By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

Is the Constitution or the President’s conscience paramount in deciding the notion of legality in Sri Lanka?

Abandoning the courts and the law books

A person’s conscience is of course, variable. A Presidential conscience cannot certainly be any different. In contrast, the very core of the concept known as the Rule of Law is its fixed application to all, the powerful and the powerless, a Chief Justice and a common criminal. If we are to be a country governed by the conscience of whichever Head of State who is in office at a particular time, then we may as well abandon our courts, our law books and our self respect as a people bound by the law.

These matters spring immediately to mind in the wake of President Mahinda Rajapaksa exerting his considerable thespian talents this week to claim that, despite the government driven impeachment process finding Sri Lanka’s Chief Justice culpable on certain charges, he would act ‘according to his conscience’ and appoint an ‘independent committee’ to further inquire into the findings handed down by a majority of the Parliamentary Select Committee (PSC).

Undeterred and unsurprisingly, his detractors promptly argued that this signified a Presidential double-take and an admission that the PSC process, driven by his own government, was flawed. These gleeful reactions then led to the sorry sight of the President tying himself up in proverbial knots in trying to explain in one breath that he had all confidence in his Select Committee members whilst saying that the proposal of a further inquiry was mere ‘procedure’, whatever that meant.

Legal justice required and not executive mercy

But before we venture to address this rider regarding an ‘independent committee’, certain important questions need to be examined. And we return to our original question as to what is paramount, the Constitution or the President’s conscience? As a wag shouted with pertinent purpose during the 2nd Special General Meeting of the membership of the Bar Association of Sri Lanka convened on Saturday December 15th unprecedentedly within two weeks of the last such Meeting, what needs to be shown is legal justice for the Chief Justice and not mercy from the executive. This is a crucial distinction that needs to be maintained at all costs

First and foremost, has the Chief Justice has been impeached in a manner that is constitutionally proper? To be clear, we are not talking here of the constitutional propriety of Members of Parliament inquiring into the misbehavior or incapacity of a superior court judge over which much hot air has been wasted since the beginning of this fracas. The issue is more basic and far simpler. It goes to the roots of a fair inquiry which underwrites all the rights that the Constitution guarantees us. A person is therefore innocent until proven guilty by an impartial inquiry before a competent body. These are fair trial and natural justice rights which in the context of the Sri Lankan law, have been expanded to span the entire breadth of the criminal, constitutional and administrative law spheres. For decades, the courts have themselves been applying these rights to all categories of persons, even common criminals. In particular, appointments to, and removal from public offices must be open, fair and accountable. As much as public officers can claim these rights, surely judicial officers of the superior courts are similarly entitled when impeachment motions are lodged against them? To argue to the contrary would be an absurdity.

Violation of all rights of due process

So let us examine as to whether the PSC process which found Sri Lanka’s Chief Justice culpable, satisfied these basic requirements. The PSC operated sans due and proper procedure, the majority of its members denied her the right to cross examine adverse witnesses and claimed that oral testimony would not be called, only to promptly go back on their word once the Chief Justice and her lawyers withdrew from the proceedings after being repeatedly insulted. They refused to allow her more time to answer allegations contained in a humongous bundle of documents handed over to her to which she was peremptorily ordered to respond within the next day.

This is quite apart from the vulgar abuse leveled against her by some government members of the PSC as detailed in a letter issued by the Chief Justice through her lawyers, copies of which were passed around at the BASL meeting this Saturday. Unconvincing denials by the Chairman of the PSC in that regard carry no credence. Even with the Chief Justice requesting that the hearings be held in public, this was not allowed. Up to now, the purported findings of the majority members of the PSC have not been furnished either to her or to the opposition minority members of the PSC who also walked out in protest.

Notwithstanding this excruciatingly painful spectacle which is undoubtedly without parallel in the Commonwealth, we had the Deputy Speaker of Parliament protesting that the Chief Justice had been afforded all facilities and had been even offered lunch at the House. To what depths of profound farce have we descended to? Are we expected to weigh the offer of a lunch as against the basic requirements of natural justice in the scales of equity?

Predictably the Chief Justice had no recourse but to issue letters through her lawyers to the general public, describing the humiliation that she had undergone and the indignities that she had been subjected to. It is unfortunate that President Mahinda Rajapaksa, in this week’s meeting with national editors, chose to rebuke the Chief Justice for making public statements under the quite mistaken impression that ‘she is a public servant’ (Daily Mirror, December 14th 2012). Yet the President, being a lawyer himself, should be quite aware that judicial officers are assuredly not public officers. In any event, his lawyers, assuming that they possess the necessary competence which is by no means a given, should surely advise him to that effect.

An unholy mess of the government’s doing

If the Government thought that they could wrap up the inquiry against the Chief Justice clothed in a garb of secrecy, frighten off independent commentary and generally enter into adverse findings without critique, it was sadly mistaken. Indeed, these clumsy attempts have led to far more opposition than it ever bargained for, ranging from the Congress of Religions to the heads of religious bodies and judicial bodies both here and in the Commonwealth.

Moreover, the activism displayed by Sri Lanka’s Provincial Bar Associations has been astounding. The President of the Bar demonstrated deft and highly commendable handling of the record numbers that turned up this Saturday, culminating in the passing of three resolutions including an unequivocal assertion that the Bar would not welcome a new Chief Justice if this unjust impeachment is proceeded with. Anti-impeachment contenders dominated the meeting to the extent that an opposition parliamentarian and signatory to the impeachment motion who tried to parrot the government line, found himself unable to proceed and was forced to retreat in vastly amusing disorder.

This shameful impeachment cannot be reversed through a supposed ‘independent committee’ appointed by the President. Indeed, given the circumstances, it is hard to believe that any person of erudition or integrity will agree to serve on it. The issue can only be resolved through strict adherence to a new inquiry process adhering to constitutional guarantees of fairness that the Chief Justice is entitled to, through amendment of the relevant Standing Orders if needs be.

It is this minimum that should prevail and not reliance on the President’s conscience, an uncertain force as this must undeniably be. Let us acknowledge this essential truth, even at this late juncture.