{"id":12499,"date":"2012-11-17T17:26:54","date_gmt":"2012-11-17T22:26:54","guid":{"rendered":"http:\/\/dbsjeyaraj.com\/dbsj\/?p=12499"},"modified":"2012-11-17T17:26:54","modified_gmt":"2012-11-17T22:26:54","slug":"impeachment-of-chief-justicethe-brotherhood-of-power-vs-the-sisterhood-of-justice","status":"publish","type":"post","link":"https:\/\/dbsjeyaraj.com\/dbsj\/?p=12499","title":{"rendered":"Impeachment of Chief Justice:The Brotherhood of Power vs. the Sisterhood of Justice"},"content":{"rendered":"

by
\nRajan Philips<\/strong><\/p>\n

The impending impeachment of the country\u2019s first female Chief Justice must not be treated as a purely constitutional issue. It is fraudulent to say that impeachment is right because it is constitutional. On the contrary, it must be said that it is wrong even if it is legal. In fact, what is not right must not be legal because a constitutional provision meant for extremely exceptional situations should not be turned into an excuse for misguided prosecutorial misconduct, and in a forum that is not at best organized to conduct judicial proceedings. In the end, justice may not only appear to be undone but also be undone.<\/p>\n

<\/p>\n

The question is why, or rather, how did we come to this pass? The answer to that question clearly goes beyond the provisions of the 1978 constitution. The worst source, as well as symptom, of chronic political instability is to have the constitution become a constant part of daily politics. With a handful of exceptions, the Soulbury Constitution, and even the First Republican (1972) Constitution, were always in the background and did not loom large on the daily political landscape. Constitutional issues were matters for the Courts, and everyone accepted what the Courts said even if everyone did not agree with what the Courts said. Not so with the Second Republican (1978) constitution and its 18 Amendments in 34 years. The constitution has been everywhere, and now even the Chief Justice is going to be rid of because it is constitutional to do so.<\/p>\n

As far as I know, nothing like this happened in the first 35 years after independence, and no one even heard of constitutional provisions for removing judges except students writing tutorials. Now, everyone is writing constitutional tutorials in the newspapers. What has changed? Well, we have changed constitutions twice, in 1972 and 1978. The legal community has changed for the worse, and standards in public life have hit rock bottom. In a cynically resigned sense, we are getting what we deserve for sitting on our hands through these changes.<\/p>\n

The first woman Chief Justice may end up getting what she does not deserve at all. In one respect, this could happen only to a woman, for Shirani Bandaranayake is being forced to bear the spousal burden of a professional woman in public spotlight. Men never have to bear such a burden; the worse among them blame their wives at home when things go wrong in office. And those \u2013 lawyers, doctors, engineers, academics and, oh, yes, the mighty association of professionals, who knew better but stood on their hind legs to cheer the brotherhood of power will forever stand with their political pants down. God bless the clergymen of all hues \u2013 from the Mahanayakas to the Bishops. It is time the sisterhood spoke up for one of their own.<\/p>\n

Removing a judge: How exception has become routine<\/p>\n

The Soulbury Constitution dealt with the removal of a Supreme Court Judge in clear and simple language, stipulating that “Every Judge of the Supreme Court shall hold office during good behaviour and shall not be removed except by the Governor-General upon an address of the Senate and the House of Representatives”. The intended exceptionality was clear: the House and the Senate were not to exercise themselves together to remove a Supreme Court judge unless there was a generally felt necessity among the people, the legal community and even members of the judiciary that a particular judge was no longer capable of discharging her or his duties. The intention was not to license parliament to address the removal of a judge at its whim and for the Governor General to rubber stamp it. It is conceivable that a fair minded Governor General correctly assessing the mood outside would have vetoed an unfairly orchestrated address by the two chambers to remove a judge.<\/p>\n

The 1972 (First Republican) Constitution included an identical provision for removing judges. In contrast, the 1978 (Second Republican) Constitution went into prescriptive overdrive in stipulating the ground for removal, the requirement for bringing forward a resolution for removal, the required majority to pass it in parliament, and the parliamentary committee process for dealing with the resolution before the vote including the right of the accused judge to defend her\/himself in person or by representation. It may not have been the intention of the drafters, but the prescriptive Article 107 of the 1978 Constitution marks a qualitative departure from the approach of the two previous constitutions. The latter pre-supposed a universally sensed need inside and outside parliament to remove a judge for manifestly unexceptionable reasons. On the other hand, Article 107 provides the pretext to remove any judge so long as the required numbers of signatures and votes can be corralled in parliament. It gets worse.<\/p>\n

Nihal Jayawickrema and others have pointed out to the obvious inconsistency between Article 107 and Article 4 of the constitution dealing with the exercise of judicial power. In terms of Article 4, Parliament can only exercise judicial power indirectly through the court system except in matters involving the question of privilege of parliamentarians. The resulting anomaly is egregious. Every accused in the country is entitled to be tried through the courts except superior court judges including the Chief Justice. Those who say that impeachment is a form of accountability pretend ignorance that different words have different means and represent different purposes.<\/p>\n

The 1978 drafters in their wisdom stipulated that the motion to impeach must be signed by at least one third of the members of parliament and that the resolution for removal must be passed by more than half of them including those not present. What happens if the motion is signed by nearly half of all the members and some of the signatories are also nominated to the parliamentary select committee investigating the charges? Legal luminaries like K.N. Choksy must explain to ordinary people how this process is different from a jury trial in which the jurors include prosecutors and police officers. It is not enough to say that there are no kangaroo courts because there are no kangaroos in the country. Orwell was not thinking of animals when he wrote Animal Farm.<\/p>\n

It required someone of the calibre of the late S. Nadesan Q.C. to teach the parliamentary committee that was set up to investigate the charges against former Chief Justice Neville Samarakoon, the difference between committee proceedings and judicial hearings. On the first day of the sitting, when Nadesan was asked to start the case for his client, the great lawyer replied that he was waiting for all the members of the committee to be present. Lalith Athulathmudali, chairing the Committee, told Nadesan that he did not have to wait as there was quorum. That gave Nadesan the opening to lecture on the difference between judicial hearing and a parliamentary committee. Insofar as the committee members were going to pass judgment on his client, said Nadesan, he would insist on all the committee members being present all the time to hear all the submissions. Athulathmudali realized the howler he had walked into and promptly adjourned the first day sittings of the committee. Ultimately, the impeachment of Neville Samarakoon did not go anywhere. So much for trial by committee in 1984. It is now an established precedent for lesser legal luminaries and newspaper pundits.<\/p>\n

The 1978 Constitution went over-the-top in proclaiming in its preamble, in capital letters, the commitment to the INDEPENDENCE OF THE JUDICIARY. A.J. Wilson counted 26.5 pages and 46 articles devoted to the judiciary in a constitution of 112 pages and 172 articles. Alas, in practice, JR turned everything on its head. He started the upending by vacating all the sitting Supreme Court Judges who had been appointed by the previous government. Some were reappointed, some demoted, and the rest permanently sent home. The judges who were reappointed took their positions without demur and with no solidarity towards their erstwhile colleagues who were either demoted or fired. Colvin called it “Monkeying with the Judiciary”, even as the rest of the legal fraternity sat on their hands.<\/p>\n

JR started the practice of rewarding favourites and punishing others. He reached out to the private bar to pick his Chief Justice, Neville Samarakoon. There was nothing wrong with that so long as the selectee was qualified and enjoyed the respect of judges and lawyers. But when his appointee to the bench did not do what he thought he should do, JR moved to impeach him. Today, the incumbents have changed but the impeachment saga is set to be dramatized again. And now, as then, there is no proportionate outrage especially within the legal community against the impending impeachment.<\/p>\n

The biggest weakness in our judicial system is in regard to the appointment of superior court judges, all of whom are appointed by the President without any requirement for consultation or input from others. What worked under the Soulbury Constitution in calmer times is too inadequate in the present circumstances. The 17th Amendment would have changed the process but that was gutted and replaced by the 18th Amendment. But impeachment is not the remedy for poor selection of superior court judge. One does not sever the head of a goat to remove the pot that has got entangled on the goat\u2019s horns.<\/p>\n

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by Rajan Philips The impending impeachment of the country\u2019s first female Chief Justice must not be treated as a purely constitutional issue. It is fraudulent to say that impeachment is right because it is constitutional. On the contrary, it must be said that it is wrong even if it is legal. In fact, what is …<\/p>\n

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