Towards Constitutional deadlock

Sweeping changes are taking place on Reid Avenue, Colombo. A shiny white colonial building looks set to be the city’s next favourite shopping precinct and hangout. A twin construction is being erected adjacently. As the Urban Development Authority under the purview of the Ministry of Defence continues beautifying the capital city, large and ancient trees that in living memory have always lined the street, are being felled to make way for paved walkways and cycle lanes.

The heartbreaking sight of enormous trees stumps soon to be removed by backhoes and large leafy branches piled up on the side of the road have sparked outrage amongst naturalists and in the tree-hugger community, but none of this is likely to deter the authorities. The tree-felling occurred suddenly and without warning – much like the other business of this Government – and those shade-givers will soon be relegated to being just another victim in the country’s march towards development. Like the weeping willow trees that lined Independence Avenue. Like the shanty dwellings that were razed in Slave Island and elsewhere, turning hundreds of people out of their homes overnight.

In so many ways, the arbitrary decisions to destroy the city’s green landmarks are symptomatic of an entirely different problem. The ruling administration is enjoying the perks of absolute power, in the face of a helpless citizenry, in the face of an increasingly apathetic and impotent opposition. Just ask the beleaguered Chief Justice, Shirani Bandaranayake.

CJ before PSC

Last Friday morning (23) clad in a simple white and black sari, Chief Justice Bandaranayake left the Superior Court complex at Hulftsdorp to appear before the Parliamentary Select Committee investigating the impeachment motion against her. The iconic scenes that greeted the Chief Justice on her way out of the courts struck a chord with the general public, not only because Bandaranayake is a seemingly innocent victim in a high-handed move by the incumbent regime – but because she is also a woman.

She elicited natural sympathy and responded to it with dignity, clasping the hands of junior lawyers who were visibly emotional outside the court house on Friday. At the entrance to Parliament, the Chief Justice also rolled down her car window, giving patiently waiting photojournalists a chance to click a few shots before she proceeded to answer her summons before the committee.

But before the Chief Justice could be granted an audience, the committee had matters pending before it. The previous afternoon, on Thursday (22) Supreme Court Justices Gamini Amaratunge, J. Sripavan and Priyasath Dep had issued an order having heard submissions from petitioners regarding the constitutionality of the PSC process to hear the impeachment.

The Supreme Court bench, in a cautiously worded order referring to the cooperation that should exist between different branches of Government – in this case the Legislature and the Judiciary – requested the 11 members of the PSC to stay proceedings and postpone their investigation into the motion of impeachment against Chief Justice Bandaranayake until after the Court had provided its interpretation of Articles 107 (2) and (3) of the Constitution in respect of Articles 3 and 4 (c).

The Supreme Court order (or recommendation) was being prepared late into the evening by the Court Registrar and was eventually couriered by special messenger to each of the respondents cited in the petitions pending before the court, including the 11 members of the PSC and the Speaker of Parliament the night before the Chief Justice was to answer her summons.

Dismissing SC recommendation

So the first order of business before the PSC on Friday morning was to determine whether or not it would abide by the Supreme Court’s request. While Select Committee proceedings are secret and a matter of privilege, the fact that Chief Justice Bandaranayake appeared before the Committee for nearly two hours later that day, meant that the Committee had decided to ignore the Supreme Court’s recommendation and proceed as scheduled. It is now learnt that the Committee’s opposition members put up stiff resistance to continuing with the proceedings in light of the Court recommendation.

Other information regarding the conduct of certain members of the PSC have come to light following Friday’s proceedings but cannot be made public under the rules of Parliamentary privilege. However several online publications that remain immune to privilege restrictions have made the information public. This includes the full text of the reply drafted by the Chief Justice’s lawyers to the 14 charges contained in the impeachment motion, that range from financial misconduct to conflict of interest issues, perceptions of bias and harassment of junior judges. Interestingly, the response from the Chief Justice’s lawyers also challenges the jurisdiction of the PSC because it amounts to an exercise of judicial power, vested with the courts of law.

The Chief Justice was kept waiting for about 45 minutes past the appointed time and then requested to enter Committee Room One where the Committee was sitting, without her lawyers. When she refused, the committee allowed her to bring the head of her legal team, President’s Counsel Romesh De Silva into the room with her. Subsequently, the other five members of her legal team were permitted entry. It bears mentioning that in the historic case, Chief Justice Bandaranayake is being represented by one of the country’s best legal minds, Romesh De Silva, PC and supported by Nalin Ladduwahetty, PC, and Attorneys at Law Saliya Peiris, Riyad Ameen, Sugath Caldera, and Eraj de Silva.

The legal team is being instructed by Neelakandan and Neelakandan attorneys at law, a highly respected legal firm established 50 years ago. Senior lawyers point out that it also bears noting that in a real court of law, the error-ridden impeachment motion would be summarily dismissed. Instead, the Committee has refused the Chief Justice the six weeks time her legal team requested to fully prepare her defence against the charges mounted against her and gave her instead one week – until 30 November to file additional submissions. The PSC will convene again on 4 December.

Unceasing litigation

Meanwhile, an unceasing wave of litigation is being filed at the Court of Appeal and the Supreme Court challenging the legality of the impeachment process. Several of the petitions challenge the constitutionality of the Legislative committee set up to probe the impeachment because according to Article 4 (c) of the Constitution, judicial power is vested with the courts and according to Article 3 of the Constitution, sovereign power thus vested is inalienable or cannot be transferred and is protected by the supreme law of the land.

Adding to the list of litigants and amidst fire about its relative inaction about the efforts to remove the country’s top judge, the Bar Association of Sri Lanka on Monday (26) filed a fundamental rights petition against the impeachment. The case was filed by BASL President and MP Wijedasa Rajapakse and three others and cites that the impeachment motion against the Chief Justice violated their fundamental rights since it may have an impact on the Judiciary decisions on the Government and the entire judicial system. The petitioners have also cited the presence of bias in the Parliamentary Select Committee process that probes the 14 counts of charges against the Chief Justice.

According to informed sources, the Bar is also mulling bringing charges of contempt against members of the PSC who are also attorneys-at-law and seeking their disbarment for disrespecting the dictates of the Supreme Court. Seven out of 11 members of the PSC are attorneys.

On Friday, concurrent to PSC proceedings in Parliament the Supreme Court bench comprising Justices Amaratunga, Sripavan and Dep gave leave to proceed in three Fundamental Rights petitions. While hearing submissions, Justice Amaratunga took a firm line with Deputy Solicitor General Shavindra Fernando, asking him to read out Standing Order 78A and Article 4 (c) of the Constitution, before disagreeing with him that 78A pertained to the business of Parliament and could not be encroached upon.

The fundamental argument being made by petitioners, many of whom are being represented by some of the country’s most erudite legal practitioners, is that (a) Article 4 (c) of the Constitution vests the judicial power of the people in the courts of law, (b) that Article 3 of the Constitution implies that these powers thus vested cannot be transferred and (c) Standing Order 78A is not a law and cannot therefore seek to accrue judicial power to a legislative committee and that such empowerment violates Article 4 (c) of the Constitution. The power to examine evidence and rule on guilt and innocence is the exercise of judicial power, several lawyers for the petitioners argue.

In their written submissions to the Supreme Court, to which court a writ of prohibition filed by Chandra Jayaratne in the Court of Appeal was referred for Constitutional interpretation, lawyers for the petitioner led by K. Kanag-Iswaran PC, argue that framers of the Constitution could not have envisioned or intended for Parliament to be the accuser, judge and executioner in the process of removing a justice of the superior courts.

President’s Counsel Kanag-Iswaran in his submissions also refers to the process for the removal of a President of the republic in which the Constitution makes abundantly clear that the process for investigation, hearing evidence and pronouncement of guilt or innocence is undertaken by the Supreme Court, an established judicial body.

The trouble with ’78

Considering the Constitutional quagmire Sri Lanka finds itself in today, there is a widespread perception that the 1978 Constitution has not gone into adequate detail with regard to the process that needs to be undertaken to remove a judge of the superior courts. On the other hand, the framers of the ’78 Constitution offer more clarity on the process to impeach the President, naturally because that process would have been of particular interest to Sri Lanka’s first Executive President, J.R. Jayewardene.

For instance, 1978 calls for only an absolute majority of 113 members to vote on the impeachment of a judge, while the impeachment of the President requires a two thirds majority in the House, a difficult ask under any circumstances preceding the crossover ruling provided by former Chief Justice Sarath N. Silva. Safeguards are therefore in place to make the impeachment of a president incredibly difficult, but the Constitution does not offer the same protection for a judge of the superior courts due to a lack of clarity in the provisions pertaining to process for the removal of a judge as set out in Article 107 (2) and (3). Under the circumstances, a judge of the superior court against whom a motion of impeachment is moved, has no redress outside the Parliament mechanism set up by Standing Order 78A which was hastily adopted in 1984.

Legal experts are arguing that the PSC set up by 78A goes against all laws of natural justice, because the majority in the committee is held by members of the Government that brought the motion of impeachment against the Chief Justice. Under the circumstances, it is virtually impossible to believe that the Chief Justice will be given a fair trial, the right of every citizen of the Republic of Sri Lanka.

As Kanag-Iswaran points out in his written submission to the Supreme Court, Article 38 (2) of the Constitution provides for a judicial undertaking on the charges levelled in an impeachment motion against the President by the Supreme Court, once a resolution of impeachment is passed by two thirds of the members of the House. The President or his legal representative has the right to appear and be heard before the Supreme Court after which the Court reports its determination to Parliament. If the Supreme Court finds the president guilty of the charges levelled or incapable of functioning in the office, the resolution must be passed once again by a two thirds majority of the House.

The phrasing of the provisions relating to presidential impeachment, some lawyers argue, imply that if Supreme Court returns the determination of not-guilty, the impeachment matter ends there. The most important point, in terms of the challenges to the impeachment process against the Chief Justice is that the charges are judicially examined in the case of a presidential impeachment, by a legitimately constituted court of law.

Deadlock imminent?

Under the circumstances, in their order issued on Thursday, recommending the stay on PSC proceedings, the Supreme Court’s exercise of restraint was particularly important. Had the Justices issued a stay order on the PSC instead, it would have propelled the Judiciary and the Legislature headlong into a constitutional deadlock that resulted in the proroguing of Parliament after a similar ruling by the Highest Court in 2001 was challenged and overruled by Speaker Anura Bandaranaike.

Furthermore, noises emanating from opposition quarters make it clear that in the event that the Supreme Court attempts to stay the business of Parliament, the UNP led by its Leader Ranil Wickremesinghe will fully back the Government to assert Parliament’s supremacy over the courts. Therefore many activists for the Chief Justice’s cause, say such a move could prove devastating in the larger scheme of things.

In any case, bearing in mind the necessity to keep all organs of the state functioning harmoniously, the Bench decided to go the gentler route, of making a civilised request of legislators in the PSC who are all bound by an oath to uphold the Constitution of Sri Lanka. Government legislators are warning the Supreme Court to refrain from challenging the Parliament’s supremacy over the courts, but legal analysts point to the provisions to impeach the President as testament that the Constitution’s framers did not believe that Parliament was beyond judicial reach when it pertains to the exercise of judicial power – inquiry, examination of evidence and pronouncement of guilt, etc.

The fact that Supreme Court must deliver a guilty verdict in order for Parliament to proceed with impeaching a president, means that in judicial matters the Legislature must submit to the Judiciary, although this is not to say that either organ of the State is supreme to the other, but that the Constitution clearly vests specific powers with specific branches of the State and those powers are simply non-transferrable.

But even as legal challenges to the impeachment mount, legal experts are warning of an impending Constitutional deadlock with the Government determined to steamroll their way through this impeachment process, irrespective of how the courts of law feel about it.

In fact the regime is intent on going through with the process irrespective of the feelings of much of its House membership which is opposed to the impeachment against the Chief Justice. Several SLFP seniors are deeply perturbed by the Government’s intent to forge ahead amidst mounting domestic and international pressure that is bound to be deeply damaging to the Sri Lankan State in the long run.

On the eve of the Chief Justice’s appearance before the PSC, a senior President’s Counsel reportedly met the Chief Justice to offer her ‘all support’. The senior lawyer is the father of a Deputy Minister in the UPFA Government, also a lawyer, who is playing a role in the impeachment process on behalf of the Government.

The website Colombo Telegraph reports that this senior lawyer visited Chief Justice Bandaranayake at 11 a.m. on Thursday (22). His son is reportedly perturbed about the perception that he has a hand in the impeachment process. Interestingly, when the UNP brought a motion of impeachment against Chief Justice Sarath N. Silva, the senior lawyer in question along with three other lawyers petitioned the Supreme Court on behalf of the Chandrika Kumaratunga led People’s Alliance for a stay order against Anura Bandaranaike appointing a select committee to probe the motion. The stay order was granted by the Court but overruled by Speaker Bandaranaike.

Opposition to impeachment

Forces against the impeachment continue to gather. Yesterday the Chief Prelates of the three main Buddhist monastic orders issued a second letter to President Mahinda Rajapaksa urging him to stay the impeachment process. The Chief Prelates issued a similar missive to the President several weeks ago which has gone largely ignored, other than for a cursory response to the chief monks, saying “attention had been drawn to the contents of their letter.”

“The majority of the people think that the impeachment motion against the Chief Justice will lead to disenchantment about all branches of the Judiciary. Therefore the Government should think patiently about the ill-effect of the prevailing attempt of the Legislature, Executive and the Judiciary to go above the other and take steps to safeguard the independence of the Judiciary and solidify the feelings of justice in the minds of the people. By the display of just behaviour of the Government it will definitely generate a feeling of satisfaction in the minds of the people. It is possible to get humans to respect law and traditions by acting according to human ethics without scorn. Therefore to avoid the breakdown in law and deterioration of society as a result of the impeachment motion we kindly request that the impeachment motion be withdrawn, taking into consideration the recent recommendation of the Supreme Court. This will be beneficial to the country,” the prelates said in their letter to the President.

Former UNP Deputy Leader and MP Karu Jayasuriya is believed to have been instrumental in spurring the prelates into action once more, even as the impeachment saga intensifies. Jayasuriya enjoys significant support from the country’s clergy, having maintained a pluralist political outlook whilst maintaining his ties to Buddhism according to which philosophy the senior politician says he tries to live his life.

Steamrolling

Having swept to power on the back of support by the Sinhala Buddhist majority and commanding the alliance of right wingers within its coalition, one would think that the appeals from the monks would sway the Rajapaksa Administration somewhat. But when it comes to this impeachment process, the Government prefers to be done with it as soon as possible and no matter how many obstacles stand in their way, whether they don saffron robes or not.

Government insiders and Opposition Parliamentarians claim that the verdict on the motion of impeachment is already being drafted by senior Government Ministers and former AGs based on the Chief Justice’s reply to the charges and the administration is intent on concluding PSC proceedings by 8 December if possible.

In every respect however, even the ruling regime realises it may have bitten off more than it can chew. According to senior UPFA sources, the Government was certain that the pressure brought to bear upon her by the impeachment motion would force Chief Justice Bandaranayake to step down, clearing the way for the appointment of a CJ more to the regime’s taste. Her decision to fight the impeachment and the frivolity of the charges contained in the tabled resolution however, have posed a conundrum for the regime which cannot backtrack on its bid to impeach Bandaranayake, but also faces serious issues of de-legitimacy if the flawed process goes through.

Even if Chief Justice Bandaranayake loses this battle, and that is the likely outcome, she will go down in history as being a person who stood up to the Executive and refused to go out without a fight. Either way, Friday’s iconic scenes as the Chief Justice made her way to Parliament to face her accusers proved that the net result of the Government’s move to remove the country’s top judge was something they never wanted. It has turned Dr. Shirani Bandaranayake, Sri Lanka’s first female Chief Justice, into an unlikely heroine.