H. L. D. Mahindapala

ƒÆ’-¡ƒ”š‚ By its very nature impeachments rouse public passions to feverish pitches as seen in the cases of President Bill Clinton and President Ranasinghe Premadasa. One of the reasons is the high public profile of those impeached. Second, the process and the final decision, which are invariably politicized by both sides, intentionally or unintentionally, can also have serious consequences. Besides, impeachments also tend to polarise society as seen in the current case where lawyers, most of whom ganged up initially against the appointment of the CJ, did a flip and screamed: “Doshabiyogaya bangawewa” as the Chief Justice, Dr. Shirani Banadaranayake, was about to leave for Hulftsdorp and face the Parliamentary Select Committee (PSC) in Jayawardenepura. (The video of this demonstration of loyalty to the CJ by the kalu koat karayas (KKKs) is now circulating in cyber space. The Kalu Koat fans only stopped short of asking for her autograph!)

ƒÆ’-¡ƒ”š‚ There were no signs among the KKKs who milled round the CJ that they could trigger of a political revolt from Hulftsdorp. They were letting off a lot of hot air which seemed theatrical acts done more to register their faces for future reference with the CJ. It seems to be an act more of buying an insurance policy to advance their careers than fighting for the independence of the judiciary. They were yelling their lungs out, punching the air, as if the Supreme Court and the independence of the judiciary would collapse once Chief Justice goes to face the PSC in Parliament. But the history of the judiciary has shown that individual judges come and go and the Supreme Court and the independence of the judiciary (which has been fluctuating depending on who presides as the CJ) will go on marching as long as the people need a judiciary to adjudicate on their affairs. Besides, the independent spirit of the mature sovereign people will never let a King Kekila take over the judiciary and run it according to whiims and fancies. The sense of justice runs deep in our sovereign people.

ƒÆ’-¡ƒ”š‚ Predictably, the passions roused in the impeachment of the CJ tend to split the community and the polity on political lines. The UNP, TNA, NGOs, the Western embassies, the KKKs’s, left-wingers and the usual suspects in the anti-Government lobbies have lined up behind the CJ. (The signature placed by the doughty fighter on behalf of the nation, S. L. Gunasekera, has surprised many and he certainly must be having his own reasons to go against the impeachment motion). However, their general complaint is that the impeachment is a politically motivated act, or it is a vindictive act against the CJ who had given decisions against the government, or it violates the independence of the judiciary.

ƒÆ’-¡ƒ”š‚ These accusations tend to divert attention from the main issue of CJ’s conduct. She faces 14 charges and there is a prima facie case which she has to answer and she in turn has filed her response. Her replies are circulating in web sites . Incidentally, these publications violates the Standing Orders. It could have come out only from the members of the opposition. The leak is undoubtedly a politically motivated act to counter the charges faced by her. Both sides are engaged in secret campaigns against each other to capture the moral high ground. The Chief Justice too, who is aware of the necessity of winning this campaign, is not averse to winding down her car and smile for the camera as she moves up and down to Parliament. Besides, KKK mob jumping up and down at Hulftsdorp, or dashing coconuts do not add to her stature or that of the legal fraternity.

ƒÆ’-¡ƒ”š‚ Moving on, it must be noted that there are several intertwining strands involved in the current controversy over the impeachment. All strands — political, legal, financial, familial (i.e. CJ’s handling of her sister’s investments and her husband’s affairs), ideological, historical etc., — weave through twists and turns into the single issue of the independence of the judiciary. Both sides are canvassing this issue. However, the critical phrase “independence of the judiciary” does not give judges the licence to act arbitrarily, impulsively, egotistically or arrogantly to boost their power and ego. The judges too are liable for any misconduct and it is to restrain and control the “misbehaviour and incapacity” of the judiciary that Article 107 is written into the Constitution to deal with the conduct of only judges in the superior courts.

ƒÆ’-¡ƒ”š‚ CJ has made it clear that she is determined to fight back and has challenged the right of parliament to try her. This drags the whole issue deeper into murky politics. The Judiciary and Parliament are testing each other’s nerve to see who would blink first. The final outcome will draw the indelible parameters of the future powers of both branches of the state. The primary objective of CJ’s legal team is to cut down the powers of the Parliament and acquire as much power as it can for the Judiciary. Naturally, CJ’s team of lawyers is pushing with all their might in courts to downgrade Parliament by increasing the powers of the Judiciary.

ƒÆ’-¡ƒ”š‚ As matters stand now, there seems to be a balance of power between the Judiciary and the Legislature which, in a way, accords with the principles of separation of power. There is provision in the law for the judiciary to try members of the legislature and vice versa. There is no other provision to try and remove judges of superior courts for misconduct or incapacity other than through impeachment by Parliament.

ƒÆ’-¡ƒ”š‚ The strategy of the CJ’s legal team, however, is to invoke Article 125 (7) and impress on the judges of the Appellate Court that the time has come for the judiciary to grab power and place it above Parliament. According to their argument Parliament is invoking the powers invested in Standing Order 78A which will undermine the independence of the judiciary. There is a certain degree of overlapping of powers, no doubt. But this is not unusual nor has it undermined the principles of separation of powers. Similar provisions exist in USA where the separation of powers is defined clearly. For instance, the Congressmen in the Lower House impeaches the judges and the Senate in the Upper House sits in judgment. And if found guilty the accused is booted out with a two thirds vote in the Senate. The judiciary has no role in judging the impeached presidents or the judges. So the practice of the legislature turning into the prosecutor, judge, jury and the executioner is entrenched in the US impeachment process.

ƒÆ’-¡ƒ”š‚ The 1978 Constitution of Sri Lanka too grants the legislature the power of impeaching and trying the judges. The difference is that in US both houses are involved in the process. In Sri Lanka the process is confined to a select committee of the parliament in which the government and the opposition are represented by their members. In US the entire legislature participates in the proceedings while in Sri Lanka only a microcosm of the legislature is given powers to sit in judgement.

ƒÆ’-¡ƒ”š‚ In the current contest politics of both sides is covered in legal principles like “independence of the judiciary”, “separation of powers”, etc. All in all, there is much controversy as to whether the impeachment is a political process, or a judicial process, or both. Can the legislature sit in judgment over the judiciary? As shown above, this process has been tried and tested in the US Constitution and it has stood the test of time. In fact, it was the legislature that tried President Bill Clinton and not the judiciary. It is this power of Parliament enshrined in Article 107 of the Constitution that is contested by the CJ.

ƒÆ’-¡ƒ”š‚ The issues of constitutionality, morality, legality have cropped up out of the blue at the eleventh hour, only after the CJ was presented with 14 charges. Hardly anyone questioned the constitutionality earlier when President Premadasa was impeached by his own party. In the current crisis, one issue that has surfaced is whether the legislators can sit as judges of judges. In the case of President Premadasa hardly anyone questioned whether the Legislature can sit in judgment over the Executive. However, questions of whether the Legislature can sit in judgment over the Judiciary should be balanced with the equally controversial issue of whether the CJ can appoint judges to judge her. Under the Constitution and as head of the Judicial Service Commission it is the CJ who appoints judges to hear cases.

ƒÆ’-¡ƒ”š‚ In fact, one of the charges she is facing is just that. Her decision to appoint herself into the court hearing a case in which her sister was involved is one of the issues that is canvassed in the 14 charges against her. Well, if the CJ can appoint judges to judge her, or if she can appoint herself into a case where her sister’s investments were involved, what is wrong in Parliament appointing law-makers from both sides of the house to judge the judges?

ƒÆ’-¡ƒ”š‚ The rights and wrongs of Standing Order 78 A empowering the legislature to sit judgment over the judges is an issue that can be debated till the cows come home. CJ’s legal team is moving heaven and earth in courts to challenge the power vested in Standing Order 78A for PSC to try the CJ. In the submissions of K. Kanag-isvaran P.C. to the Court of Appeal reiterates the law as it stands. He states: ” 7. The question posed by the Court of Appeal as to the ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”forumƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ is predicated on an exigency arising from the provisions of Article 107(3) of the Constitution, which states: ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-Parliament shall by law or by Standing Orders(emphasis mine) provide for all matters relating to the presentation of such an address, including the procedure for the passing of a such resolution, the investigation and proof of the alleged misbehaviour or incapacity and the right of such Judge to appear and to be heard in person or by representative.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚

According to 107 (3) cited by counsel for CJ, K. Kanag-isvaran, the Parliament has the option of deciding the issue by ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-lawƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ OR (emphasis is mine) by ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-Standing OrdersƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚. Which means that Standing Order 78A is recognised in law as a legal entity on par with courts to deal with all matters pertaining to an impeachment. Nowhere in law is this Standing Order excluded. The conjunction “or” gives equal status to PSC as that of a court of law. And this power is enshrined in the 107 (3) of the Constitution.

ƒÆ’-¡ƒ”š‚ But more importantly, Kang-isveran also states that the option of deciding the methodology is given exclusively to Parliament . To quote him: “8. The Parliament has been given an option as to the methodology to be adopted for bringing to fruition the matters referred to in Article 107(3) including those relating to ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚¦the forum before which the allegations are to be proved, the mode of proof, burden of proof, standard of proof etc., of any alleged misbehaviour or incapacity in addition to matters relating to the investigation of the alleged misbehaviour or incapacity?ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ This is critical in deciding who has the power to hear cases of impeachment. If the option is given only to Parliament — the “law” is not mentioned — then it excludes the “law” as having the option to decide on hearing cases of impeachment.

ƒÆ’-¡ƒ”š‚ Lawyer Kanag-isvaran is absolutely clear that “the Parliament has been given an option as to the methodology to be adopted for bringing to fruition …..” matters related to impeachment. So his argument amounts to saying that the option given by law to Parliament should be removed and handed over to the courts. In other words, he is insisting that the Courts must stage a legal coup to grab the power vested in Parliament to adjudicate on judges of superior courts facing impeachment. The Constitution, as it stands, does not provide the “law” to pick either the methodology or the means to bring to fruition matters pertaining to impeachment. According to him it is the Parliament that has been given the option to decide on the methodology.

ƒÆ’-¡ƒ”š‚ Having conceded that the option has been given to Parliament — mark you, not to the judiciary — to decide on the methodology for hearing the case, he argues that the courts should now interpret under Article 125 (1) to give that option to the courts. Simply put, he is saying that the courts must engage in judicial activism to interpret the law in a manner that would reject the law enshrined in the Constitution and grab power from Parliament and hand it over to the courts to hear the case against the Chief Justice. He says: “9. The selection of whether it shall be by ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-lawƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ or Standing OrdersƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ thus became a matter of interpretation as articulated by the Court of Appeal in its reference made to Your LordshipƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s Court under Article 125 (1) of the Constitution. On that selection it is respectfully submitted hangs the future of the independence of the judiciary.”

ƒÆ’-¡ƒ”š‚ Translated, it means that he is trying a legal manoeuvre to empower the judiciary with the right to override Parliament and grab the power vested in Parliament by law enshrined in the Constitution. He hasn’t the power to go to sovereign people and get their consent to change the law. So he is trying a short cut to legalise, through an act of interpretation made by the courts, the underhand move of courts to grab power from Parliament. This is virtually a move to make the courts the law-maker in the guise of being an interpreter of the law. It is a move for the courts to usurp the powers of Parliament through unwarranted, if not devious, judicial activism open under Article 125 (1) which enables subjective interpretation .

ƒÆ’-¡ƒ”š‚ In the current climate, where the judiciary and the legislature are on head-on collision, it is a foregone conclusion that the courts would go all out to grab as much power as it could to override and subjugate Parliament to its will. The disguise of fighting for “the independence of the judiciary” is too transparent to hide the real objective: save the career of the CJ which is equated to saving “the independence of the judiciary” in their logic. But it is not her career that is going to save “the independence of the judiciary”. This cry is merely an act of fear-mongering. The independence of the judiciary depends of far greater forces than saving the seat of the CJ. Even a superficial probe into the legal system will reveal the lower depths to which the legal profession has sunk. A cleaner, upright, moral and professional legal system can maintain the independence of the judiciary more than all the political battles fought inside and outside Hulftsdorp.

ƒÆ’-¡ƒ”š‚ A start could be made by CJ who knows her law. Her own lawyers say that the power to try judges of superior courts is with Parliament, as stated in the Constitution. Her moral and legal duty is to face the charges in the place where the law says she must face and then accept the outcome, whatever that may be. That would set an example for all others to uphold the law as it ought to be.

But the manoeuvres of CJ’s legal team is to shift the hearing from Parliament to courts. This could be done only by the courts interpreting the law in its favour and saying that any Parliamentary hearing is unconstitutional. This is the outcome he expects when he told the Appellate Court: “9. The selection of whether it shall be by ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-lawƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ or Standing OrdersƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ thus became a matter of interpretation as articulated by the Court of Appeal in its reference made to Your LordshipƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s Court under Article 125 (1) of the Constitution. On that selection it is respectfully submitted hangs the future of the independence of the judiciary.”

ƒÆ’-¡ƒ”š‚ His conclusion is equally untenable. His logic is that “the independence of the judiciary” depends on the courts dismissing the prevailing law and grabbing power, which it does not have, from Parliament (1) to judge its own judges and then (2) to dictate the law to the legislature. This will put an end to the separation of powers. Now there are overlapping powers, as in any constitution struggling to demarcate the boundaries of each branch. If the judiciary wins it would clear the path for a dictatorship of the judiciary. Consensual opinion of the legal fraternity has declared that it has just come out of of the reign terror under one Chief Justice. The ex-Chief Justice acted in his own authoritarian style even though he knew that the Parliamentary sword of Damocles was hanging over his head.

ƒÆ’-¡ƒ”š‚ If that restraint is removed and absolute power is handed over to the Chief Justice, where only courts appointed by the CJ’s can judge the CJ, how long will the independence of judiciary last? The courts will be a fiefdom of the CJ with unrestrained power to run it according to the whims and fancies of the CJ. The first victims would be the legal fraternity. In the long run, it would be a disaster not only to the legal fraternity but to the nation as a whole. Under the Actonian principle, a judiciary under the command of a power-drunk CJ can be corrupt, dictatorial and abusive, perverting the judicial system not only to hear cases of the immediate family but even to override the other branches of the state.

ƒÆ’-¡ƒ”š‚ In short, Kanag-isveran is asking the courts to interpret the law in favour of the CJ — a move that would remove and deny Parliament the right to exercise its option which it had exercised lawfully in the past on matters of impeachment ( e.g., President Premadasa). He is saying, in other words, that only the judiciary with powers to hear all cases, including its own Chief Justice who appoints the judges, is the guarantor of the independence of the judiciary. This argument was summed up ages ago in the pithy Sinhalese idiom which says: “horagay amma-gen pay-na ahanna wagai.”

ƒÆ’-¡ƒ”š‚ However, both the courts and Parliament can be accused of political partisanship, or acting in its own interests to protect their respective power bases. But allowing the courts to judge the CJ, who appoints the judges, is a violation of the basic principle of separation of powers. There is some semblance of separation of powers if Parliament judges the judges. Besides, if the conduct of KKKs in Hulftsdorp is any indication of the political bias ruling the legal fraternity — particularly with the CJ lapping up the adulation and the poojas — then the courts must be written off as a fair and just means of hearing the case against the CJ.

ƒÆ’-¡ƒ”š‚ In summary, lawyer Kang-iswaran’s argument amounts simply to this: we have been playing tennis so far with a net in the middle, but for the sake of the CJ we must now play tennis without the obstructing net. This poses a serious question to the CJ: should she play tennis like all others with a net in the middle as required by the rules of the game or quit the courts?