H. L. D. Mahindapala

Let’s face the reality as it is in our faces now.

Both sides have taken their gloves off and are fighting with bare knuckles. The judiciary has takenƒÆ’-¡ƒ”š‚  its glove off and dropped all pretences of fighting for “the independence of the judiciary”. It is now fightingƒÆ’-¡ƒ”š‚ in Courts for the survival of the Chief Justice, Dr. Shirani Bandaranaike. The Speaker, Chamal Rajapakse, too did notƒÆ’-¡ƒ”š‚  mince his words in Parliament when he told the Judiciary on Thursday to back off and mind its own damn business, without, ofƒÆ’-¡ƒ”š‚ course,ƒÆ’-¡ƒ”š‚ saying so directly.

The unravellingƒÆ’-¡ƒ”š‚ developments, however,ƒÆ’-¡ƒ”š‚ indicate that itƒÆ’-¡ƒ”š‚  is the Judiciary that is buckling at the knees. For instance, despite its bravado the CJ appeared before the Parliamentary Select Committee to face the 14 charges levelled againstƒÆ’-¡ƒ”š‚ her.ƒÆ’-¡ƒ”š‚ This is a very significant move loadedƒÆ’-¡ƒ”š‚ with meaning. With her appearance she has conceded, in essence, the right ofƒÆ’-¡ƒ”š‚ ParliamentƒÆ’-¡ƒ”š‚ to hear her case. If she was legally certain that the Parliament has no right she would not — knowing the law as she does — appear before Parliament.ƒÆ’-¡ƒ”š‚ If the law was on her side, as she claims it to be, thenƒÆ’-¡ƒ”š‚ she should have taken theƒÆ’-¡ƒ”š‚ courageous stand of telling Parliament to fly a kite byƒÆ’-¡ƒ”š‚ the lake. In matters like impeachment, the contestants do not act on principles of courtesies.ƒÆ’-¡ƒ”š‚ These are matters of life and death and those involved stand by their principles — legal or otherwise –ƒÆ’-¡ƒ”š‚ come what may. At least, this is what the neutral public would expect from those in exalted positions, claiming exclusive proprietorial rightsƒÆ’-¡ƒ”š‚ to theƒÆ’-¡ƒ”š‚ moral high ground.

Besides, in a head-on collision like the one she is facing now, every act has a political, legal and moral meaning. And the meaning she has conveyed by appearing before the PSC is that she has no solid legal rights to reject the call from Parliament to appear beforeƒÆ’-¡ƒ”š‚ it on the appointed day. It was the Judiciary that decided to contest the right of the Parliament to try the CJ and the CJ made her first move by appearing before a “court” which she says is illegal.ƒÆ’-¡ƒ”š‚ Either she doesn’t know the law or she is openly admittingƒÆ’-¡ƒ”š‚  that she is on shaky legal groundsƒÆ’-¡ƒ”š‚ and, therefore, she hasƒÆ’-¡ƒ”š‚ no alternative but to appear before the PSC.

So the first round goes to Parliament.

The second round is more pugilistic and pugnacious.ƒÆ’-¡ƒ”š‚ The Speaker, Chamal Rajapakse, stepping outƒÆ’-¡ƒ”š‚ of hisƒÆ’-¡ƒ”š‚ corner, has dealt an upper cut that has floored the Judiciary for the second time. The first time was when the former Speaker, Anura Bandaranaike, knocked down the Judiciary when it tried to step into the jealously guarded precincts’ of the Parliament. Following in his footsteps Speaker RajapakseƒÆ’-¡ƒ”š‚ hadƒÆ’-¡ƒ”š‚ with one unmistakeable blowƒÆ’-¡ƒ”š‚ knocked down the Judiciary for good. This might even lead the law-makers to redefine the contested law to make it clear to the judiciary where it stands in relation to the Parliament and its procedures. At least, they should do so now to keep the meddlesome Judiciary out of their hair.

All this has placed the Judiciary in no-man’s land. What will the Judiciary do now that the Speaker has clearly told the Courts to get off the back of Parliament and find a job some where else? Speaker’s message to the Courts is unambiguous and decisive. Moreover, he has the backing of the main opposition party, UNP. It is a formidable frontƒÆ’-¡ƒ”š‚ which can block any moves of the Judiciary to invade the Parliament. The established precedentsƒÆ’-¡ƒ”š‚  that have consolidated itself into an unshakeable convention is very clear: Parliament will not give in to intrudersƒÆ’-¡ƒ”š‚ trying to muscle their way into the legislature.ƒÆ’-¡ƒ”š‚ This places the Judiciary in a very awkward, if not a defeated corner, particularlyƒÆ’-¡ƒ”š‚ after it decided to roll up its sleeves and take on the Parliament.

The Speaker’s statement was forthright and firm. It reflects just not only the full force of the political power behind him.ƒÆ’-¡ƒ”š‚ Practically, the whole House is behind him.ƒÆ’-¡ƒ”š‚ It goes beyond that to confirm the legal power enshrined in Parliament to determineƒÆ’-¡ƒ”š‚ its own course and that of the nation, without external interventionists dabbling in its internal affairs. In other words, he is sayingƒÆ’-¡ƒ”š‚  that in a contest between the Judiciary and the Legislature the Parliament is supreme. This, of course, does not mean that it is the death of the separation of powers, or the end of the independence of the judiciary. The overlappingƒÆ’-¡ƒ”š‚ of powers will continue to be contested by both parties in the future too. But it certainly means the end of judicial adventurism to grab power which itƒÆ’-¡ƒ”š‚ does not have in law.

In Article 107 (3) the framers of the ConstitutionƒÆ’-¡ƒ”š‚ had invested power of trying judges in superior courts inƒÆ’-¡ƒ”š‚ StandingƒÆ’-¡ƒ”š‚ Order 78 A.ƒÆ’-¡ƒ”š‚  This, however,ƒÆ’-¡ƒ”š‚ can be contested as seen in the action of CJ. Of course, Standing Order 78 A, which had not been questioned before by the CJ, orƒÆ’-¡ƒ”š‚ her patrons like the former President Chandrika Kumaratunga, now stands as a direct threat toƒÆ’-¡ƒ”š‚ the seatƒÆ’-¡ƒ”š‚  she holds in the Courts.ƒÆ’-¡ƒ”š‚ It is natural for her to fight to retain the seat andƒÆ’-¡ƒ”š‚  invoking the popular and fashionable theory of “the independence of the judiciary” is as good enough any other available reason. But it is incumbent jupon her tooƒÆ’-¡ƒ”š‚ to abide by the law as it stands now,ƒÆ’-¡ƒ”š‚  particularlyƒÆ’-¡ƒ”š‚ after she and all those behind her had been silent on this Standing Order up until now. The worst case scenario is President Kumaratunga who used 78 A against the former Chief Justice Sarath Silva and thenƒÆ’-¡ƒ”š‚  denouncing it now to protectƒÆ’-¡ƒ”š‚ her protƒÆ’†’ƒ”š‚©gƒÆ’†’ƒ”š‚©, Dr. Bandaranayke.

The fuss over 78A is much adoƒÆ’-¡ƒ”š‚  about nothing.ƒÆ’-¡ƒ”š‚ What is contained in Standing Orders 78 A are theƒÆ’-¡ƒ”š‚ mechanistic details as to how Article 107 (3) can be enforced. The untouchableƒÆ’-¡ƒ”š‚ legal principle recognising Standing Order 78 A as the instrument forƒÆ’-¡ƒ”š‚ judging judges has been spelt out in black and white in Article 107 (3). Standing OrderƒÆ’-¡ƒ”š‚ 78 A is inextricably linked to Article 107 (3. Standing Order 78 A is the gun that delivers theƒÆ’-¡ƒ”š‚ legal force to the law enshrined in Article 107 (3).

If, however,ƒÆ’-¡ƒ”š‚ there is an interpretation, as requested by CJ’s legal team, to grab the legally enshrined power in the Parliamentary Select Committee and handƒÆ’-¡ƒ”š‚  it over to the Judiciary the backlash would be severe. First, howƒÆ’-¡ƒ”š‚ isƒÆ’-¡ƒ”š‚ the Judiciary going to hang on or implement a partisan judgment that goes against the expressed intentƒÆ’-¡ƒ”š‚ of the law and the will of the Parliament? How can the Judiciary implement the decision without the consent and cooperation of the Legislature? Who is going to force Parliament to hand over its power toƒÆ’-¡ƒ”š‚ an outsider? And, above all, what is the legality of an interpretation that goes against the law writtenƒÆ’-¡ƒ”š‚ unequivocally into the statute book? Will not that be a political interpretation biased in favour of the CJ to preserve her seat which, of course, is disguised as “independence of the judiciary”.

As stated many time earlier, the independence of the judiciary will not end with the CJ facingƒÆ’-¡ƒ”š‚  charges before the duly appointed “court”. If the law is observed as it stands and as it should be — and that is the fundamental obligation ofƒÆ’-¡ƒ”š‚  the judiciary — then the Judiciary will have the grand opportunity of not only doingƒÆ’-¡ƒ”š‚  justice but also makingƒÆ’-¡ƒ”š‚ sure that justice is also seen to be done.

Finally, the strengths of the Judiciary and Legislature are expressed in the tone and the language used by both in this contest. The Supreme Court used very cautious language in making the request to Parliament to wait till the Courts had arrived at a decision on the issues raised in court. Besides, the request was alsoƒÆ’-¡ƒ”š‚  delivered in very mild and courteous tones. It was a clear sign that itƒÆ’-¡ƒ”š‚  had no authority to do so but, nevertheless, was kindly appealing toƒÆ’-¡ƒ”š‚ Parliament to consider their request.

The Speaker, on the other hand, was very assertive. He wanted toƒÆ’-¡ƒ”š‚  convey thatƒÆ’-¡ƒ”š‚  he was standingƒÆ’-¡ƒ”š‚  on unshakeable grounds. HeƒÆ’-¡ƒ”š‚  wanted to makeƒÆ’-¡ƒ”š‚ sure that the Judiciary got the message without any ambiguity. He said: “On careful consideration of this matter, I wish to convey to the House my ruling that the Notices issued on me, as Speaker of Parliament, and on the Members of the Select Committee appointed by me, have no effect whatever and are not recognized in any manner.

I declare that the purported Notices, issued to me and to the Members of Select Committee are a nullity and entail no legal consequences.

I wish to make is clear that this ruling of mine as Speaker of Parliament, will apply to any similar purported Notice, Order of Determination in respect of the proceedings of the Committee which will continue solely and exclusively under the authority ofƒÆ’-¡ƒ”š‚ ”

One bit of oral evidence I’ve heard fromƒÆ’-¡ƒ”š‚  Hulftsdorp can beƒÆ’-¡ƒ”š‚ relevant to new reality. AƒÆ’-¡ƒ”š‚ lawyer friend of mine told me that S. J. V. Chelvanayakam was in the habit of pullingƒÆ’-¡ƒ”š‚  outƒÆ’-¡ƒ”š‚ his ear plugs after he had made his submissions to court, hopingƒÆ’-¡ƒ”š‚ toƒÆ’-¡ƒ”š‚ deflate and demoralise the counsel on the other side. Unless the Judiciary intends to emulate Chelvanayakam byƒÆ’-¡ƒ”š‚ closeting itselfƒÆ’-¡ƒ”š‚ inside a sound-proof chamber, fitted alsoƒÆ’-¡ƒ”š‚ with ear plugs toƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ ignoreƒÆ’-¡ƒ”š‚ the world around it, the message should have penetrated the cranium by now. ƒÆ’-¡ƒ”š‚ It is Chelvanayakam’s deaf refusal to takeƒÆ’-¡ƒ”š‚ cognisance of whatƒÆ’-¡ƒ”š‚  the Sinhalese had to say that made himƒÆ’-¡ƒ”š‚ the “Thanthai” (father) of all theƒÆ’-¡ƒ”š‚  Jaffna Tamils whom he dragged to Nandikadal.

Poised on the brink of another unwanted crisis the nation can only hope that the Judiciary will notƒÆ’-¡ƒ”š‚  turn a deafƒÆ’-¡ƒ”š‚ ear toƒÆ’-¡ƒ”š‚ the voice of the law, if notƒÆ’-¡ƒ”š‚  to the voice of the inevitable. It’sƒÆ’-¡ƒ”š‚ gamble against the LegislatureƒÆ’-¡ƒ”š‚  is not taking it anywhere. It’s time the Judiciary accepted the law which itƒÆ’-¡ƒ”š‚  is sworn to do before man and law.