By Rajan Philips –

Rajan Philips

The Supreme Court and the Court of Appeal could not have timed it better.  The former delivered its judgement on New Year’s Day and the latter made it public the following day.   Following a laudable work ethic and a working calendar, rather than the customary astrological considerations, the two superior courts have ushered 2013 as the Year of Judgement for Sri Lankan politics.  It is now for the Executive and the Legislature to either fall in line with the courts, as they must, or consult astrologers and constitutional devil’s advocates and cut their noses to spite the courts, as they might.

No matter how it ends, the political and constitutional unfolding through the rest of the year will be influenced by the New Year’s Day ruling.  Regardless of what course politics will take, the six superior court judges have quite unassumingly and unflappably written themselves into Sri Lanka’s constitutional history.  It is in the shadow of their ruling that Mahinda Rajapaksa, Ranil Wickremasinghe and even Shirani Bandaranayake are now left to play out what remains of their roles in public life.

A comprehensive ruling

The court ruling has identified, anticipated and addressed every political and constitutional question that could be raised in regard to the court’s jurisdiction and determination on the impeachment question.  Even though the government parliamentarians chose to ignore the Court’s ‘invitation’, and this was an entirely serious, sincere, and proper judicial invitation unlike the executive invitation extended to the Chief Justice to visit Temple Trees, the court had the benefit of hearing the Attorney General as well as counsels for intervener petitioners who were objecting to the Court exercising jurisdiction on the impeachment matter.  As a result the Court heard as broad a cross-section of submissions as possible and went through the time tested process of argument, deliberation and determination.  Quite different, you will notice, from the way the Parliamentary Select Committee on impeachment, claiming constitutional authority, conducted itself in arriving at its determination against the Chief Justice.

The ruling first outlines how the Court established at the very outset that there was no one among the parties including the Attorney General and intervener petitioners, who objected to the particular Bench of judges hearing the constitutional case.  Everyone was asked and everyone was happy with the Bench hearing them even though there was, as the ruling indicated, averment to the contrary in the intervener petitions.  This should silence the government voices, in parliament and elsewhere, which have been comically and ignorantly harping about a conflict of interest in the Chief Justice selecting judges for hearing the constitutional reference on impeachment.  Regardless of the procedures for assigning cases, the allusion of conflict of interest is really an affront to the individual judges assigned to the bench.  It may be that government parliamentarians having become presidential puppets have forgotten that there are still judges and other professionals in Sri Lanka who carry out their duties honestly, intelligently, independently, professionally and fearlessly.   Without them Sri Lanka would have lost even the little hope in hell that is still out there for preserving even a semblance of constitutional governance.

Second, the ruling establishes that there was a proper referral to the apex Court to determine the question of the constitutionality of the impeachment process created under a Parliamentary Standing Order.  The ruling deals extensively with the arguments over the validity of the referral including previous Supreme Court rulings in coming to the proper conclusion that the Court had before it a valid referral for determination.  Anything else would have defied common sense.  While it is not a legal issue, it is a failure of politics that until the current challenges made their way to the Supreme Court via the Court of Appeal, the apex court has had no occasion to determine the constitutional question pertaining to the impeachment of judges.

The question of constitutionality was first raised by the late Mr. S. Nadesan, QC during the impeachment of Chief Justice Neville Samarakoon.  The UNP government at the time did not refer the matter to the Supreme Court despite the request by Sarath Mutwettugama, Anura Bandaranaike and Dinesh Gunawrdena who were the Opposition Members in the PSC on impeachment of the then Chief Justice. Of the three, two are dead and third member, Dinesh Gunawardena is a cabinet minister in the present government.  It would be interesting to see which way he will vote if the government proceeds with the address in parliament for removing the Chief Justice notwithstanding the Court ruling.

Be that as it may, the present SLFP-led government under a different leadership tried to change the impeachment process as part of a constitutional change in 2000.   And the Supreme Court has now drawn attention to the fact that Anura Bandaranaike in his 2001 ruling as the then Speaker of Parliament invited parliamentarians to consider the need to “introduce fresh legislation to amend the existing Standing Orders regarding motions of impeachment against Judges of the superior courts” in line with the provision “already included in the draft Constitution tabled in House in August 2000.”  The Court noted that the “2000 draft Constitution did not see light of day as a new Constitution.

The people know that it was the UNP that torpedoed the draft Constitution of the year 2000.  However, in 2002, a UNP-led government gave an undertaking to UNHRC that the decisions of a Parliamentary Select Committee on the impeachment of judges would be subject to judicial review if such a committee “were to misdirect itself in law or breaches the rules of natural justice.” The UNP government report to the UNHRC went on to assert that there was no intention “either in the relevant constitutional provisions or the standing orders … to exclude judicial decisions of the inquiring committee.”

Notwithstanding this assertion, during the current impeachment saga, Mr. Ranil Wickremasinghe rose on his hind legs more than once in parliament to lead the chorus on parliamentary supremacy to the distinct delight of Speaker Rajapaksa.  On the other hand, the government MPs led by the President not only went back on their constitutional commitments in 2000 but also cited the impeachment of Chief Justice Neville Samarakoon as ‘precedent’ even though they were dead against that impeachment process in 1984.  Mr. Dinesh Gunawardena is a silent accomplice in this political reversal.  Worse, the President and his MPs admitted that the process for impeaching judges should be changed but only after impeaching the present Chief Justice.  In other words, both the UPFA government and the UNP opposition have jointly and incompetently made such a mess of the impeachment process that the superior court judges have had to step in to show the way to clean up the mess.

The Supreme Court’s ruling also points out the difference between the Soulbury Constitution and the 1972 Constitution, on the one hand, and the 1978 Constitution, on the other, in regard to their respective provisions for the removal of superior court judges.  The two former constitutions identically provided for judges to continue in office during good behavior and for removal for misbehavior or incapacity upon an address by parliament and an order by the Head of State. The 1978 Constitution, on the other hand, provided for an ill-defined process of investigation to precede an address by parliament.  The reason for the difference, in my view, is that the two former constitutions were based on parliament and the Head of State acting sensibly, responsibly and in good faith in regard to the removal of a judge based on conspicuous and incontrovertible evidence of misbehavior or incapacity.

President Jayewardene may have wanted to provide for a specific process of investigation with the good intention of preventing parliament from acting arbitrarily and in bad faith to remove a judge.  Ironically, JRJ himself created a flawed process by acting in bad faith against his own appointments.  The Rajapakse government went further and has turned the impeachment process into a political witch hunt and asserting it as a constitutional right and parliamentary privilege.  The Supreme Court has now ruled conclusively and in no uncertain terms that:

“In a State ruled by a Constitution based on the rule of law, no court, tribunal or other body (by whatever name it is called) has authority to make a finding or a decision affecting the rights of a person unless such Court, tribunal or body has the power conferred on it  by law to make such finding or decision. Such legal power can be conferred on such court, tribunal or body only by an Act of  Parliament which is ‘law’ and not by Standing Orders which are not law but are rules made for the regulation of the orderly conduct and affairs of the Parliament. The Standing Orders are not law within the meaning of Article 170 of the Constitution which defines what is meant by ‘law’. The power to make a valid finding, after the investigation contemplated in Article 107 (3), can be conferred on a court, tribunal or body or only by law and by law alone.”

In passing, the Court also disagreed with the submission of the Attorney General and Counsel for the intervener petitioners that the “power of removal of the judges of the Supreme Court and the Court of Appeal is a power of parliament. “  Parliament can only move a resolution for impeachment and make “an address of Parliament to be presented to the President for the removal of such judge for proved misbehavior or incapacity.”  The Court ruled that “The power of removal of such judge is the power of the President.”  Interestingly, the ruling stops short of saying whether the President has the discretion of not removing a judge after receiving an address by parliament for the removal of that judge.

Considering the fact that they were dealing with a matter that affected the superior court judges, the three judges in their ruling reiterated the “spirit of detached objective inquiry” in which they “attempted to find an answer to the question” referred to them, and that they have performed their duty faithfully bearing in mind the oath of office taken by them when they assumed judicial office.

Political implications

The Supreme Court ruling has posed an insurmountable hurdle of constitutional credibility to the government’s plan to move ahead with the removal of the Chief Justice.  The bottom line in constitutional governance is that a government must accept the constitutional determination of the Supreme Court even if it does not agree with the Court’s ruling.  In this instance, the Supreme Court has given a ruling that hardly anyone can seriously argue against.  And the government knows that it cannot credibly argue its way out through another Speaker’s ruling, not that previous rulings passed serious muster.  The easier and the only honest option for the government would be to fall in line with the Court’s ruling as I indicated at the outset, and stop the current impeachment process.  The more difficult and utterly dishonest and irresponsible option would be to defy the court ruling and plunge the country into constitutional and political chaos.

It is time that those, who are friends of both the President and the Chief Justice and who keep calling upon the Chief Justice to step down for the sake of national interest, turned their appeals for once to the President.  Why is it that they do not ask the President even once, not to step down, but to halt the impeachment process?  It is not the Chief Justice who is sullying the country’s name abroad but the government’s threat to remove her from office.  If the government abides by the Supreme Court’s ruling it would restore some normalcy at home and somewhat compensate for its battered credibility abroad.

It should now be clear to the government that the impeachment process was ill advised from the beginning and that it has bitten a lot more than it could chew.  Equally, the UNP Opposition has boxed itself into ineffectuality by being dishonestly evasive in regard to the impeachment process.  With Machiavellian intent, the UNP leader wanted the Chief Justice removed and the government fatally discredited.  It has backfired on the UNP because it has lost its identity in the whole impeachment debate.  It has talked from both sides of its mouth – asserting parliamentary supremacy and railing against the PSC process, and has lost its own credibility as an alternative to the government.

Unlike at the time of the passage of the 18^th Amendment, proceeding with the impeachment in defiance of the Court ruling will have immediate repercussions.  Disregarding the Supreme Court’s ruling will nullify the superior courts and destabilize the entire judiciary.  The government is in no position to do what JRJ did in the 1980s and get away with it, namely, to send home all the superior court judges and repack the courts with new judges. There will be a revolt, and rightly so.

Also, if the government has learnt anything from the appointment of judges after 1977, it must know that even handpicked judges cannot be relied upon to deliver favourable judgments at all times.  In fact they become independent in their own way while in office.  Of the more recent controversial appointees, it could be said that Neville Samarakoon demonstrated independence consistently, Sarath Silva has done it perversely, and Shirani Bandaranayake has been showing independence belatedly.

Before 1977, the parliamentary system served the country well in avoiding such aberrations as we are experiencing now.  The impeachment of judges was unheard of as the ethos of cricket was observed in politics in accepting even unfavourable judicial decisions.  More importantly, the governments were also held in constant check by a strong, vigorous and well informed opposition led by the Left.  Apart from their extraordinary parliamentary abilities, the Left leaders derived much of their political clout from the working class mass movement outside parliament.  The trade unions were the main ‘bulwark of democracy’ in Sri Lanka, as AJ Wilson used to say.  Now there is neither a strong leadership in parliament nor a bulwark of democracy outside parliament.

The courts can only partially fill this void. Without the sword and the gun, as Alexander Hamilton has said, there is very little that the judiciary can do except delivering good judgements.  The Supreme Court has delivered a good judgement that would be the touchstone for Sri Lankan politics for the rest of this year, if not longer. The government could persuade itself to abide by the ruling and stop the current impeachment process or, it could choose to defy the ruling at its own peril.  To the country at large, the ruling provides a rallying point from which the people will hold the government’s feet to the constitutional fire.

*rajanphilips@rogers.com