Kishali Pinto Jayawardene
The Government’s brushing aside of the Supreme Court’s entirely appropriate order this week requesting Parliament to desist from continuing with the impeachment of the Chief Justice until a final determination was handed down in petitions being heard filed before it, was arrogant but unsurprising.
The Bench spoke to the comity that must exist between the judiciary and the legislature for the greater good of the country. It cautioned that this would be prudent as well as ‘essential for the safeguarding of the rule of law and the interest of all persons concerned.’
But its words were in vain and at the close of the week, Sri Lanka’s Chief Justice was compelled to appear in person before the Parliamentary Select Committee (PSC) in the formal commencement of a politically driven impeachment process.
Neither purse nor sword but only judgment
American founding father and political philosopher Alexander Hamilton’s potent and powerful warning that ‘the judiciary has no influence over either the sword or the purse, it may truly be said to have neither force nor will but merely judgment’ ((Federalist Papers, No 78) is therefore singularly apt for the dilemma in which Sri Lanka finds itself today.
The executive holds the sword of the community while the legislature commands the purse. In contrast, the judiciary is dependent solely on its judgment and integrity. If the integrity of the judicial branch of the State is destroyed through executive action or its own complicity, then all is lost. The executive is free to trample as it wishes on the judiciary, the law is then unseated and justice is thrown proverbially to the wolves.
In the present impeachment of Sri Lanka’s Chief Justice, it does not require remarkable wisdom to determine as to who will be the winner and who the loser in a head-on clash. This is possibly why Thursday’s order by the Supreme Court wisely sought to avert an open confrontation with the legislature at the outset itself.
Commendable restraint was shown, transcending a most particular anger that must naturally be felt by judicial officers when the head of the judiciary is impeached in this way. Now that this request has been abruptly brushed aside by the Government, the consequential judicial response remains suspenseful though it is not difficult to imagine a plea of futility being put forward by the Attorney General in later hearings.
Significant differences with recent precedent
Notwithstanding, this week’s measured ruling contrasts sharply with an earlier order of the Court delivered in 2001 when an impeachment motion lodged by the opposition was due to be taken up by a Select Committee against a former Chief Justice, Sarath Silva. In that 2001 order, interim relief was granted staying the appointment of a Select Committee with the judges opining that a stay was warranted due to a purported exercise of judicial power by the legislature.
This view was peremptorily dismissed by the late Anura Bandaranaike, the then Speaker, who reasoned in copious detail that the judiciary had no business interfering with the constitutionally mandated parliamentary process of judicial impeachments. Fortuitously, (for that former Chief Justice), Parliament was thereafter dissolved by former President Chandrika Kumaratunga, preventing any further action.
However, there were significant differences between that impeachment motion and the current unseemly fracas. Charges against that former Chief Justice relating to abuse of judicial power had been ventilated long before 2001, causing a veritable public scandal as it were. That motion for impeachment was brought by the opposition and not by the government. That Presidency’s entire effort was, in fact, to prevent the impeachment being brought against that former Chief Justice for reasons that are well in the public domain.
Comity must exist between the judiciary and executive
In contrast, what we have now is a hastily drafted impeachment motion, replete with mistakes but driven by the formidable might of this government with accompanying full scale abuse of the judiciary by the state media.
A greater contrast therefore cannot be evidenced. Rather than the executive safeguarding a Chief Justice against whom allegations of judicial misconduct had been leveled, what drives this present process is executive pique if not outright anger at a series of adverse Determinations by the Supreme Court on key Bills.
The move is against the entirety of the Court for a Determination is not an opinion of an individual judge but a binding decision of the entire Court. The Court’s response this Thursday illustrates its recognition of the danger that it faces collectively. Indeed, given the peculiar context in which its intervention was sought, this was a far more appropriate ruling than the stay order handed down by a previous Court in 2001.
Whatever this may be, this judicial stand must be unequivocally supported by the Bar and by the citizenry. The Bar has bestirred itself recently in passing a resolution requesting that the President reconsider the impeachment of the Chief Justice. Contempt of court applications may be filed against an abusive state media. But its leaders need to question themselves in good conscience as to whether merely passing resolutions and engaging in private meetings with politicians and parliamentary officials fulfils the heavy responsibility vested in them given the extraordinary threats that face the country’s justice institutions?
An enchanted complicity in the executive’s attacks on the judiciary
Half-hearted responses to the instant crisis only expose the credibility of the leadership of the Bar. Surely have we not learnt enough from the past? After all, the very omissions and commissions of the Bar were crucial factors that led to this crisis in the first place.
As appreciated by the inveterate satirists among us, some of these legal worthies jostling to prove their bona fides against the impeachment were themselves thoroughly implicated in the ravages of justice that occurred during the previous decade, after which, it became unarguably much easier for any politician to call up a judge and exert inappropriate pressure.
We also saw lawyers vehemently arguing not so long ago in defence of presidential immunity in order to shield the President and his minions from the reach of the law. It is only now that these worthies appear to have woken up to realities. One is tempted to ask whether they were cast under a spell, like the enchantment of old which helplessly bound Rapunzel, into conscienceless complicity with the executive all this while.
Furthermore, seniors of the Bar accepted unconstitutional appointments by the President in defiance of the 17th Amendment and steadfastly looked the other way when the 18th Amendment was passed. The grave historical responsibility of the Bar in this regard can only be mitigated by unconditionally courageous actions now. That much must be emphasized.
This Presidency should take heed
This impeachment is destined to leave us with a hollow shell where the authority of the law once proudly possessed centre stage. Black coated members of the legal fraternity will prance before courts in a bitter mockery of the legal process.
This is what is desired perhaps by those in the seats of authority. But the best laid plans of mice, men and authoritarian political leaders drunk with insatiable power may still go awry. The steady gathering of public empathy for a Court under siege is now noticeably under way. Undoubtedly this Presidency should take heed of bitterly dissenting voices, at times coming from the very support base that brought this administration to power.
To ignore these voices would be to imperil its ultimate political survival. Make no mistake about that.