By Basil Fernando –
Under the present circumstances and under the 1978 constitution, when the president does not want the Chief Justice, the president just tells them to get out and go home. The way he does it is called impeachment proceedings. Once the president decides to file such proceedings – he has a two thirds majority in parliament – the victimized person has no real option. His or her fate is sealed and the only options open are to resign and go away, as Chief Justice Nevil Samarakoon, did it or be impeached and thrown away.
Impeachment is an act of might. The rights and wrongs are not weighed in the matter. So-called charges can be cooked up and may be about the most trivial matters. In an article to a Sinhala paper, Gomin Dayasiri, a senior lawyer, stated that in Sri Lanka a judge can be impeached very small reasons. The charge against Chief Justice Neville Samarakoon was about some comment he made at some school prize giving.
Just last week, at Maha Veediya in Galle man’s leg and hand was cut off and he was stabbed and left in the road struggle and die. A video footage about this incident was a circulated in the internet. It was a gruesome sight of extreme barbarism. The act of impeaching of judge is symbolically more or less a similar kind of act of might in Sri Lanka. The knife with which the judge will be stabbed is the two thirds majority that the ruling party has in the parliament.
Thus, looking into the impeachment process with the idea of finding some kind of rationality is falling for a basic fallacy. Under the conditions in Sri Lanka and under the 1978 constitution it is just public stabbing and nothing more.
J R Jayawardana’s mean scheme
No one as mean as J R Jayawardana has held the position of the head of the state in Sri Lanka since the time of his self-appointment as the president of Sri Lanka. Having obtained a four fifths majority in parliament due to exigencies of the time and clever campaign by his deputy R Premadasa, and not due to J R Jayawardana’s popularity, he was able to obtain this four fifths majority. Realizing how fast things change in Sri Lanka, J R Jayawardana quickly created a constitution just to suit himself and to enjoyed absolute power. In the constitution he created provisions that made it next to impossible to remove a president by way of an impeachment. On the other hand, he made provisions to make it quite easy to remove a superior court judge, including the Chief Justice.
Once the impeachment decision is taking by the president, there is no room at all to ensure any kind of justice. Thus a superior court judge, whose task it is to ensure justice for everyone, is himself or herself without any possibility of justice, as has been pointed out by a former Chief Justice.
It is difficult to understand why the judgers of Sri Lanka, the lawyers and also the intellectual community, cowed down to the 1978 constitution, which declared the president to be outside the jurisdiction of the court for any matter whatsoever. The head of the executive place himself above the law. Once this was done, there was hardly any possibility of preventing the entire scheme of the rule of law breaking down, and this also turned constitutionalism upside down. However, there was hardly any resistance by the judiciary or by the legal profession. Perhaps they were all mesmerized by the four fifths majority the government had in parliament. Even the otherwise honorable Neville Samarakoon QC accepted this constitution and agreed to be Chief Justice of Sri Lanka, over the heads of the other judges of the Supreme Court. At this point in time, the legal intellect of Sri Lanka froze or got paralyzed. The consequences that came, about which there are a lot of lamentations now, are a direct result of the failure to resist the imposition of this constitution.
There are many lamentations and one is a book publish by S L Gunasekara, a senior lawyer, entitled Lore of the Law and other Memories, the latter part of which is worth reading to get some idea of what has happened to the judiciary and the legal profession in Sri Lanka. There he quotes D.S. Wijesinghe, President’s Council, who said,“We now have a new Parliament and with it democracy vanished. We are now about to get a new Superior Courts Complex and with that justice will vanish”.
Making the judiciary a branch of the Executive
The separation of powers is basic to democracy. The legislature, executive and judiciary are the three separate branches. While they complement each other as three branches of the system of governance, one cannot be a branch of the other. Their independence is at the essence of the judiciary. This independence is inherent into the task of defending the law and protecting the dignity and the freedom of the individual.
In the scheme of 1978, the whole structure was rebuilt in a way to have only one unit and that is by putting the judiciary and the legislature all as branches of the executive, while the jargon of separation of powers was kept.
It was easy to make the legislature into merely a branch of the executive, and the symbolic gesture by which this was done was by demanding letters of resignation from all the members of the ruling party, which had to be handed over to the Executive President. This was held as a threat over them. The task for the legislature was (and is) clearly to vote for whatever that the executive dictated them to.
However, with the judiciary, it was a more complex affair. That was why a conflict soon developed between the Executive President and Chief Justice Neville Samarakoon. That conflict was manifest at the very inspection of the 1978 constitution and it took a long time for executive to maneuver its way to suppress the judiciary into a position that it would accept being a branch of the executive.
The present impeachment is perhaps the final stage of settling this and making sure that the judiciary of Sri Lanka is nothing more than a branch of the executive.
The massage that this impeachment is giving to the next Chief Justice and the other superior court judges by the Executive President is to be his stooges or the stick of impeachment will be on you.
The place of lawyers under this scheme
When the judiciary is a branch of the executive, the idea of the independent legal profession also goes under with that. The role left for lawyers is also to be stooges to the executive and to go behind this or that person to get favours from them on behalf of their clients. In fact, that has already happened to a great degree; there are some who have learned to make a fortune by playing that role, but, for those who wish to pursue law, there is already no room.
Under such circumstances, what happens is that the courts become something like a marketplace. Litigating there is to use various forms of bargaining. There, again, there are those who have their way with the executive, and they can even get out of committing bloody murder, as has already happened on several occasions in broad daylight.
The implication of all this is that there is no big drama or a struggle between forces that will manifest itself in the days to come over the impeachment proceedings. It is a pre-arranged drama, where political cruelty and mean cunningness will demonstrate how it has destroyed all the possibilities of justice in Sri Lanka.