By Dharisha Bastians –

Friday, 23 November marks a watershed in Sri Lankan judicial history. For only the second time ever, the country’s top judge has been ordered appear before a parliamentary panel convened to probe charges of misconduct against her in a process that has been roundly criticized as unconstitutional and going against all principles of natural justice. How Chief Justice Shirani Bandaranayake answers her accusers during the process that begins with her ‘summons’ tomorrow, will determine the fate of the country’s judicial system – whether it will submit to executive will or continue to stand firm as the final hurdle on the road to authoritarianism

Justitia, the Roman goddess of justice, is often depicted with a set of scales in one hand and a double-edged sword in another. Later replicas of this icon depict Lady Justice with a blindfold over her eyes.

Through the centuries the statue has come to represent the moral force of the judicial system, with scales to represent the weighing of merits of a case, the sword to symbolise the power of reason and justice and perhaps most importantly, the cover over her eyes to signify the objectivity of the law in the face of identity, money, power or weakness. It is only if the law is blind and judges see nothing but the merits of a specific case that the citizen can be guaranteed fair trial and equality before the law.

Tomorrow, Sri Lanka’s fourth citizen and chief custodian of the people’s judicial power, has been ordered to present herself before a Select Committee of Parliament tasked with probing wide-ranging allegations of ‘improper conduct’ against her. If she answers the summons, Shirani Bandaranayake, Justice of the Supreme Court, Doctor of Law and first female Chief Justice in the country’s judicial history, will learn what others have learned before her – that in President Mahinda Rajapaksa’s administration, the fall from grace often has brutal consequences.

Ironically, the most fundamental question regarding this attempted impeachment of Chief Justice Shirani Bandaranayake is whether there is any chance of objectivity in her case, whether she will be guaranteed the right to a fair trial, even as Government legislators presume to judge the merits of the impeachment motion against her despite the obvious perceptions of bias inherent to the process.

Senior lawyers point out that process to impeach the Chief Justice violates the legal principle of nemo iudex in sua causa or ‘that no man should be judge in his own cause’ because the motion will be heard by panel of members of whom a significant majority hail from the same Government that is bringing the charges against her.
Perhaps this watershed moment will reinforce for the Chief Justice and every judge in the land, how critical the independence of judicial officers is to the safeguarding of individual freedoms. But there is no guarantee in this case that the rights of the Chief Justice will be upheld as the PSC begins deliberations on the charges against her.

Legal action against PSC

On Monday, good governance proponent and former private sector player Chandra Jayaratne filed a writ of prohibition in the Court of Appeal seeking a stay order against the PSC proceedings against the Chief Justice. The petition along with other similar applications filed the next day, contend that the Select Committee process violates Article 4 (c) of the Constitution which vests the judicial power of the people in the courts of law except in matters pertaining to privilege of Parliament members.

The contention of the petitions is that Standing Order 78A which was hurriedly constituted during the impeachment proceedings against Chief Justice Neville Samarakoon in 1984, provides for the setting up of a Parliamentary Select Committee to probe the impeachment, but a Standing Order cannot vest the judicial power of the people in a body of its choice, in violation of the Constitution of Sri Lanka. Since the questions in the petitions pertain to Article 107 of the Constitution, the Court of Appeals bench has referred the matter to the Supreme Court for interpretation.

A similar turn of events in 2001 when the UNP brought a motion of impeachment against Chief Justice Sarath N. Silva, Speaker Anura Bandaranaike ruled that the Supreme Court had no power to restrain Parliament from exercising powers bestowed by Standing Orders. While the ball might be in the Supreme Court now in terms of a Constitutional interpretation of Article 107 (3), whatever the court rules, Parliament in the past has shown that it believes it is not bound by the determination if it directly pertains to the exercise of its powers. In fact, if it comes down to a case of the Supreme Court vs. the Parliament, some Opposition MPs will likely rally with the Government to declare their supremacy over the courts.

However, senior lawyers argue that it is not a battle for supremacy between the Judiciary and the Legislature, but the fact that in a republic, the Constitution is supreme and therefore, parliament can also exercise its power only within the confines of the Constitution. And whether this is to the liking of the ruling powers or not, the guardian and sole interpreter of the Constitution is the Supreme Court of Sri Lanka. As the debate crescendos, some analysts are predicting a Constitutional crisis in Sri Lanka’s not too distant future, if both courts and Government prove immovable.

Dinesh’s dilemma

The problem with the Select Committee’s capacity to embark on a judicial endeavour has been a contention regarding the impeachment process that has prevailed since the first attempted impeachment of Chief Justice Samarakoon, when the J.R. Jayewardene Government realised that the Constitution did not set out a process by which the ‘misbehaviour and improper conduct’ by a judge could be proved.

Each time there is a renewed attempt to impeach a top judge, the crisis comes back to the fore, resulting in a spate of legal challenges to the impeachment move. Interestingly, it was problem with the process highlighted in a dissenting report of the PSC chaired by Lalith Athulathmudali in 1984, submitted to the Speaker by the opposition. According to former Attorney General and Permanent Secretary to the Ministry of Justice and current coordinator of the Judicial Integrity Group, Nihal Jayawickrema, these three members opined that the President should refer to the Supreme Court for an advisory opinion on the question they had raised at the first meeting of the Select Committee.

At the beginning of the proceedings, Jayawickrema says, these three members raised “preliminary objections that the committee could not conclude that there was ‘proved misbehaviour’ unless it had previously been judicially determined”. In other words, the Opposition members were saying that the Select Committee did not possess the capacity or power to examine the matter judicially.

Interestingly, three members of the Opposition at the time were Anura Bandaranaike, Sarath Muttetuwegama and Dinesh Gunawardane. Gunewardane holds the position of Chief Government Whip in the present Sri Lankan Parliament and it remains to be seen what his position on the impeachment proceedings will be in the present context.

During the impeachment process against Neville Samarakoon, precedents in place internationally at the time, in India specifically, was for the Speaker to set up a panel made up of one judge of the Supreme Court, one Chief Justice of the High Courts and one eminent jurist. This system was not replicated in Standing Order 78A of 1984, with the Speaker instead being empowered to appoint members of the legislature to stand in judgment of a case against a top judge.

International standards

It is now 2012. International law relating to the conduct of the judiciary and preserving the independence of the judiciary, including the UN Basic Principles on the Independence of the Judiciary (1985) and the Bangalore principles, have become the standard in the civilised world for ensuring a robust justice system in democracies. In vibrant democracies in Europe and other parts of the world, disciplinary action against judicial officers is taken by independent tribunals or bodies that are judicial in nature, and completely independent of the executive and the legislature. Such safeguards prevent political witch hunts against judges by politicians that erode justice systems and intimidate the courts into submission.

Change has come even to India, just across our borders, where “the Judicial Standards and Accountability Act of 2012 enables Parliament to proceed with a resolution for the removal of a Judge only after the President has forwarded to it the report of the National Judicial Oversight Committee which consists of a retired Chief Justice, a Judge of the Supreme Court, the Chief Justice of a High Court, the Attorney General, and an ‘eminent member’ nominated by the President,” according to Jayawickrema.

Impeachment process changed in 2000 draft constitution

It is not as if Sri Lanka’s leaders have never realised the importance of keeping up with the times in this regard. President Mahinda Rajapaksa was a member of the Government that sought to make changes to the process to remove judges through the Draft Constitution presented to Parliament by President Chandrika Kumaratunga in 2000.

In a statement regarding what they called a “deeply-flawed impeachment process,” Professor Savitri Goonesekere and Dr. Jayantha Dhanapala on behalf of the Friday Forum, a citizens’ movement for good governance, explained how the Draft Constitution of 2000 made provisions for the removal of judges that was more in line with the democratic standards espoused today.

“The need for change was recognised 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,” the Friday Forum said.

Prof. Goonesekere and Dr. Dhanapala contend that although the draft constitution was not adopted, the provision on impeachment was never a bone of contention. “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.”

Readying for Friday

Despite the strong resistance it has encountered from the legal fraternity and civil society regarding the move to remove the Chief Justice, the Government looks well on its way.

Last week, top officials of the Rajapaksa administration summoned Government members of the PSC to dispense clear instructions. Senior SLFP members on the Committee balked at the instructions that were clearly aimed at humiliating the Chief Justice and would further erode confidence in the process. The Government members were given instructions about how to confront the Chief Justice when she was in the Parliamentary complex.

In fact, speculation is rife amongst senior members of the Chief Justice’s legal team that it is the Government’s intent to embarrass her in Parliament, with several key lawyers saying they expect that her official vehicle will not be permitted to drive up to the main entrance. Unauthorised vehicles entering the Parliament premises are only permitted up to a certain point, after which visitors to the Legislature must board a special shuttle bus that takes them to the entrance. Government insiders claim there are also plans afoot to keep the Chief Justice standing inside the Parliamentary complex, while she awaits an audience before the PSC.

However, other political observers argue that the Government is unlikely to engage in such pettiness because it will only erode the legitimacy of the process and reinforce the notion that the impeachment is a reprisal, especially if the treatment meted out to her were to attain publicity. PSC proceedings will remain secret until deliberations are concluded and will be made public only in the event she is found guilty of the charges against her.

International outcry

Even as the Government gears up for the battle against the Chief Justice, it is facing a hailstorm of outrage and criticism from the international community. The United Nations Special Rapporteur on the independence of judges and lawyers Gabriela Knaul in a statement recently said that Article 107(3) of the Constitution “gives Parliament undue control over the Judiciary and is therefore incompatible with both the principle of separation of powers and Article 14 of the International Covenant on Civil and Political Rights, to which Sri Lanka is a signatory”.

The International Commission of Jurists has also stated that the impeachment process must follow international standards of due process. The US Government earlier this week reiterated that it was deeply concerned about the impeachment moves against the Chief Justice.

Even though the Government of Sri Lanka believes it is acting within the framework of the constitution to remove a judge, as asserted by Presidential Human Rights Envoy Mahinda Samarasinghe when the issue was raised at the Universal Periodic Review last month, the message that has gone out to the world is that the impeachment is a political reprisal against the highest court, because it comes on the heels of escalating tensions between two arms of the State and several key rulings by the Supreme Court that have proved unfavourable to the ruling regime.

Shadows over CHOGM 2013

But perhaps the only section of the world community the Government is worried about is the Commonwealth. Sri Lanka made a desperate bid for the Commonwealth Games in 2018 and it has fought hard to remain the host of the Commonwealth Heads of Government meeting scheduled for 2013, despite stiff opposition from key member states of the union which are appalled at Sri Lanka’s lack of action on its human rights record.
Earlier this month, Commonwealth Secretary General Kamalesh Sharma expressed concern about move to impeach Chief Justice Bandaranayake and said that the “Commonwealth believes the preservation of the rule of law and independence of the judiciary are vital to the healthy functioning of a democracy. He noted: “The Commonwealth’s Latimer House Principles, which govern the relationship between the three branches of government, are a cornerstone of our association’s values.”

As a member of the Commonwealth, Sri Lanka has committed to uphold these principles governing the separation of powers. As recently as September this year, Sri Lanka hosted the Commonwealth Parliamentary Association (CPA) annual conference where parliamentarians from the Commonwealth pledged to strengthen parliamentary process and engage in good practices.

Sri Lanka is the current President of the CPA and the conference sessions were chaired by Speaker of Parliament Chamal Rajapaksa. All this places a great onus on the Speaker to ensure that the Select Committee process to impeach the Chief Justice is transparent and above reproach, since erosion of confidence in the process would cause significant embarrassment to the Sri Lankan Parliament and the Speaker himself. Speaker Rajapaksa, being a veteran politician, will no doubt strive to maintain impartiality and provide sound counsel to the 225-member Legislature that will be the primary focus during the impeachment proceedings.

Mangala speaks out

Last Saturday, Opposition lawmaker and former Foreign Minister of Sri Lanka Mangala Samaraweera in his Budget speech asserted that the country was in crisis because of what he called a ‘constitutional witch-hunt’ against the Judiciary.

Speaking in Parliament, Samaraweera said that a shoddy charge sheet full of factual errors had been rushed to Parliament because the Chief Justice and the Judiciary were being perceived as a major stumbling block for the ruling administration. The Speaker of Parliament must ensure that the impeachment proceedings are in line with the Latimer House Commonwealth Principles on the three branches of government, Samaraweera said. The Opposition Parliamentarian asserted that Sri Lanka had already violated some of these principles.
“In the Latimer House guidelines, it says, ‘In cases where a judge is at risk of removal, the judge must have the right to be fully informed of the charges to be presented at the hearing, to make a full defence by an independent and impartial tribunal’. The tribunal appointed for the purpose of examining the motion is far from impartial and heavily loaded in the Government’s favour,” Samaraweera charged, adding his colourful description that the process was akin to an inquisition from the Dark Ages. Samaraweera may not be too far from the mark.

It is now being reported that the participation of several key member states at CHOGM 2013 hangs in the balance following the Government’s decision to move the impeachment motion against the head of the country’s judiciary. Several Commonwealth Governments, led by Britain and Canada, are closely watching the proceedings to remove the Chief Justice and how the process goes could finally determine whether or not they will be in Colombo next year.

Senior lawyers and politicians in the country have also come out strongly against the impeachment motion, in a bid to exert pressure on the Government. At an event held at the Public Library on Tuesday, Jayampathy Wickremaratne said that UPFA MP Arundika Fernando, who is one of the four members who submitted the impeachment motion to the Speaker, said something at a public meeting which was published in the newspaper, which he was yet to deny.

“He said that it was because of the Supreme Court decision on the Divi Neguma bill that the Government decided to bring an impeachment motion. In that case it should be brought against all three judges,” he said.
Meanwhile, Attorney-at-Law Srinath Perera charged at the same event that the Government realised that it has power in the Legislature and the Executive, but it is the Judiciary that will obstruct this journey. “Therefore if the backbone of the Judiciary is broken, it can embark on a victorious journey. If the power of the Judiciary which can stop this journey or even limit the pace of this journey is taken over, then the authorities will have the opportunities to run a one-man race,” Perera said.

Still the greatest hope

All this notwithstanding, if history is anything to go by, it appears as if the outcome will be a foregone conclusion. There is tumult in the legal fraternity regarding the impeachment, with many members of the community claiming that the Chief Justice has not made too many friends during her time on the bench. Indeed it is apparent that moves by the higher Judiciary to uphold the Constitution and blockade a Government march to absolute power were somewhat belated. In fact the Opposition appears to be nursing the same grudge against members of the higher courts in their refusal to rise against the perceived injustice of the impeachment move.

But activists warn that making this about an individual is a detrimental path. Merits of the case notwithstanding, motive behind the impeachment has a tremendous bearing on the institution of justice in Sri Lanka. It is those institutions the opposition and civil society must strive to defend. If the impeachment motion goes through, it will render the next Chief Justice powerless before an all-powerful Executive and a docile Legislature. Such a state of affairs directly affects the citizen. It may be the UNP’s calculation that the Government will lose legitimacy internationally through the process, but in the meantime, Sri Lankans will find themselves bereft of redress.

In the recent past, the Supreme Court has stood in the way of political discrimination, arbitrary arrest and unconstitutional fiscal practices. In doing so, they have sought to protect the people of the north, by ruling that the Northern Governor cannot stand in for a democratically-elected provincial council in ratifying an unconstitutional bill. It has upheld journalists’ rights by giving leave to proceed in the Sri Lanka Mirror cases, saying the raid by the CID was a blow to civil liberties. In its determination on the Appropriation Bill, the Supreme Court sought to protect public money from the arbitrary control of the Executive. Sri Lanka’s justice system may be a far cry from perfect, but it has attempted to redeem itself in the recent past and it remains, still, democracy’s greatest hope. In that sense, activists aver, it is the duty of every citizen to stand against attempts to bring about its ruination.

There is a ‘meme’ or image being passed around electronically, that speaks to the heart of a democracy in crisis. First they came for the free media, it says, in an adaptation of German Pastor Martin Niemoller’s famous verse, with a picture featuring slain The Sunday Leader founding Editor Lasantha Wickrematunge, “but I did not speak out, because I was not the media.” Then they came for the Opposition, the meme goes on, with a picture of former Army Chief Sarath Fonseka in the next frame, “but I did not speak out because I was not the Opposition.” Next to a picture of the present Chief Justice it says: “And then they came for the judges, but I did not speak out because I was not a judge. Then they came for me – and there was no free media to cover it, no Opposition to oppose it, no judges to rule against it… there was no one left to speak for me.”

Courtesy Daily FT