{"id":68212,"date":"2013-01-07T22:26:00","date_gmt":"2013-01-07T22:26:00","guid":{"rendered":"http:\/\/www.colombotelegraph.com\/?p=68212"},"modified":"2013-01-09T19:12:30","modified_gmt":"2013-01-09T19:12:30","slug":"impeachment-of-the-first-woman-cj-and-beginning-of-the-spring-in-sri-lanka","status":"publish","type":"post","link":"https:\/\/www.colombotelegraph.com\/index.php\/impeachment-of-the-first-woman-cj-and-beginning-of-the-spring-in-sri-lanka\/","title":{"rendered":"Impeachment Of The First Woman CJ And Beginning Of The Spring In Sri Lanka?"},"content":{"rendered":"

By Jude Fernando<\/a><\/span> –<\/strong><\/p>\n

\u201cNatural justice is a pledge of reciprocal benefit, to prevent one man from harming or being harmed by another.\u201d<\/em> Epicurus<\/p>\n

The iniquitous ex parte guilty verdict of Sri Lanka\u2019s first female chief justice\u2014which according to the Parliamentarian Vijitha Herath<\/a><\/span> is an order from above\u2014is not primarily about her alleged misconduct.\u00a0 Rather, it is about the Sri Lankan justice system\u2019s struggle to maintain its ability to deliver natural justice independently and against the constraints of country\u2019s Constitution, which has been evolving since British Colonial period, and also against the legislature which uses any means necessary to subordinate the Judiciary to its own particular interests, thereby denying the scope within which the Judiciary can deliver natural justice.<\/p>\n

\"\"<\/a><\/p>\n

Impeachment is not a random blunder, but a survival strategy (a structural necessity) of a regime that derives its legitimacy and security from the forces of capitalism, ethno nationalism, executive presidency, militarism and nepotism, all of which are interconnected and some of which derive their legitimacy from (or unintended offsprings of) the Constitution.\u00a0\u00a0Relaxing any of these, forces, means collapse of the others and begs significant constitutional changes.\u00a0\u00a0To maintain the status quo, the State has effectively asserted itself as the interpreter of the Constitution.\u00a0\u00a0It has appropriated the functions of the judiciary, and consequently, it has done away with one of the few remaining institutions that safeguards the country\u2019s democracy and prevents a slide into despotism and lawlessness.<\/p>\n

The protests against the impeachment are evidence that concerned people around the country, including some intellectuals who are ardent supporters of the state, are overcoming the \u2018culture of fear\u2019 and demanding that natural justice be upheld. \u00a0Perhaps, we are witnessing the end of the long winter of discontent and a beginning of spring in Sri Lanka.\u00a0 Any compromise with the government \u2014 other than annulling the Parliamentary Select Committee report, holding the State accountable for its misconduct and allowing the courts to determine the best course of actions for the allegations against the CJ<\/a><\/span> \u2014 \u00a0would miss this historical opportunity to restore democracy and would provide further legitimacy to the very forces that brought the crisis.<\/p>\n

This three-part series takes a broad look at the tensions between the judiciary and the legislature to make the argument that at this moment in Sri Lanka, protecting the independence of the judiciary is of utmost importance because the tyranny of the legislature is a greater obstacle to\u00a0 natural justice than the alleged misconduct of the CJ.\u00a0 Part I will draw on the findings of numerous legal scholars to outline typical methods used to interpret the Constitution while defending the argument that judges are better suited than elected officials for this task. Part II will be an account of how the Constitution and its reforms since the British colonial period limits the ability of the judiciary to deliver natural justice, particularly because of the Constitution\u2019s affinity with capitalism, ethnoreligous nationalism, executive presidency, and national security.\u00a0 Part III will outline a more concrete account of why the government lacks the legal and moral authority to impeach and that, therefore, the Parliamentary Select Committee Report must be declared a mistrial and those responsible for it must be held accountable.<\/p>\n

Part I: Judges, not the politicians, should interpret the constitution<\/strong><\/p>\n

“[E]very act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”<\/em> \u2014 Alexander Hamilton<\/p>\n

Interpretation Constitution is the sole responsibility of the Judiciary, which means that the Constitutional authority of the legislature to impeach a judge must originate with the Judiciary: Thus, this responsibility of interpreting the law must not be removed from the Judiciary under any circumstances, and it absolutely should not be placed in the hands of elected officials.<\/p>\n

Interpreting the Constitution is a delicate exercise, because according to legal scholars, in all constitutions there exist \u201ccore uncertainties\u201d and \u201cpenumbra of doubts,\u201d also known as the \u201cfringes of vagueness\u201d and \u201careas of open texture.\u00a0 The rationale, logic and structure behind all<\/em> laws are determined by the widely-held values and power structures within a society.\u00a0 Laws are not value-free; laws are political and are a collection of beliefs and prejudices that legitimize the injustices of society.\u00a0 Perhaps the best way to understand this delicate is to explore the limitations of three interpretive frames that we find in legal literature: doctrinal, historical and responsive.<\/p>\n

According to Robert C. Post of Yale Law School:<\/p>\n

If doctrinal interpretation rests on the equation of constitutional authority with law, actual text of the Constitution is remitted to one end of a growing line of precedents. What I shall call \u2018historical interpretation\u2019 rests instead on the equation of constitutional authority with consent.\u00a0 If Doctrinal interpretation portrays courts as merely the instruments of the law, if historical interpretation portrays courts as merely the instruments of an original democratic will, responsive interpretation portrays courts instead as arbiters of the fundamental character and objectives of the nation. In responsive interpretation, judges determine the meaning of the Constitution in reference to the society\u2019s current ethos<\/em>, or morality, from the perspective of natural justice.<\/p><\/blockquote>\n

If the courts use a purely doctrinal approach, courts may become merely the instruments of the law and subject to the values of the law, which may not be universally shared and which will not adapt to the times. If the Constitution is the law, the courts are constrained by the values of the law, which makes it impossible to reconcile the values and intentions of the authors of those laws with those of the present. \u00a0Robert Post argues that the doctrinal interpretation rests on an unacceptable notion of the Constitution that applies not the words of the document, but legal rules that judges have subsequently created.\u00a0 The underlying assumption is that \u201crules elucidate the<\/em> meaning of the text.\u201d\u00a0 Yet the outcomes of doctrinal interpretation are shaped by the values underlying the hermeneutics of the interpreters.<\/p>\n

Treating the Constitution as an objective document dissociates an issue\u2014and its subsequent legislation\u2014 from its own historical context and intent.\u00a0 When doctrinal interpretation upholds the sanctity of private property and generalized market exchange in a capitalist society, it is safeguarding the very institutions that are responsible for existing economic and social inequalities.\u00a0 Political dissent against inequality is then treated as a \u201claw and order problem\u201d. Thus, a doctrinal interpretation legitimizes the State\u2019s suppression of dissent and criminalizes any force used by the dissenters. \u00a0Despite this reality, one cannot discount the potential for natural justice by doctrinal interpretation by an independent judiciary.<\/p>\n

A constitution is a historical document and it can neither be abandoned nor can it morph \u2018instantly\u2019 to satisfy society\u2019s needs of the present and future.\u00a0 At the same time, the past is not the present; the past cannot be allowed to maintain an unthinking tyranny over how natural justice is served in the present.<\/p>\n

A constitution is a political compromise among the elites and it tends to be drafted without the participation of the public. This makes it difficult to discern the individual and collective intentions of these elites.\u00a0 Even the United States Constitution was drafted in closed sessions where its authors swore a lifelong oath of secrecy. George Washington famously disposed of any evidence of the Founding Fathers\u2019 deliberations.\u00a0 James Madison\u2019s notes revealed that the U.S. Constitution was a compromise between merchants, ship owners, planters, and slave owners.\u00a0 These compromises define the limits of the Constitution to deliver natural justice, particularly in situations where the social forces they unleashed are responsible for ensuing injustices.\u00a0 A constitution evolves over time and undergoes changes as a result of the tension between compromise and natural justice.<\/span><\/p>\n

The historical approach runs the risk of making courts merely the instruments of those who drafted the laws, thereby rendering these laws irrelevant. \u00a0Attempting to discern the original intent of the Constitution is problematic because it presupposes that the interpreters, as Kenneth Thomas notes, \u201cwould be comfortable utilizing historical documents contemporaneous with the drafting and ratification of the Constitution to help inform Constitution doctrine.\u201d One would expect such informed interpretation of the Constitution in countries where there is research-oriented legal scholarship and where historical influences are subject to legal scrutiny, particularly when a country\u2019s history itself is at the root of the issues in question. \u00a0Even if one is aware of the historical context of a legal document, he or she may not know whether the authors intended a fixed meaning over time.\u00a0 Hence, the passage of time could make any interpretation vulnerable to the \u201cpreexisting rules of controlling precedents.\u201d<\/p>\n

The historical approach also rests on the assumption that current national ethos identifies with the drafters and ratifiers of the Constitution.\u00a0 But in situations where the Constitution is a product of \u201conly discrete individual preferences,\u201d and where the nation does not have any national ethos, the consent of those long dead should not hold any particular authority for the present generation, notes Robert Post.<\/p>\n

The historical approach legitimizes the Constitution\u2019s responsibility to protect a country\u2019s sovereignty.\u00a0 When the sovereignty is contested by groups within the country who feels that it denied them of equal rights and privileges, then the sovereignty becomes a source of denial of natural justice.\u00a0 In such situations, demand for nationhood based on natural justice automatically becomes a violation of the Constitution.<\/p>\n

Elected officials\u2019 claim that they are protecting the sovereignty of the nation based on historical interpretations of the Constitution may be superficial and misleading when they use such claims to concentrates power in the hands of a few which result in undermine economic and political sovereignty. Historical interpretations provide less room for judges to maneuver interpretations if they are bound by the intentions of its original framers.\u00a0 This becomes an issue they such intentions in the past are used as a way of legitimizing the inequalities in the present. \u00a0The framers and ratifiers of Constitutions may not fore see the destructiveness of the social forces that Constitutions could generate.<\/p>\n

Over time, the society may recognize that the original intentions and interpretive frameworks have caused an injustice upon which political power rests. \u00a0In such circumstances, historical interpretations that attempt to remain truthful to the original intentions of the Constitution may obstruct natural justice and appropriate constitutional changes to address injustices.\u00a0\u00a0 This is an issue in constitutions that are racially, religiously, and ethnically exclusive, when exclusivity is a violation of natural justice. \u00a0Those oblivious to this history simply subscribe to the myth that the Constitution was crafted through divine intervention in the same way that God wrote the Ten Commandments on the tablets.<\/p>\n

The framers of the Constitution are seen as having risen above partisan interests to safeguard national interests, and are elevated to the status of patriots and founding fathers of the nation.\u00a0 \u00a0As time passes, though, differences and conflict among the framers could easily \u2018disappear\u2019 or become \u2018marginalized\u2019 in the interpretation.\u00a0 The Constitution increasingly gets treated as an objective document in which justice is not what is equal and fair but what is legal. This tends to become the \u201ctechnical wrangling of lawyers and Judges,\u201d argues Bertell Ollman. \u00a0Yet in this wrangling, the discovery of the meaning of the objective intent continues to be a matter of subjective interpretation.\u00a0 The power that wins given interpretation in a court of law does not necessarily reside within the technicalities or competence of the lawyers and judges, but in the larger political economy and popular culture.<\/p>\n

Yet historical interpretation should be dismissed.\u00a0 Rather, constitutional interpretation requires an attempt to discover its original meaning and the principles that underlie the text, but how they should be applied cannot be expected to be obvious in the original meaning.\u00a0 The text of a constitution does not necessary change with an amendment, but its interpretation and application change when people become aware of the injustices that stem from or are encouraged by its original meaning.<\/p>\n

In responsive interpretation, judges become arbiters of the fundamental character and objectives of the nation. As Philippe None and Philip Selznick put it, law submits to \u201cthe sovereignty of purpose\u201d by functioning \u201cas a facilitator of response to social needs and aspirations.\u201d As United States Justice Oliver Wendell Holmes notes, the Constitution is far from being a single coherent document that suggests the consent of all. Instead, \u201cit continues to inhere in the national being that the Constitution has called into life.\u201d The guidelines and authority for interpretation need to be \u201cderived from neither rules laid down in judicial precedents or the original intention of the framers. \u00a0Rules and authority for interpretation flow from the whole experience of nationhood.\u201d \u00a0In situations where the evolution of nationhood is responsible for inequalities and injustices, the judicial system becomes the interpreter of nationhood.<\/p>\n

The goal of responsive interpretation, according to Robert Post, is to uncover present values, where the \u201cConstitution is understood as having \u2018called into life a being\u2019 that, like any \u2018organism,\u2019 must grow and develop on the basis of its \u2018experience.\u2019\u201d \u00a0The danger of denying national ethos (as we find in the doctrinal interpretation) is that \u201crules will be the preservation of order,\u201d and those subject to constitutional rules will necessarily be reduced \u201cto mere objects of the administered life and the constitution becomes a form of “repressive law” that “gives short shrift to the interests of the governed\u201d<\/p>\n

At the same time, Post has also pointed out that that it would be \u201cinappropriate for judges to appeal such \u2018national\u2019 ethos as a form of constitutional authority,\u201d as it runs the risk of making judges partisan. In fact, \u201cany attempt to interpret the Constitution on the basis of the authority of a national ethos will necessarily degenerate into an unwarranted imposition of private judicial preferences.\u201d Furthermore, \u201cif there are only discrete individual preferences, and if the nation does not have any national ethos, there is no reason why the consent of those long dead should hold any particular authority for the present generation.\u201d\u00a0 Dissolving the responsive interpretation could potentially lead to dissolution of \u201cthe Constitution as a specific written text.\u201d<\/p>\n

Responsive interpretation becomes compelling when the doctrinal and historical interpretations of the Constitution are in fact root causes of the injustices (under the tyranny of the majority, military, and property-owning class). On the one hand, judges who do not take the national ethos into account will render them incapable of delivering justice and fairness; on the other hand, bending to the national ethos will make the justice system unpredictable and incoherent.<\/p>\n

Despite these complexities, the Constitution and its interpretation cannot be separated. The Constitution can only exist with interpretation. Regardless of the constitution or its interpretive framework, the basis for its interpretation should at least be natural justice, defined as follows by Robert Moor:<\/p>\n

We don\u2019t have to do anything to earn them, and thus there is equality in their \u00a0distribution that survives the obvious inequalities that exist between persons with respect to their efforts, their natural endowments, or their social advantages. It is in this sense that \u00a0natural rights philosophies are egalitarian in character.<\/p><\/blockquote>\n

Moor\u2019s claim is that natural justice is self-evident simply because we humans have basic need for survival and \u201cwhat we have right to is a matter of principled Generality.\u00a0 \u201dNatural justice is based on the notion that laws and morals are inseparable; hence, judges should be sensitive to how the law advances natural justice. Looking at the Constitution from the perspective of natural justice, the courts appear to be far better suited to interpret the Constitution than elected representatives because they are organized as the most appropriate institutions to achieve equality, generality, and morality.<\/p>\n

The courts have more time and flexibility to incorporate doctrinal, historical and responsive interpretations than do politicians. \u00a0Unlike politicians, judges\u2019 interpretations do not necessarily challenge their material and social existence, even if politicians appoint them. \u00a0In particular, the capacity of the elected officials to deliver natural justice is limited when they are complicit with and directly contribute to the inequalities and injustices arising from a capitalist, ethno-nationalist, patron-clientalist and kinship-based governance.\u00a0 In such situations, even if elected officials resort to direct politicization and harassment of the Judiciary, the Judiciary can better anchor their decisions in natural justice.<\/p>\n

According to Robert Moor of the Fordham Law School, the courts are relatively insulated from politics and do not represent the majority\u2019s interests. In fact, majoritarianism does not lie at the heart of the courts as it does in the democratic legislature; therefore, courts are not as tempted to slide from majoritarianism to utilitarianism. The courts are used to non-utilitarian forms of reasoning that involve seemingly conflicting norms. In fact, according to \u00a0Moor \u201cMore intense preferences tend to receive more intense political expression by voters, and more intense political expression by voters tends to generate more intense representation by legislators; legislation emerging from such a process will often accord \u00a0with what \u2018the most prefer,\u2019 i.e., with utilitarianism.\u201d<\/p>\n

Morality and justice are not congruent with majority preference, and \u2019such \u201cutilitarianism is incompatible with natural justice.\u201d \u2018\u201cIf justice, is a virtue of social institutions then formal justice is the virtue of judicial institutions courts,\u201d Moor concurs with John Ralws.<\/p>\n

For Max Weber, modern societies are a form of legal domination because the exercise of political power is considered intrinsic to the law. This reasoning implies that the law is an exercise of legitimate power because it derives its legitimacy from the formal properties of law.\u00a0 Morality, then, is independent of law, and law has its own intrinsic rationality.\u00a0 However, the original enactments of laws are not independent of the moral worldviews of their authors.\u00a0 In modern states, enactment involves combating corruption and inequality and maintaining human dignity and justice.\u00a0 Enactment is about exercising morality because morality gives the public the right to enact the law.\u00a0 Moral reasoning and argumentation is enacted through the law.\u00a0 If morality is rejected in favor of formal properties or because it undermines the rational basis of the law, it also provides legitimacy to legal domination enacted by politicians.\u00a0 These reasons make the interpretation based on fusing morality with law a necessity for neutral justice.<\/p>\n

Although popular bodies are elected and they express popular will, the policies of seated elected officials may not express popular will.\u00a0 Alternatively, they automatically provide a space for the people to express their will regarding their reforms or the interpretation of constitutions.\u00a0 The elected officials may privilege particularistic interests of the party at the expense of natural justice, primarily because they are simply instruments of (perhaps even blackmailed by) those who control party decision making. As such, they cannot freely express their views.<\/p>\n

Moreover, that which appears as popular will may be the private interests manufactured as public interests. Popular will may mask the fact that power is concentrated in the hands of a minority. Elected officials may use such popular will to justify use of abstract clauses of the Constitution to prevent judicial oversight of the affairs of the legislature.<\/p>\n

Even if popular will expresses the will of the majority, the will of the majority may be the root cause of the denial of natural justice to minorities. Demand for justice by disenfranchised minority groups may be considered as a violation of the constitution, when constitution is an expression of majority interests.\u00a0 The point is not to entirely dismiss popular will, but to assess its proximity to natural justice within the prevailing context of the political economy and culture.<\/p>\n

The executive president can appear neutral by using immunity to distance him\/herself from the particular interpretation of the Constitution and its resulting consequences. In Sri Lanka, the president represents a particular political party, and therefore, heads important bodies of decision making and intervenes in the matters concerning law and order. The executive President is a de facto elected official and he should not be precluded from judicial review if the president irresponsibly uses immunity to obstruct natural justice.<\/p>\n

Moor goes on to argue that unlike the judges legislature need not justify the vote they get or return to the voters seeking justification of their decisions nor his job is to find \u201cwhere truth of the matter lies, \u201d\u00a0 which makes job accepted by many legislators is less compatible with the reasoned justification needed to protect natural rights.\u201d Because the legislature is a place for businesslike compromises \u201cthey capture the popular imagination less than courts, and have as a result less capacity to educate a citizenry in the long run about the moral rights of people.\u201d Unlike legislature courts are not agencies of compromise and thus have less need of the kind of common metric offered by monistic theories like utilitarianism.\u201d<\/p>\n

The Constitution controls the actions of the legislature because it is the highest law.\u00a0 As Melvin Aron Eisenberg notes, because the \u201ccourts are the mere instruments of the law,\u201d they are peculiarly fitted to interpret a Constitution, the authority of which lies in its character as law. If the Constitution predominates because it is law, then its interpretation must be constrained by the values of the rule of law. \u00a0(Osborne v. Bank of the United States, 1824)<\/em>\u00a0 <\/em>The courts must construe it through a process of reasoning that is replicable, remains fairly stable and is consistently applied. However, when the values of the rule of law undermine justice, judges\u2019 interpretation of the laws\u2014according to natural justice\u2014becomes necessary. The purpose of the interpretation here should create conditions for a minimalist sense of \u201cthe good society.\u201d<\/p>\n

Judiciary rather than the elected officials are better positioned to interpret the constitution by supposing the coherence of the Constitution as a whole, and then asking whether the norm or norms are applicable to the case in question or fit closely with the majority of related norms. \u00a0If the norms are unclear, the court will have to choose or devise a norm that is consistent with the whole. The court alone has the right to choose or formulate norms by deliberating conflicting positions and determining whether the choice is consistent with the whole system.<\/p>\n

The Constitution itself is about power relations as it disciplines the society to function in a certain way.\u00a0 A common challenge to all three forms of constitutional interpretation is the power in the society, as power could be both positive and negative.\u00a0\u00a0 Interpretations and their translation into action are exercise of power.\u00a0 Moreover, exercise of power can evade the intentions of the interpreters and produce unintended consequences.\u00a0\u00a0 The purpose of Judiciary in a democratic society is to minimize the abuse of power.\u00a0\u00a0 In this regard, the judiciary compared to legislature is better positioned to analyze power maintain greater distance from the place where power resides and put into action, and its interpretations is less likely to threaten its existence of judiciary as an institution.<\/p>\n

Elected officials are expected act in \u201cgood faith\u201d regarding judges\u2019 decisions. This does not mean that judges in infallible not vulnerable to same forces that corrupt the elected officials hence should not be held accountable. \u00a0In fact, a tyrannical Judiciary could be worse than a tyrannical majority. \u00a0Elected officials, though not supreme has the legitimate right to ensure the ethical conduct and competencies of the judges and they must ensure that judges are responsive to concerns of the citizens at given moment in time…<\/p>\n

This does not necessarily mean that elected officials have the authority to impeach judges when even the Constitution permits them to do so. Authority is not the same as right, and authority needs to be granted by the Judiciary. \u00a0Elected officials make the decision to impeach based on majority vote. Majority vote is a brokered power relation which may or may in accordance of the law and natural justice.\u00a0 This is particularly true in situations where the decision making in the legislature is tampered with bribery, nepotism, authoritianism and militarism, all of which is used to mobilize tyranny of legislative majority, and there is widespread public dissent against it.\u00a0 Judiciary on the other hand is less susceptible to these because in ideal settings their interpretation of the constitution is derived from rules of natural justice.<\/p>\n

The Judiciary has the sole power to declare that a particular act does not constitute a high crime, an ethics violation, or a misdemeanor worthy of impeachment. The Court determines if Parliament follows the due process and has exceeded its power in removing a public official. Any doubts concerning impeachment need to be resolved by judges, ideally in favor of the independence of the judiciary. Otherwise, the independence of the judicial system could be tampered with, allowing elected officials to use impeachment as a means to crush political adversaries or remove them from public office. \u00a0Nothing could be more destructive to natural justice and democracy.<\/p>\n","protected":false},"excerpt":{"rendered":"

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