The decision of the parliamentary select committee now pondering the impeachment resolution against Chief Justice Shirani Bandaranayake that it will not await the Supreme Court determination on the legality of the process has now added a further complication to an already messy situation. There is no doubt in anybody’s mind that the decision to impeach the CJ was that of the president and none other. The decision to get on with the job regardless of ongoing court processes and others in the pipeline too would have obviously had his blessings.
Given the powers that the 1978 constitution foisted on Sri Lanka by the five sixths majority the electors gave Mr. J.R. Jayewardene, who deemed himself as the country’s first executive president, governments under the subsequent system are as never before beholden to the presidency from which flows all power and most perks which politicians from both sides of the House are abundantly blessed with. The result is that the lines of the cherished separation of powers which is a bulwark of democracy have been blurred.
We advisedly said that the 1978 constitution “deemed’’ JRJ the first president of the Democratic Socialist Republic of Sri Lanka for the reason that the 1977 landslide elected him prime minister under the then constitution. He was not elected president although he deemed himself as such, though serving his second term as elected president (often misrepresented as re-elected) having defeated Mr. Hector Kobbekaduwa and numerous other contenders comfortably. An emasculated opposition, with the Sri Lanka Freedom Party which has alternated in power in power with the UNP, was not even able to win the position of leader of the opposition in parliament in 1977 with that office going to Mr. Appapillai Amirthalingam of the TULF. His party was able to win more seats than the SLFP although it got nowhere near as many votes. Those were distortions possible under the previous Westminster system of first-past-the-post election where the winner takes all.
The weaknesses of the 1978 constitution are being continuously exposed with the passage of years. The impeachment proceedings have revealed that superior court judges, serving both the Supreme Court and the Court of Appeal, do not have any remedy for loss of employment that the rest of the citizen of the country have through various judicial tribunals. A resolution signed by a majority of Members of Parliament calling for the impeachment of a superior court judge is subject to `trial by parliament’ rather than by the judiciary through a select committee process. A determination of guilt by that committee, subject to a vote by parliament and a subsequent address to the president, is sufficient to send a judge home. The affected judge has no redress in the form of an appeal to a court or other judicial tribunal unlike an ordinary citizen who has been sacked who has recourse to a labour tribunal and thereafter higher courts if aggrieved by the determination of that body. Even for the impeachment of a president, there must first be a determination by the Supreme Court before parliament votes on that matter.
It is now being urged that a parliamentary select committee is set up by the rules of parliament rather than by any legal enactment. While there is a debate on who is supreme, the legislature or the judiciary, it is necessary to point out that the Sovereignty is vested in the people with legislative and judicial functions delegated to parliament and the courts. Thus the people and not parliament or the courts are supreme. Given that the various challenges mounted against the ongoing impeachment process continue to be heard by the Supreme Court, with leave granted to canvass further issues, what happens if the select committee makes a determination before the various issues that have already been raised and those that will be subsequently canvassed are settled? If the decision is to impeach, will the process reach its final conclusion with the removal of the CJ so that a fait accompli is presented? Does the select committee abandon whatever has been decided if the courts hold against the process? This would demonstrate, as President Mahinda Rajapaksa recently professed, “respect for the judiciary’’; or does an already unpleasant situation become more unpleasant? Unless fortuitous circumstances intervene, time will tell.
In the Neville Samarakoon matter, the proceedings of the select committee continued for over a year with parliament granting the necessary extensions. By then tempers had cooled with the government majority holding that although the statements made by the then CJ at the Sinnathurai Commercial Tutory were not becoming of the high office he held, it did not amount to proven misbehaviour. The opposition minority (Messrs. Anura Bandaranaike, Sarath Muttetuwegama and Dinesh Gunawardene) held there no offence had been committed. As the CJ had reached his retirement age, he duly sent in his papers and immigrated to Australia. Unlike at least one of his successors many years later, relishing making controversial statements and adopting political stances post-retirement, he forever held his peace.
Another aspect of this question that deserves comment is that unlike in a judicial proceeding where almost everything happens in public – a judge may exceptionally for good reason hold consultations in chambers – the proceedings of the select committee are in camera. While the charges against the CJ have been published (and those more competent than us in these matters hold that the drafting has been shoddy) and the public is aware of the accusations made, they are generally unaware at the present moment of what the accused has said her defence beyond the fact that she has rejected the charges of financial impropriety. It is not clear if her answers to the charges preferred against her that must be in by Nov. 30 will or will not enter the public domain until and unless the select committee reaches a verdict of guilt.
The proceedings against CJ Samarakoon were published although there was no finding of guilt. The speaker has cautioned the media about publishing proceedings of the select committee but we are not aware if members of the committee or lawyers appearing before it have been similarly cautioned about revealing the content of proceedings. The first day saw photographers excluded from the precincts of parliament but photo opportunities were provided when the CJ and her lawyers drove in for proceedings. Several microphones were thrust in through the open window of her car but Ms. Bandaranayake, who smiled for the cameras, pointedly kept her mouth shut and there were no sound bytes. How this matter will continue and conclude is anybody’s guess but it is very clear that a global audience is watching closely although no international observers have been permitted to be present up to now. The Sri Lankan people, whether supporters or opponents of the government, will of course want justice done and be seen to be done.