| by Kishali Pinto Jayawardena
( January 6, 2013, Colombo, Sri Lanka Guardian) Predictably, Government propaganda hitmen wasted little time in rushing to condemn the Supreme Court’s most extraordinary and exceptional Determination this week that the parliamentary impeachment of a superior court judge has to be determined by law and not by Standing Orders. The level to which this Government has deteriorated was amply seen by the fact that while party seniors preferred to remain quiet, with one or two even cautioning that the time has come to take a step back, the stage was taken over by the distasteful antics of newly come propagandists dancing like hysterical puppets on a master’s string, in clear contempt of court.
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Would Sri Lanka become a ‘non-law’ country?
Let us examine what this Determination, forwarded to the Court of Appeal on a reference made to the Supreme Court, was all about. Fundamentally, the Bench comprising Justices Amaratunga, Dep and Sripavan affirmed the Rule of Law as the basic structure of the Constitution and relying on established precedent, warned that the power of impeachment of a superior court judge cannot be used by a Government ‘to tame and vanquish’ the judiciary.
Their ruling was underlined by the serious consequences which arise from a judge being thrown arbitrarily out of office by politicians. In obedience to the constitutional scheme and linking the concept of legal power to the process of impeachment by applying definitive rules of constitutional interpretation, Standing Orders were declared to be limited to regulating the orderly conduct and affairs of Parliament. Standing Order 78A which currently regulates the impeachment process was disallowed as not being ‘law.’ The Court stated that legislative power to impeach should conform to indispensable checks and balances mandated by the Constitution itself.
Whether one may agree or disagree with the content of this Determination, it is a decision of the highest court of the land. It stands as such until reversed by a Divisional Bench or a Full Bench of the Supreme Court itself. Thus, to go ahead with the impugned impeachment would mean a direct flouting of the Constitution. The very basis of the law in this country would be shaken to its foundations. Sri Lanka would henceforth be a country where ‘non-law’ prevails. The consequential impact on every sphere of government, including the investment climate, would be ruinous.
Several vital components of the ruling
The crux of this Determination could be broken down into several vital components of judicial reasoning, all flowing logically from each other. Thus, the investigation contemplated by Article 107(3) of the Constitution into the alleged misbehavour or incapacity of a judge as charged and the finding that the charges are proved, were pointed out to be essential steps to the ultimate removal of such judge by the President through an address of Parliament. The impeachment of a judge of the superior courts before Parliament affects the constitutional right to hold judicial office. Therefore such a finding amounts to the exercise of legal power and as such, can only be utilized by a court, tribunal or other body which has such a power conferred upon it by law.
Relying on the explicit inclusion of the word ‘law’ in Article 107(3), Parliament was enjoined to establish by law, a body competent to conduct an investigation and hand down ‘a legally valid finding.’ The law should reflect all aspects of the right to natural justice including the right to cross-examine witnesses, to call witness and adduce evidence, both oral and documentary as well as matters relating to proof being matters of law including the burden of proof, the mode of proof and the degree of proof. This was imperative in order to avoid any doubt about the ultimate determination of guilt.
Distinguishing between legal power and judicial power
Wisely meanwhile, the judges declined to rule on submissions made before it that a Select Committee of Parliament, in investigating the allegations contained in a resolution of impeachment, ‘exercises judicial power and as such it is contrary to Article 4 (c) of the Constitution and that Standing Order 78A is contrary to the Constitution, especially to Articles 12(1), 13(5) and 14(l)(g).’
The Bench determined that careful consideration of the question referred to the Supreme Court by the Court of Appeal made it clear that ‘it was not necessary’ to examine those submissions in answering the question in issue. The distinction drawn between legal power (declared by the Supreme Court to be exercised when an impeachment process gets underway in the House) and judicial power (declared by the Supreme Court as not being necessary to decide in this instant reference) would undoubtedly be of particular jurisprudential interest both locally and internationally.
The Government’s direct responsibility in provoking this ruling
Thus the law was declared and laid down by the highest court in the land. Now, let us come to politics and this Government’s direct and monumentally foolish actions in provoking a stern judicial response leading to a constitutional crisis of such high magnitude.
Contrast this deliberately written order of the Supreme Court with the crass stupidity of government members of parliament in declaring even within the last week that there was no burden on a PSC investigating the misbehavior or incapacity of a judge, to ‘prove’ the allegations against such an individual as this was not a court of law. Amusingly, we were treated to the sorry spectacle of politicians, parliamentarians and parliamentary officials taking it upon themselves to interpret the Constitution in blissful ignorance of the fact that this is the ‘sole and exclusive jurisdiction’ (Article 125 (1) of the Constitution) of the Supreme Court let alone brushing aside the fact that Article 107 specifically refers to ‘proved’ misbehavior or incapacity.
From some government members vulgarly insulting the Chief Justice as borne out by her statements to the indecent haste in which the impeachment was rushed through, it seemed that this Government was determined to say and do the things most calculated to show its boorishness and contempt for the law. It has now got the return in good measure. A judicial reprimand was therefore well in order.
Abandoning ourselves to the wolves outside our gates
This week’s opinion entered into through a spirit of ‘detached objective inquiry’ as the Court reminded, effectively reverses an earlier judicial timorousness in responding to abuse of executive power. Clearly this is a Court now made critically aware of the exact danger in which it finds itself from an executive excessively drunk with political power.
Importantly, the ruling must not be seen as directed exclusively to meet the injustice meted out to the incumbent Chief Justice. Certainly her trial by fire before a Parliamentary Select Committee (PSC) consisting only of government representatives was the proximate cause for the ruling. However, the Determination goes far beyond individual interests and embodies salutary safeguards in relation to the security of tenure of judges and the independent functioning of courts.
If we are to brush aside this injunction, we are abandoning ourselves to the wolves that howl outside our gates. The responsibility in that regard would be ours and not that of the politicians (government and opposition) who have ruined this county for far too long. Let us be very clear on that.