Impeachment: Yes. Arbitrary impeachment: No.

I advise governments on infrastructure regulation. In the interest of effective regulation that is shielded from government interference and manipulation by regulated companies, especially those that are still controlled by government, it is commonplace to establish statutory safeguards to ensure regulatory independence.

In the process, some legislative designers weaken the procedures for ensuring accountability by the regulatory agencies. For example, it was found in 1999 that it was not possible to hold accountable the seven full time members of the Telecom Regulatory Authority of India. The law had to be changed.

In the drafting of the Public Utilities Commission of Sri Lanka Act of 2002, it was suggested that provisions for removal of members of the PUCSL not be included. I argued that provisions for removal were included because independence must be balanced with accountability. My argument won. The provisions mirrored those applicable to Justices of the Supreme Court.

I state these facts to support my claim that no one, not the President, not the Speaker of Parliament, not the judges of the superior courts, should be insulated from accountability. Impeachment is the procedure for holding both the President and the judges of the superior courts accountable. Impeachment is a procedure that is needed in a law-governed society.

However, it is tragic when an instrument essential for good governance is used in an arbitrary manner for purposes inimical to good governance.

People talk about the effort to impeach the first Chief Justice under the 1978 Constitution, Justice Neville Samarakoon. But what is more relevant is a discussion of the non-impeachment of former Chief Justice Sarath Nanda Silva.

In multiple articles supported by evidence I have documented the malfeasance of the former Chief Justice. This is no occasion to reiterate the case against him. One example will suffice:

As I documented in an article published in the Financial Times of 27 November 2008 (while he was still Chief Justice), a bench headed by the then Chief Justice Silva decided on 21 July 2008 (CS/FR 209/2007) a matter that only came up for argument on 27 November 2008 before a different bench. No mistakes; no typos. Then Chief Justice Silva gave a decision four months prior to the case coming up for hearing.

On two occasions, President Kumaratunga intervened to protect the then Chief Justice from impeachment. The current President and the ruling coalition that he heads took no action to impeach Sarath Silva even when he was engaging in the most egregious violations of the law, including the abuse of judicial power described above. The yet not fully disclosed charges against the current Chief Justice pale against Sarath Silva’s abuses of power.

Yet, not only was he allowed to retire gracefully after doing untold damage to the Sri Lankan polity and economy, he is still greeted as a friend by the President. This proves that the present move to impeach the Chief Justice is arbitrary. Members of the Government coalition who care for Sri Lanka’s future as a law-governed country must cast their votes against it.