By

Udaya Gammmanpila

Pompeia was the second wife of Julius Caesar. Caesar divorced her because of rumours of her opprobrious behaviour. Roman guards caught a youth disguised as a woman inside a religious function restricted to women organized by Pompeia. According to the rumour, Pompeia managed to take him inside since the youth was her lover. At the trial, Caesar said he knew nothing about his wife’s rumoured adultery but asserted that he divorced her because his wife ‘ought not even be under suspicion’. In other words, Caesar’s wife must be above suspicion. The Chief Justice must be above suspicion like Caesar’s wife.

Justice Dr. Shirani Bandaranayake presently holds this Lily-white post in Sri Lanka. The Chief Justice is the 4th in the List of Protocol of Precedence. Only the President, Prime Minister and Speaker are above her in the list. In other words, the Chief Justice is the highest post a non-politician can aspire to achieve. She, with her humble background, broke social barriers to be the Chief Justice, which was restricted to the elite. She is not only the first lady Chief Justice of Sri Lanka but also the first lady judge of the Supreme Court. In fact, she is the first lady Chief Justice in South Asia and among the very few lady Chief Justices in the world. Because of the above reasons, Justice Bandaranayake was a role model for young girls who believe that the sky is the limit.

I have a personal attachment to Justice Bandaranayake. Both of us studied at Ginigathena Primary College for three years, of course at different times. Both of us had to attend that school since our fathers were principals of Ginigathena Central College. Both fathers subsequently became education administrative officers. My father always respectfully recalls Vincent Bandaranayake as a senior colleague in his field. In this backdrop, I was saddened to hear the story of the government’s attempt to impeach her.

If the Chief Justice (CJ) is impeached without a strong basis, it will amount to interference with the independence of the judiciary. This will directly make an adverse impact on the international campaign against Sri Lanka. When several countries proposed to establish an international mechanism to probe alleged war crime charges, Sri Lanka was strongly of the view that there is an independent domestic mechanism. In fact, our judiciary had the capacity to try and punish military officers in cases such as the murder of Premawathie Manamperi, the murder of Krishanthi Kumaraswamy, the Hokandara mass grave and Chemmani mass grave. Interference with the independence of the judiciary would justify the establishment of an international mechanism to probe alleged war crimes. However, I changed my mind after perusing the charges against the CJ.

Unprecedented in Sri Lanka

14 charges levelled against the CJ can broadly be categorized into 4 groups. They are the abuse of power vested with her as the CJ and the Chairperson of the Judicial Service Commission (JSC), dishonesty and intentional violation of the Constitution. Those charges are serious enough to warrant an investigation. In comparison with these charges, the charges which invoked the impeachment process in the past, are trivial and negligible. Chief Justice Neville Samarakoon was impeached for a speech he made which contained several phrases which could be considered as anti-government. Chief Justice Sarath Silva was impeached for alleged opprobrious behaviour. The seriousness of the charges against the present CJ is unprecedented in Sri Lanka and probably in the world.

Some question the morality of the impeachment since parliamentarians, who brought the impeachment, are also corrupt. It is true that there are corrupt politicians. When a politician is corrupt, people can complain against him to the judiciary. In fact, the junior most judicial officer, magistrate, can summon and punish the Prime Minister although the Prime Minister ranks second in the Protocol List of Precedence. If the junior judicial officers are also corrupt, people can complain against them to the CJ. However, if the CJ is also corrupt, people will have no person to complain to. In that kind of scenario, people would resort to extra judicial measures taking the law into their own hands causing chaos in society. Hence, the judges should be purer than politicians. In turn, the CJ should be purer than judges and be white as a lily.

In the light of the above, the suppression of charges against a CJ may result in irreparable damages to social harmony. Nobody should jump to conclusions that the CJ is guilty as charged. It should be decided after the trial. Nevertheless, it is obvious that the charges warrant an investigation. At the end of the investigation, the CJ can protect her reputation, if she is proven innocent. On the other hand, the Parliament can protect the dignity of the post of the CJ by removing her, if she is found guilty. An investigation is inevitable since both ends are equally important.

An opposition Member of Parliament, who is a lawyer by profession, had questioned the capacity and authority of the Parliament to try the CJ. Unfortunately, he had amply displayed his ignorance about both law and parliamentary tradition. Article 4 of our Constitution has vested the judicial powers of the people with the Parliament. Parliament can exercise its judicial power directly or through the Courts established by the Parliament. Hence, disciplinary control of the senior judges is also vested with the Parliament. It is not a unique feature exclusive to Sri Lanka. This is the practice in the entire world.

Usually, the Parliament appoints a special committee to investigate the charges and to report back the findings. The findings will be debated in the Parliament to decide whether the accused judge is guilty. If the Parliament resolves to remove the judge, it will be a responsibility of the Executive to implement the resolution.

Alternative mechanisms

Several countries use alternative mechanisms to appointment of a special committee of the Parliament. India appoints an inquiry committee which consists of three members of which two are judges. Only two judges have been impeached in the post-independent history of India. Hence, involvement of judges in the inquiring process has attracted criticism from experts and laymen alike.

Let us now examine the rationale for granting impeachment powers to Parliament. Separation of powers is the fundamental principle of democratic governance. Accordingly, governmental powers of the people have been vested with three separate institutes, namely, the Executive (President), Legislature (Parliament) and the Judiciary (Court System). All these institutions are manned by ordinary people who are subject to corruption and abuse of power. Hence, there are disciplinary authorities for all these institutes.

If the President’s conduct is not acceptable to the people, he can be removed at the next presidential election by the people. If the President’s behaviour is intolerable, he can be removed by the Parliament with the assistance of the Supreme Court by way of impeaching him. Similarly, parliamentarians can be punished for their misconduct by the people at the parliamentary elections. If the people are impatient to wait till the election, the President can send parliamentarians back to the people by dissolving the Parliament. Further, the Judiciary can determine the constitutionality of the acts to be passed by the Parliament.

As explained above, People, Judiciary and Executive collectively supervise the Parliament. Similarly, People, Legislature and Judiciary collectively supervise the President. However, people never get the opportunity to review the conduct of judges. Hence, Executive and Legislature should be empowered to rigorously supervise the conduct of judiciary. That is why the impeachment process has been introduced in the Constitution.

Parliament’s capacity to try the CJ is obvious. The people have vested their judicial powers with the Parliament. It formulates all laws of the country including the Constitution. The judiciary is a creation of the Parliament. If the parliamentarians have the capacity to formulate laws, they should be able to try judges as well.COURTESY:CEYLON TODAY