By Kamal Nissanka –

Kamal Nissanka

The impeachment motion filed against the chief justice of Sri Lanka a few days ago (Nov 1, 2012) has resulted in bringing a political storm especially within the legal and political sphere of the island. The voices of politicians and political parties are heard around on the theme while the legal community is coming forward with various constructive criticisms regarding the whole national drama. In this developing situation it is worthwhile to look in comparison another friendly Asian country that brought its Chief Justice through an impeachment process this year and dismissed him from the high profile post in May 2012. He was Mr. Renato .C. Corona, then Chief Justice of Philippines.

Mr. Corona was made the chief justice of Philippines just a few weeks back to the Presidential Election of 2010 by then Philippine President Ms Gloria Arroyo. Previously he was the Chief of Staff of the former President Ms Gloria Arroyo administration. In our situation the incumbent Chief Justice was appointed a Supreme Court judge in 1996 by then President Ms. Chandrika Kumaratunga. When she assumed the duties as a Supreme Court judge she had to face three fundamental rights cases against her which were decided by a bench of seven judges. One petitioner argued that Ms Shirani Bandaranayaka was pro devolution. It was a period where the People’s Alliance government under Ms Chandrika Kumaratunga was pushing her draft for a new constitution. Former President might have thought that a judge in the caliber of Ms Shirani Bandaranayake would have been advantageous to the expected legal challenges in that era. We don’t know the exact rationale behind the appointment surpassing carrier judges. It took further 15 more years for Ms Shirani Bandaranayaka to sit on the august bench of the Supreme Court as the first woman Chief Justice in Democratic Socialist Republic of Sri Lanka.

The saga of impeachment is also linked to her husband’s fate, a political appointee by the President Mr. Mahinda Rajapakse as a member of the board of directors, first to Insurance Cooperation, then to the Lanka Hospitals and finaly as the chairman of the National Savings Bank (NSB). Whether he was correct or incorrect, corrupted or clean under his chairmanship the NSB was involved in an unjustified share deal bringing public distrust on the bank. Two weeks before the impeachment motion against chief justice, a case was filed against her husband on bribery and corruption charges.

The process of impeachment is now clear. Once the speaker of the house received the motion with at least signatures of one third of MP’s it could be tabled and a parliamentary select committee is to be appointed. Then the select committee acts as a tribunal. Chief justice can answer the charges by writing or through representations. If a select committee is to be appointed the majority will be the government members. It is the duty of the speaker to determine that the charges against Chief Justice are coming within the purview of misbehavior or incapacity. “Incapacity” is the physical or mental inability function in the high profile office. I think the element “incapacity” has no relevance in this context. In that sense the only element that can be targeted at the Chief Justice is “misbehavior” and thus all the charges leveled at her will come within the purview of “misbehavior”.

If the element of “misbehavior “is the charge or the charges are within the interpretation of the word “misbehavior” a question arises as to the integrity and suitability of the select committee. Further questions arise as to the standard of proof that is to be applied? Are the charges to be proved beyond reasonable doubt as in criminal cases or on the basis preponderance of evidence rule applied in civil suits or principle of substantiality of evidence as in administrative actions? Is Chief justice being presumed innocence until she is proved guilty as guaranteed by Article 13(5) of the Constitution? There are also issues of natural justice towards the chief justice in the process of impeachment. Is the parliamentary select committee going to apply the “due process of law ‘clause that exists in many democracies to ensure that the fundamentals of fair procedure are applied? Can the select committee act without any appearance of bias? Can the member who signed the impeachment motion act in the select committee? If so would it be against rule against bias? If the verdict of the parliament to impeach her, cannot be appealed, isn’t that a lacunae in the 1978?

Under the Article XI, Section 2, of the 1987 Philippine Constitution a judge of the Supreme Court or high official could be charged in impeachment if he involves in:

1. Betrayal of Public Trust

2. Graft and Corruption

3. Culpable Violation of Constitution.

In Corona’s case on December 2011 the House of Representatives passed a motion for impeachment with signatures of 188 members out of 285memebrs. The impeachment charge sheet composed of 8 charges. Those eight charges could be defined within three areas under the constitution.

He was allowed to make a written answer and answered all charges and the next step was to initiate the inquiry on 12 January 2012.

In a nutshell charges against him were as follows:

1. Track record marked by partiality and subservient in cases involving Ms Arroyo.

2. Failed to disclose to the public his statements of assets and liabilities required by constitution

3. Alleged that failed to observe stringent standards first involving a labor case against Philippine Airlines, second “Vizconde Massacre Case”, appointment of Corona’s wife in a government position

4. Disregarded the principle of separation of powers by giving an order against House of Representatives.

5. Not followed earlier decisions of the SC

6. Created a committee to investigate the activities of another judge when he had no such authority

7. A partial granting of restraining order in favor of Arroyo to escape prosecution

8. Failure to report the status of Judiciary Development Fund and Special Allowance of Judiciary Fund.

In Philippines an impeachment motion originates from the House of Representatives and once it is passed, the Senate acts as a judiciary and to find guilty the senate has to pass it through 2/3^rd majority. The Senate is composed of 24elected members. In Corona’s impeachment, the Senate passed it by 20- 3 majority vote. On Corona’s case the senate only considered one charge in detail and that was Charge No. 2 regarding non disclosure of assets and liabilities and found that it was proved and thereafter other charges were not taken into investigation and consideration. Under the Article XI, Section 3(7) of the 1987 Philippine constitution, Mr. Corona was removed from office and he is unable to hold public office.

In the impeachment process of the Chief Justice of Sri Lanka, the selectcommittee composition is very important. If the select committee is to be composed of members who had given consent to the impeachment motion, that will definitely lead to a situation where natural justice and fair play is denied to the Chief Justice. In Philippine the impeachment process or trial was much transparent and public were given a chance to witness proceedings through electronic live telecast where in Sri Lanka the impeachment process would be a hidden process. In that sense it will lack the idea of openness of judicial proceedings .Further in case of Philippine it took six month to conduct the whole proceeding while in our context a mere one month is allocated and Chief Justice will be disentitled to “ fair play’, adopted by advanced legal systems.

 *Writer is the Secretary General of the Liberal Party of Sri Lanka,  Attorney-at-Law, BA (Hon), PgD(International Relations)