Supreme Court against violating the Constitution, what is the guarantee that the government will honestly make the changes to the Divi Neguma Bill as stipulated by the Supreme Court?  Who is to check?  MPs like Eran Wickremaratne, Harsha de Silva and MA Sumanthiran do bring to the notice of the public the frequent transgressions and irregularities of the government.  But they are reduced to being voices in the opposition wilderness by the Leader of the Opposition who has no fire in his belly and who has proven that he is ‘constitutionally’ incapable of political outrage. To modify what Dennis Healey said of Sir Geoffrey Howe in the British House of Commons: “To be politically attacked by Ranil Wickremasinghe would be like being savaged by a dead sheep!”  No one knows this better than Mahinda Rajapaksa.

Mr. Wickremasinghe has been Leader of the Opposition for 28 years, save the two years or more when he was Prime Minister.  Mr. Rajapaksa has been President for seven years and was Prime Minister for less than two years before that.  The President has at least four more years left in his second term, and thanks to 18A there is no term limit to stop him from running again to be President.  Mr. Wickremasinghe has got his own version of 18A within the UNP giving him control of the Party for six years.  His expectation to win power is more by default – when the country is finally tired of Mahinda Rajapaksa, than through effort – by exposing the myriads of government misdoings and providing serious alternatives in policies and programs.

In other words, Ranil Wickremasinghe wants power delivered to him on a platter.  By his calculation his day could come as early as 2014, the end of a long cycle of 20 years (a nice enough number and generously longer than the 17 year run the UNP had) that an SLFP-led alliance would have been in power.  Never mind if you hear the brothers laughing.  But it is no laughing matter for the country and its people, for whom the question ought to be what good does it do to have these two gentlemen go on indefinitely in their current or future positions?

From Mark Anthony Bracegirdle to Shirani Bandaranayake

There is a third player on stage in the impeachment drama, the Chief Justice. It is not my purpose to discuss the political potentialities of Shirani Bandaranayake.  Of the two main candidates in the 2010 Presidential election, Mahinda Rajapaksa has dared the Chief Justice to enter the ring.  If this was a move of pre-emptive intimidation on the part of a seasoned politician who also considers himself to be a senior lawyer, his former adversary and military hero Sarath Fonseka has once again showed his panache for political malapropism by inviting the beleaguered Chief Justice to enter politics.  What the Chief Justice will or will not do, politically or otherwise, after she ceases to be Chief Justice is of no concern at this stage, but what she will do for the rest of the time she could be in office is of utmost concern.

The unfolding impeachment drama has affixed personal monikers to the three institutions of the State: Mahinda Rajapaksa for the Executive, Ranil Wickremasinghe for Parliament (i.e. leaving out the Speaker and the government side of the legislature who are really part of the Executive), and Shirani Bandaranayake for the Judiciary.  Whether or not Shirani Bandaranayake appreciated this when she was plucked out of academic obscurity into judicial limelight and later elevated to being the Chief Justice, one would hope that the belated baptism of impeachment has given her a proper historical perspective to realize that of the three actors on the impeachment stage she represents the oldest institution in Lanka’s modern history.  The weight of history should be enough to humble as well as enlighten even the most unprepared of incumbents. 

The executive presidency, only thirty five years old, is an upstart in historical terms.  It is prone to behave like an upstart.  The legislature has been in existence for 65 years, or 81 years if counted from 1931, the year when universal franchise was introduced. The Supreme Court, on the other hand, has been a fixture almost from the beginning of British rule in this country.  Admittedly manned by British judges for over a hundred years, the Supreme Court nevertheless was in the forefront of incremental constitutional changes during the British rule.  As historians have noted, the conflicts between the Governor and the Chief Justice dominated the British rule of the colony in the 19^th century.  The judiciary was regulated by separate charters and the Supreme Court established its independence from the Executive Governor from the beginning of constitutional rule in the island.

Perhaps the most sensational manifestation of this independence was the ruling of the Supreme Court in the celebrated Bracegirdle case in 1937.  Mark Anthony Lyster Bracegirdle was a maverick British planter who joined the Lanka Sama Samaja Party a year after it was founded in 1935 and threw himself into its activities against colonial rule.  Alarmed by this ‘treason’, the British Governor at that time, Sir Reginald Stubbs, ordered Bracegirdle arrested and deported.  The LSSP filed a writ of Habeas Corpus application against the arrest and the Supreme Court comprised of three British judges granted the application, declaring the Governor’s order illegal and ordering the release of Bracegirdle instead.

In a twist of history 77 years later, a passage from the judgment of Chief Justice SS Abrahams in the Bracegirdle case has been cited in defence of Sri Lanka’s current Chief Justice in the Court of Appeal and is reproduced in the latter’s ruling.  The citation itself is from a1918 English court ruling that the “jurisdiction of the judges … is the only refuge of the subject against the unlawful acts of the Executive, the higher officials, or more frequently subordinate officials,” and that “… it will always remain the duty of … judges to protect those people.”

Howsoever damning it might be to the Executive and the Legislature that the Bracegirdle ruling should be invoked now, it is also not an edifying experience for the public to see the country’s Chief Justice implicated in all manner of allegations no matter if they are provable or not.  In a sense, the predicaments of the Chief Justice are indicative of a mobile society in which families and extended families of professionals are in a hurry to expand their financial and social capitals as much as possible and as soon as possible.  I have referred to Ms. Bandaranayke’s spousal burdens a number of times in my articles.  On a lesser note, she has also been caught up in the not uncommon sibling nexus through which Sri Lankan expatriates invest in expensive real estate purchases in the natal country using their legitimate earnings in their naturalized countries.

The Chief Justice may not have done anything wrong at all, but with the benefit of hindsight she might be thinking that she has rather done nothing at all.  There is no one, however, who cannot see through the cynical machinations of her accusers who are picking on the Chief Justice while letting the real robbers get away with their loot.

Shirani Bandaranayake deserves a fair process to vindicate her from the allegations against her.  The real question is if she deserves to remain as Chief Justice until retirement even if she is vindicated now. If the people were to get tired of Mahinda Rajapaksa and Ranil Wickremasignhe before their indefinitely desired terms are up, there could be a similar disenchantment with Shirani Bandaranayke as well.  It will not be a bad thing for the country if all three of them could leave on their own terms without being pushed out, but sooner than later.  And it will be a good thing for the country if all three of them, while they are in office, could be pressurized into contributing to reforming the constitution including the provisions for appointing and removing superior court judges.

*Rajan Philips may be contacted at rajanphilips@rogers.com