By Malinda Seneviratne –
The Bar Association of Sri Lanka (BASL) adopted three resolutions yesterday relating to the impeachment of the Chief Justice. In essence, the BASL requests that the President re-consider the impeachment, called for ‘the enactment of procedural laws in relation to the removal of judges of the Superior Courts while ensuring a fair trial by adhering to principles of natural justice’ before proceeding if the first request is turned down, and if the CJ is removed without such enactment and fair-trial guarantees to ‘not welcome’ the CJ’s successor.
The second and third resolutions clearly assume that the first (request) would be turned down. The BASL implies in the second resolution that there is a constitutional flaw. Calling for law-change in mid-process could open a legal and constitutional (if not ethical) can of worms. Constitutions are not cast in stone, which is why there are provisions for amendment. What stands has stood, for better or worse, for close to three decades without a murmur of concern being raised by the BASL or anyone else. This raises the question, ‘Was the BASL ignorant of relevant articles in the Constitution all this time?’ There was politics then and there is politics now, this much is clear. If the rules can’t keep politics out, then they need to be changed. Not in the mid-process, not least of all for the bad precedent it sets.
The allusion to ‘natural justice’ is interesting. Many BASL movers and shakers are also vociferous supporters of a query currently in the Supreme Court regarding the constitutionality of the impeachment process, essentially asking the CJ to offer determination on a case whose outcome may be detrimental to her interests. That ‘violation of natural justice’ has not warranted BASL comment. Neither has the BASL thought fit to observe that if current strictures are inadequate, illegal or violate principles of natural justice it follows that a CJ is unimpeachable, a sorry state of affair which rebels against the fundamental principal of equality before the law.
The third resolution is a threat, unadulterated. It appears that the BASL, the governing body of lawyers, has erred on at least 3 counts here.
Firstly, Sec 41 (1) of the Judicature Act gives an Attorney-at-Law an unimpaired and unhindered right to appear before any court or tribunal set up for the administration of justice. Resolution 3 takes away this statutory right. Secondly, If the CJ is impeached it would have been done both constitutionally and legally (never mind the morality of intent) and therefore the BASL has to recognize it. Thirdly there is a Constitutional requirement for the President to appoint a new CJ and a new CJ would be appointed constitutionally and legally; therefore there is no ground for the BASL to not recognize a new CJ and to prevent lawyers from appearing before him/her.
The BASL has every right to engage in politics. Responsibility and dignity cannot be demanded but only observed in word and deed and indeed breach of the same. The BASL was political when its members, with or without the blessings of the body, turned the Supreme Court into a kattadiya’s carnival, and unknowingly or unknowingly gravely compromised the dignity of the post of Chief Justice by taking the politicization of the impeachment to a higher level. How their high minded notions of ‘natural justice’ and ‘impartiality’ are served by appearing before a judge who they cheered and whose ‘nod’ they received, they have the intelligence to deduce.
It is easy to take refuge in the notion that if everything is out of order, it’s perfectly alright to be out of order ourselves. BASL moves, despite all this, appears to be symptomatic of constitutional flaw no less pronounced than other articulations of the same errors. It calls not for constitutional tweaking, but comprehensive constitution-review with a view to develop a fresh document, a 3rd Republican Constitution.