Kishali Pinto Jayawardene
In the wake of the untimely demise of Justice S. Sriskandarajah, President of Sri Lanka’s Court of Appeal this week, it may be opportune to look at the state of the Sri Lankan judiciary one year after the 2013 impeachment of Sri Lanka 43rd Chief Justice Shirani Bandaranayake. The late Justice Sriskandarajah had presided over the Bench which quashed the findings of a Parliamentary Select Committee (PSC) on the impeachment. And has been observed in the wake of his death by others, this was a judge who had been successively overlooked by the President for promotion. At least in public perception, this bypassing was not entirely delinked from the part that the late judge played in that critical judicial process.
Formidably simple judicial reasoning
As may be recalled, the PSC operated without proper procedure. The Chief Justice was denied the right to cross examine adverse witnesses, was insulted and not given adequate time to answer the several allegations leveled against her.
Responding to the issue referred to it by the Court of Appeal, the Supreme Court’s reasoning was simple. First, the basis of the Constitution is the supremacy of the Rule of Law as opposed to arbitrariness. Second, the power of removal of a Superior Court judge conferred on the President upon an address of Parliament is a check provided by the Constitution to sustain the balance of power between the three Organs of Government. This power is not to be exercised to resolve conflicts so that one may ‘tame and vanquish the other.’ Rather, it exists as a check to be exercised, where necessary, in trust for the people.
Third, the constitution of a Select Committee under Standing Order 78(A)(2) was not proper as it did not provide for matters relating to proof, mode, burden and the degree of proof in relation to an impeachment process and was therefore unconstitutional. Those aspects needed to be provided by statute to avoid any uncertainty as to the proof of the alleged misbehaviour. Room should not be left for the body conducting the investigation to subjectively decide on these issues.
The shameful reducing of the judiciary
Faced with this ruling of the Supreme Court, the appellate court had little option but to issue a writ of certiorari quashing the findings of the PSC. The alternative would have been unthinkable. Yet for this act of judicial necessity, threats were issued against the judges and members of their families. This was the shameful state that the Sri Lankan judiciary was reduced to.
Indeed, what is often missed in these discussions is that the Appeal Court’s decision was in actual fact, not a ‘crusading’ judgment in any sense of the word. Even those professionally closest to him would probably hesitate to categorise the late Justice Skandarajah as a judicial crusader.
On the contrary, his marked reluctance to embark on judicial expansion, (or as some would term it, adventurism), in writ law against impugned government actions often resulted in dark mutterings on the part of counsel when writ applications were refused. Among his rulings before he ascended the Court of Appeal bench was a rare High Court conviction of a state officer accused of torture under the 1994 Anti-Torture Act. In the appeal court, he also delivered a judgment in which the Court refused to intervene in instances where the indictment of a police officer for torture and the consequent interdiction resulted in that officer’s promotional prospects being affected.
Barbarians inside the sanctorum
The point is that these were not ‘adventurist’ judgments Even though impeccably fair in his treatment of counsel appearing before him, this was essentially a conservatively inclined judge who was however, governed by a strict sense of judicial propriety.
To a judicial officer of that bent, the nonsensical exercise of a Select Committee acting on pure political prejudice against a sitting head of the judiciary, would have been anathema. But in the background of the impeachment which saw bare-bodied ruffians dancing outside the Chief Justice’s residence when Parliament passed the impeachment motion, (as technically flawed as that too was), such niceties were no longer relevant. The barbarians were not outside the gates, they were inside the sanctum sanctorum and Sri Lanka was pushed outside the pale in the eyes of the civilized world.
There was, of course, a historical context to these events which are best dealt with in spaces other than a newspaper column. Let history alone, if the legal community had bestirred itself to uphold the integrity of the Bench even a decade ago when the late Justice Mark Fernando retired prematurely from the Supreme Court stating that he could no longer serve honourably in that position, the calamity which visited the Court in 2013 may have been prevented. Elsewhere in South Asia, the Pakistani Bar took to the streets against executive interference in recognition of the fact that it is the Bench and the Bar that would be devalued in the final result and ultimately forced a powerful military backed President out of office.
The judiciary as the first victim
Sri Lanka’s experiences have unfortunately been far different. Displacing the 17th Amendment which stipulated procedures for the fair promotions of judicial officers, the 18th Amendment gave back unfettered powers to the President in that regard. A principled stand was not taken against this constitutional amendment by the Bench and the Bar at that time. In fact, judges and lawyers jostled to accept appointments even when the 17th Amendment was in force and was being ignored by the politicians.
A year on, a Chief Justice is dragged to the bribery courts and promotions are held over the heads of honourable judges like tempting carrots. Even now, this Government fiercely opposes any move to change the procedure of impeachment of superior court judges to conform to the recommendations of the Supreme Court. In the same breath, it shouts to the heavens to witness its commitment to the law and to the Constitution. What hypocrisy is this?