Colombo Telegraph

A Deeply Flawed Impeachment Process

By Friday Forum

Prof. Savitri Goonesekere and Dr. Jayantha Dhanapala

The Friday Forum, in a statement issued several weeks ago, referred to the gradual erosion of judicial independence in Sri Lanka, through acts of commission and omission on the part of successive governments. The recent initiative by members of Parliament seeking to impeach the Chief Justice, Dr Shirani Bandaranayaka, coincided with the conclusion of the second case filed in the Supreme Court challenging the Divineguma Bill.  The timing of the impeachment creates an impression that the government is subverting the right and duty of the Supreme Court under our Constitution, to review and determine the validity of proposed legislation, without interference from the legislative and executive branches of government.  The impeachment motion can therefore be perceived as an attack on an institution that is expected to function independently in the public interest.

The impeachment of a Chief Justice or judge of the Supreme Court is a serious matter, when these persons are guaranteed security of tenure in order to ensure impartial administration of justice.  In an unprecedented initiative, an impeachment motion has been presented in Parliament against the presiding judge of Courts consisting of three Supreme Court judges that determined each of the Divineguma Bill cases. The motion of impeachment was presented in Parliament even before the second court order was sent to the speaker.  The selective manner in which the government has initiated these impeachment proceedings against the Chief Justice, gives rise to grave concern about Parliament’s exercise of its powers of impeachment.

The Friday Forum in its earlier statement referred to the deplorable manner in which the executive has given political appointments to family members of the Supreme Court, creating serious problems of conflict of interests.  Ironically one of the charges in the impeachment motion against the Chief Justice refers to the alleged conflict of interest created by a political appointment given to Justice Bandaranayaka’s husband, immediately prior to her appointment as Chief Justice.

The Supreme Court of this country has in recent years pronounced judgments that have been criticized for their failure to protect the sovereignty and rights of the People.  The determination in the 18th Amendment case, which contributed to the removal of the limits on the term of office of the Executive President, and the elimination of the 17th Amendment procedures for appointing the Police, Public Service and other independent commissions, was one such decision. Earlier decisions of the Courts have provided the basis for the obnoxious practice of members of parliament elected from one political party, crossing over to the government and retaining their seats in parliament.  In the past, they were unseated when they crossed over, since they no longer represented the voters that elected them.  This jurisprudence has contributed to the government acquiring a 2/3 majority, which the voters of this country did not give the ruling party.

The norms of democratic governance under our Constitution demand that the government accepts judicial decisions that they disapprove of without rancour.  Judicial decisions remain the law of the land until they are overruled or revised by another court, or changed by legislation enacted lawfully by Parliament.  This cardinal principle of good governance is violated when a government approves of judicial decisions that conform with its agenda, and responds with an impeachment motion against the presiding judge, in particular cases decided by the Supreme Court.  In acting in this manner the government interferes with the exercise of judicial authority by an individual judge, as well as by a lawfully constituted Court of Justice.

During the attempted impeachment of Chief Justice Neville Samarakoon it was argued vigorously and cogently that the investigation and determination by a Select Committee of Parliament of the allegations against him was unconstitutional. Our Constitution, it was pointed out, provides in Article 4(c) that

“The judicial power of the people shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognized, by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, wherein the judicial power of the People may be exercised directly by Parliament according to law.”

The only exception to Parliament exercising judicial power is as regards its own privileges, immunities and powers. Investigation and proof of misbehaviour or incapacity of a judge it is argued does not come within this exception.  Therefore, when Article 107 states that Parliament shall by law or by Standing Order  provide for all matters relating to an address of parliament on the removal of a judge, including investigation and proof, it could not have envisaged enabling trial by a Select Committee of Parliament.

Quite apart from the above legal argument, it is crystal clear that the process is deeply flawed in principle. The current Select Committee procedure does not provide for the investigation and determination of the allegations by an independent judicial body. It permits Parliament to be a judge in its own cause at every stage of the impeachment proceedings. It has been the subject of repeated criticism ever since the 1984 proceedings against Chief Justice Samarakoon.

The need for change was recognized in the draft Constitution of 2000 which provided for a hearing, in the case of allegations against a Chief Justice, by three persons who hold or have held office as judges of the highest Court of a Commonwealth country. In the case of other superior court judges, it provided for the hearing to be by three persons who hold or have held office as judges of the Supreme Court or Court of Appeal. That draft Constitution was proposed by a government of the same party as the present President, who was then one of its Cabinet Ministers. Although it was not proceeded with, the above provision in the draft Constitution on impeachment was never a matter of controversy. It is incumbent on the government to abandon its present course and to stand by its welcome commitment embodied in the draft constitution of 2000.

Dr Jayantha Dhanapala        and                   Professor Savitri Goonesekere

On behalf of Friday Forum, the Group of Concerned Citizens

Jayantha Dhanapala, Professor Savitri Goonesekere, Rt. Rev. Duleep de Chickera, Professor Arjuna Aluwihare, Anne Abeysekera, Dr. Jayampathy Wickremaratne, Tissa Jayatillaka, Professor Ranjini Obeysekere, Shanthi Dias, Damaris Wickremasekera, Dr. Deepika Udagama, Sithie Tiruchelvam,       Lanka Nesiah, Dr. A.C.Visvalingam, Dr. Camena Gunaratne, Suriya Wickremasinghe, D Wijayanandana,    Radhika Coomaraswamy, Faiz-ur Rahman, Manouri Muttetuwegama,  Daneshan Casie Chetty,             Rev. Dr. Jayasiri Peiris, J. C. Weliamuna, Dr U.Pethiyagoda, Ranjit Fernando, Dr. Devanesan Nesiah, Ahilan Kadirgamar, Javid Yusf, Chandra Jayaratne

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