By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

Last week’s judgment by a Divisional Bench of Sri Lanka’s Supreme Court affirming that parliamentary processes relating to the impeachment of superior court judges cannot be judicially reviewed has, quite tellingly, occasioned scarcely a ripple of surprise in public opinion.

An unquestionable departure from the past

But putting inevitable cynicism aside, this should not be treated as just another phase in the historic tussle between branches of government. Since independence, crude political attempts by the executive/legislature to ‘tame’ the judicial branch had been met by judicial resistance, albeit weakly at certain times. What we see now however is a sharp end to that tug and pull of opposing forces. The fount of power is now unquestionably in a ‘monarchical’ Presidency to whose tune, a supine legislature dances at will. From henceforth, the Chief Justice of Sri Lanka is liable to be treated by parliamentarians in a manner worse than how a common criminal is dealt with by the lowest court in the land.

The Divisional Bench of the Supreme Court ruled that the Court of Appeal (CA) had erred in issuing writ of certiorari on 7th January 2013 quashing the report of the Parliamentary Select Committee impeaching the 43rd Chief Justice. At that time, the Supreme Court itself, upon being requested by the CA to respond on a matter of constitutional interpretation, had determined that the removal of a judge of the superior court under Article 107 should be provided for by law and not by Standing Order. As the Court explained, there is propensity for injustice when the matter is left solely to the discretion of parliamentarians.

In firmly departing from this thinking, Saleem Marsoof J, (writing for the Divisional Bench comprising also Chandra Ekanayake J, Sathya Hettige J, Eva Wanasundera J and Rohini Marasinghe J), characterized that earlier order as a ‘distortion of the law’ and ‘altogether erroneous’.

No power to judicially intervene

Some aspects of this February 21st Divisional Bench decision warrant scrutiny. The initial application before the CA by the 43rd Chief Justice had cited numerous procedural irregularities. The core issue therefore was about due process, both before the CA and the earlier bench of the Supreme Court. Interestingly however, in departing from these 2013 decisions, the Divisional Bench took considerable effort to emphasize that the Court of Appeal order was a response not to ‘what transpired before the committee’ but to the action of the Speaker in ‘constituting the committee.’

What is primarily important for the limited purposes of this column however is the Divisional Bench’s express affirmation that the Court has no power to examine the actions of a select committee when impeaching judges. The CA had earlier stated that Article 107 of the Constitution did not expressly shut out judicial review as compared to other constitutional provisions. With the dismissal of this judicial view, what we are left with is ouster of judicial review by implication. This is an interpretation that is particularly grave when a judge, let alone a Chief Justice, is arbitrarily thrown out of office.

Dangers of relying on the ‘good sense’ of parliamentarians

The Divisional Bench thought it fit moreover to stress that checks and balances must be necessary and that judges should not play any role in the impeachment process as this would violate the basic principle that a person must not be a judge in his or her own cause. Yet it may reasonably be pointed out that the 2013 order of the Supreme Court, which the CA rightly considered itself bound by, was not to enable judicial interventions per se.

Rather, given the possibility of injustice being meted out by politically biased parliamentarians, (as factually seen by the abuse that Dr Shirani Bandaranayake was subjected to), the Supreme Court had stated that such matters as to proof, the forum and due process safeguards thereto must be provided for by law so that there is certainty and objectivity. The Divisional Bench however confined itself to the plain words of Article 107 as conferring full discretion thereto on Parliament.

In practical terms however, one may well ask as to henceforth, what exactly will be these ‘checks and balances’, (which the Divisional Bench appeared to be so fond of reiterating), that will come into play when a Chief Justice of Sri Lanka is impeached? Are we to rely on the ‘good sense’ of the Sri Lankan Parliament in that regard? The answers to these questions are unfortunately self evident.

Sri Lanka left vulnerable to the world

In a wider sense, the ‘legality’ of a particular matter has become merely incidental in public debates on state accountability, both domestic and international. The integrity of Sri Lanka’s judiciary is no longer a purely domestic issue. A further resolution against Sri Lanka is due to be deliberated at the upcoming sessions of the United Nations Human Rights Council. The United Nations High Commissioner has called for an international inquiry mechanism to ‘…to monitor any domestic accountability process’ (A/HRC/25/23, at page 18). Unsurprisingly, this call is prefaced by a categorical assertion that ‘national mechanisms have consistently failed to establish truth and achieve justice.’

The Government’s response (A/HRC/25/G/9) is to repeat that the Constitution has been followed to the letter. Yet this is not a claim that is likely to be believed. Neither should the delusion prevail that the February 21st Divisional Bench decision could be produced before the world to justify (retrospectively) the ‘legality’ of that 2013 impeachment. Very early on, Sri Lanka had repeatedly protested on record before the United Nations that findings by a select committee could be judicially reviewed. This is now categorically not the case. The Government has also refused to enact a law prescribing fair procedures in impeachment processes.

In sum, Sri Lanka has virtually no credible defence to put forward when accused of compromised domestic processes of justice. Indulging in fiery nationalistic rhetoric and accusations of doublespeak by the international community is limited in value. By engaging in cheap theatrics in an unquenchable thirst for political domination, this administration has only put the entire country in jeopardy, quite unnecessarily. Sadly, this is the ultimate result that we are left with.