By Rajiva Wijesinha –

Dr. Rajiva Wijesinha MP

One of the saddest aspects of the recent attempt to impeachment the Chief Justice is that it is concerned with punishment rather than reform. This fundamental flaw in our judicial system was diagnosed in the President’s budget speech last year, when he called for reforms that would limit unnecessary remanding and employ rehabilitation rather than retribution for more offenders. But, characteristically, those suggestions were ignored, and so we had regular riots in our prisons during the past year.

I am not of course suggesting that we should try to reform the Chief Justice or seek to rehabilitate her. But we should certainly set in place systems that will prevent the type of abuse that has taken place.

The abuse has now boiled down to three issues. When the controversy first erupted, the Liberal Party issued a statement which noted that ‘what appear to be the principal and indeed only charges possibly warranting impeachment, those relating to financial misbehaviour, clearly require judicial investigation before any decision can be reached.’ We thought the several charges at the end related to trivial issues and, though the Parliamentary Select Committee report does not quite say this, it makes it clear that there is no need to explore these further.

With regard to the charges relating to financial misbehavior, the first is clearly the most serious. I am not referring to the fact that she bought a house from Trillium, but rather to the fact that she headed the bench looking into Trillium issues. More shockingly, she had removed the bench doing this previously – and doing this swiftly and effectively, I believe – and introduced herself.

That she herself realized this was improper was obvious from the fact that, soon after the charges were brought, she recused herself. This confirms my view that she is a clever person who understands what judicial propriety is, and that in this case she had violated norms.

Whether that is a reason to impeach her is another question. My point here is that no one is addressing the appalling fact that she was able to thus give herself authority over a case in which, if only to a limited extent, she was involved. Equally worrying is the fact that no one raised any questions about this until there seemed reason to impeach her. And I fear government suggested that it was impeachment rather than righting the wrongs that had occurred that was vital, when it brought so many trivial charges, instead of focusing on what might be misconduct, rather than simply bad judgment.

The problem, which I had pointed out previously this year, long before the crisis blew up, is that we pay insufficient attention to process. I take no credit for this, since process is something Liberals realize must be taken seriously. Unfortunately, given that Sri Lankan politics is otherwise without ideological underpinnings, no one else thinks of process, or perhaps even understands this. I am especially sorry that this negligence dogs even the former Marxist parties. They used to be keen on upholding parliamentary process, in the strange combination of Trotsky and Laski they propagated, but all that went by the board with the woeful constitution of 1978.

We need clear and efficacious internal rules of conduct for judges. While these should ideally be formulated by the Judicial Service Commission, if that is not up to the task, Parliament must do the job. Justice is administered by Courts set up by Parliament, and that means Parliament has every right to lay down the procedures that such Courts and those who preside over them should follow. Amongst the rules that should be formulated are ones to prevent conflicts of interest arising, and these should err on the side of caution.

That is more important than impeaching the Chief Justice, for unless we introduce such reforms, nothing is to prevent a future Chief Justice behaving equally badly. And to ensure checks, which are necessary for all branches of government, we should introduce collegiate responsibility, so that the Chief Justice does not make decisions arbitrarily, but does so in consultation with senior judges of the Court. In addition, we should encourage questioning of decisions, by making it clear that contempt of court means contempt, not requesting explanations or clarifications. Unfortunately, after the disgraceful abuse of contempt provisions by the previous Chief Justice with regard to S B Dissanayake, the feeling has arisen that any questioning of court decisions can be contempt. This is absurd, and greater freedom for holding the courts also to account must be entrenched.

I will return to other issues, but the need to develop norms must be understood. This is more important than punishment for violation of what had not been established as a norm.