By Kamal Nissanka –
Sri Lanka is facing a grave crisis as a result of intolerance. Once the Supreme Court the sole authority that possesses the right of interpretation of constitutional provisions had delivered its interpretation on the impeachment of the Chief Justice, the executive and the legislators who had taken oath to protect and safeguard the constitution must uphold the interpretation though it may be a bitter medicine.
Liberals all over the world are keen on upholding three major areas of vital importance in any democratic society namely, independence of judiciary, and rule of law and separation of powers.
So in the present imbroglio liberals cannot see any other option other than obeying to the Supreme Court determination of the constitutionality of Standing Orders in parliament regarding impeachment of superior court judges. Of course Supreme Court decision has made recommendations as to what options are available to the legislature.
If the charges framed against the chief justice were brought on political grounds as a result of the judgments of Town and Country Planning Bill (Amendment) and Divineguma Bill that obstructed the political path of the government, the present judgment on the impeachment resolution might create more deeper vengeance towards the judges of Supreme Court and as well as for those in Court of Appeal. Are you legislators going to impeach all judges?
Therefore it seems that the executive as well as the legislature are in a deeper crisis now. In the present context they cannot believe, trust or rely on in any judge in the Superior Courts. Even if a judge is appeared to be a loyal to the executive, once appointed as Chief Justice he/she might turn against some of the policies of government as our experience with Mr. Sarath Nanda Silva manifests.(He was initially loyal to both President Chandrika Kumaratunga and President Mahinda Rajapaksa)
Bringing an alien stooge to the Supreme Court as Chief Justice after kicking out the incumbent by unlawful forces of intolerance will create a further crisis as international pressure would gather in due course.
Of course superior court judges are not saints or demigods, they are also human beings. They may have their incapacities, misbehaviors and dictatorial tendencies and that is why there is a methodology in advanced democracies to impeach them based on all accepted legal principles and norms.
Now we know that the appointment of a chief justice is also as grave as impeaching a chief justice. The sovereignty is vested in the people and the people’s executive power is exercised by the President. The President should exercise his executive power in a transparent manner in appointing superior court judges. When a mission of Human Rights Institute of International Bar Association with members in 183 countries visited Sri Lanka on the 29th August 2001 on a fact finding mission, it recommended that
“Appointments of judges by the President without an independent process of assessment should cease. All judges should be appointed by an independent process of assessment, based on merit, with names being forwarded to the President or Minister of justice for final appointment.”(Report of the International Bar Association 2001-Sri Lanka: Failing to Protect the Rule of Law and The independence of judiciary, -page 37)
Therefore at this crisis best option is to make proper legislation (a parliamentary act) to impeach the superior court judges and high officials if need arises. What will be the outcome of a debate in the parliament on impeachment? The main questions will be whether standing orders are law or not law, and whether PSE proceedings and findings are lawful or unlawful? As Supreme Court is vested with the sole jurisdiction to determine questions of interpretation and as it has already determined the matter in issue and therefore the debate in the parliament will be a waste of time from the stand point of a law abiding person. All subsequent anti judgment actions and utterances by the legislature, by any single legislator or by any citizen are unlawful.