Dr Kamal Wickremasinghe -Courtesy The Daily News

It is becoming increasingly apparent that the ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”support groupƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ of the Chief Justice (CJ) led by the godfather of the NGOs, J.C. Weliamuna, and sections of the Bar Association of Sri Lanka connected to Wijedasa Rajapkshe have botched the legal and procedural strategy of her case, due mainly to their keenness to turn the impeachment into a rallying point for anti-government protests.

First there was the major blunder of the walk out of the PSC hearing; Then there was the request to the Speaker of Parliament to appoint an external panel, a power that has not been bequeathed upon him by the Constitution; Now a petition citing the Speaker, the PSC and the General Secretary of Parliament, requesting a writ of certiorari to invalidate the findings of the PSC which found her guilty of three charges.

The petition is the most cynical of all efforts to blow up the impeachment issue into an ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”independence of judiciaryƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ issue. The decision to file such a petition against the background of the SpeakerƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s pronouncement in Parliament last month in response to a Supreme Court shows that the motive is strategic rather than a desire to seek justice: it has been designed with the objective of generating friction between the Parliament and Judiciary.

The farcical frenzy following the decision of the three-judge Bench of the Appellate Court that it has the jurisdiction to hear the petition, and the issuance of orders to the Speaker and the PSC to appear before the court on January 3, 2013, is bound to come to nothing in the light of the SpeakerƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s previous declaration.

The excitement among the support group could only be based on misreading, or failure to discern the nuances of language in the Appellate Court decision. The supporters and the legal team have surely missed the ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”sting in the tailƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ of the decision that:

ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-This court is conscious of the of a ruling of the Honourable Speaker on the notice issued by this court (in relation to another application pending in this court) on the Hon Speaker and on the Members of the Select Committee appointed by the Hon Speaker. Where Hon Speaker ruled:

ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-I declare that the purported Notice, issued to me and to the Members of the Select Committee are a nullity and entail no legal consequences. I wish to make it clear that this ruling of mine as Speaker of Parliament, will apply to any similar purported Notice, Order or Determination in respect of the proceedings of the Committee which will continue solely and exclusively under the authority of Parliament.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚

On this ruling of the Hon Speaker this Court wishes to have it placed on record that the order to issue notice on the Respondents of this application is nothing but a legal obligation on the part of the court to afford the Respondents an opportunity of being heard, thus adhering to the concept of audialterampartem.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚

Parliament proceedings. File photo

These two paragraphs clearly show that the Appellate Court was a) fully aware of the SpeakerƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s position on any orders by them, and b) that they were simply doing their job in terms of ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-hearing both sidesƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ (audialterampartem). To that extent, the Court decision confirms that the impeachment case has incorporated the full content of the ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”due processƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢.

Any genuine incapacity to read the decision amounts to legal ineptitude on the part of the legal team and such sloppiness, ironically in a case involving the countryƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s CJ no less, shows that her defence has turned into a ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”circus run from the monkey cageƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢!

US Judiciary is a bad example

The wasteful use of courtƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s time on purely a tactical move that did not offer any prospects of furthering the CJƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s interests could only have been adopted under instructions from advisors from interested foreign embassies and her local NGO guardians. The advice is clearly based on attempts to create tensions between the Legislature and the Judiciary, similar to the experience in the US as they would well know; A sad indictment on the strategic motives of the CJƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s self-appointed helpers.

The US experience in this area, just as feared by the drafters of the Constitution, has turned out to be a hugely complicating factor in the functioning of a democratic form of government: recognising the necessity of judicial restraint, Thomas Jefferson wrote,ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-It is a very dangerous doctrine to consider the judges as the ultimate arbiters of all constitutional questions. It is one which would place us under the despotism of an oligarchy.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ James Madison wrote in The Federalist Papers that to combine judicial power with executive and legislative authority was the ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-very definition of tyranny.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚

Abraham Lincoln warned in his first inaugural address in 1861: ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-if the policy of the government affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court…the people will have practically resigned their government into the hands of that eminent tribunal.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚

Such fears have largely been realised: the unchecked expansion of power exercised by unelected judges usurping the policy making authority is one of the most intractable contemporary constitutional issues affecting the US democracy;The tendency of the US courts to nullify laws passed by legislatures, those on fundamental issues relating to the moral and religious views of the US society such as gun ownership and abortion in particular, to reflect their own policy preferences has been responsible for bad policy and given rise to difficulties of governance. This is to be expected because courts are not designed to make broad public policy: their decisions are bounded by the facts of particular cases, and do not involve stakeholder consultation concerning the possible ramifications of wide application.

Separation of power gone too far

The fabled Marbury v. Madison (1803) decision by John Marshall, often cited by proponents of the doctrine of separation, demonstrates the dangers of a Judiciary with its own policy agenda and the determination to implement that agenda.

Marshall, the fourth Chief Justice of the US (1801-1835), was a man with a reputation for being a cunning operator who represented vested interests in the halls of power. He first replaced the Supreme Court tradition of per seriatim opinions (judges reading his or her own opinion and justification) with a ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”single opinion of the CourtƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢, usually written by himself, allowing the Supreme Court to project unity and assert greater authority.

The brief summary of Marbury, one of the early cases of Marshall’s 34-year tenure, is that William Marbury lost an appointment as a Justice of the Peace (JP) by President Adams, just before he lost office. As it happens in many countries, the appointment made by the outgoing government was withheld by the newly elected government of President Jefferson, specifically by the Secretary of State James Madison. Marbury went to the Supreme Court,requesting that a writ of mandamus (a court order compelling an official to take action) be issued to Madison to commission him and several others as JPs. Chief Justice John Marshall sent Madison a motion to show cause why the Supreme Court should not grant Marbury’s request. Madison ignored the court order.

Marshall ruled that William Marbury was legally entitled to his commission as JP, and that the federal courts had jurisdiction over the matter. However, Marshall also ruled that the Supreme Court lacked original (trial) jurisdiction over the case due to lack of Constitutional authority. He also ruled that Congress had overstepped its authority granted by the Constitution in enacting the Judiciary Act of 1789 that empowered the Supreme Court to issue writs of mandamus to government officials. Marshall declared that section of the Act unconstitutional, and ordered Marbury to refile his case in District Court.

Legal analysts believe that MarshallƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s deviously ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”brilliantƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ decision was based on his fears that a ruling in Marbury’s favour would give rise to a conflict with the Executive the Judiciary was unlikely to win. He adopted a technique he was renowned for: giving his more powerful opponents a minor victory that hid the far-reaching implications,his true goals. Through Marbury Marshal achieved his goal of affirming the right of judicial review.

Neither Jefferson nor Congress chose to fight Marshall over Marbury because the decision ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-appearedƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ to support their interests. William Marbury never refiled his case either.

Caught out by Marshall’s trickery and judicial activism, Thomas Jefferson later branded his intricate legal theories ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-twistifications.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ Congress and the Executive reacted to the intensifying power grab by the Judiciary through constitutional amendments designed to override Supreme Court decisions: the Eleventh (1793), the Thirteenth and the Fourteenth (1857), the Sixteenth (1895), and the Twenty-sixth (1970)Amendments were designed to overturn Supreme Court decisions.

The Supreme Court also faced instances of non acquiescence(the intentional failure to comply with the decisions),especially from the States: in 1832, the state of Georgia ignored the Supreme Court decision in Worcester v. Georgia. President Andrew Jackson who sided with the Georgia courts is supposed to have remarked, ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-John Marshall has made his decision; now let him enforce it.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚

The separation of power is not settled

Despite Marbury, the doctrine of separation of powers remains not enshrined in the text of the US Constitution, but discerned by courts, scholars and others. Many questions relating to the rules of statutory interpretation cast doubt about the strength of the opinions on this matter, based on interpretations of the ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-intentƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ of drafters of the US Constitution.

It is often ignored by proponents of equal separation of power that Article I of the US Constitution that lays down the powers of the legislative branch is considerably more detailed and specific with respect to the authority of and limits on Congress, compared with Articles II and III which address the powers of the Executive and the Judicial respectively; This is to be expected because the Legislature deals with the overall powers of the elected government and other branches. In the final analysis, other branches are instruments designed to help the elected government achieve objectives favourable to the people.

The ability of Congress and the Executive branch to regulate immigration policy and practice through ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-plenary powerƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚vested in the Legislature (absolute power with no review of, or limitations upon, the exercise of the power) is one example of the national interest imperative being achieved through the Legislature.

Adopting the separation of power doctrine emanating from the US Constitution without proper analysis of the significant doctrinal issues that remain unaddressed, and in the face of the adverse impacts it has had on the operation of the democratic form of government in the US is unwise, to say the least.

Impeachment process is sound under the 1978 Constitution

Those who complain about alleged ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”unfairnessƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ of the Impeachment of the CJ on the basis of deficiencies in the procedure laid out in the1978 Constitution need to accept the fundamental legal principle, as well as the reality, that the Constitution, as is, remains the highest law in Sri Lanka. The just concluded Impeachment process has not violated any of the relevant laws as contained in the Constitution.

Any grievances relating to the legally valid procedure, and suggestions for rectification need to be submitted to the government through democratic processes of consultation since the Constitution ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”needs to beƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ the foundation on which every area of civil, criminal, and administrative law should function, as well as evolve,to reflect the needs of the Sri Lankan people, represented by governments duly elected by them.

The current ‘protest’ movement against CJƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s Impeachment, taken against the background of the charges, the evidence and the legally valid procedure that has been followed, appears a desperate attempt to politicise the issue outside the legal arena. It will prove futile due to lack of a valid legal foundation.

Charges that the Impeachment of CJ is an attack on the independence of Judiciary reminds the age old rhetorical question in law:ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-Does the arrest of a postman for murder by police violate a law against obstructing the passage of the mail?ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚