Conflict “unaccountable and unnecessary”

In a letter to President Rajapaksa, Friday Forum stresses on the unforeseen hazards of the impeachment move

• Following is the letter written by Friday Forum to President Mahinda Rajapaksa over the crisis in the country with regard to the move to impeach Chief Justice Shirani Bandaranayake

The Friday Forum has previously drawn to your attention our concern that, from the inception, the impeachment proceedings against the Chief Justice did not conform to recognised norms of natural justice and due process. Dissatisfaction with these proceedings contributed to public protests and litigation in the courts.

The Supreme Court has now held that the Parliamentary Select Committee procedure under Standing Order 78A is bad in law, and does not conform to Article 107(3) of the Constitution. The Court of Appeal has therefore issued a writ quashing the findings of the Select Committee and holding that the Select Committee proceedings are void. It is reported that Parliament, on the other hand, has decided to proceed with the debate on the Select Committee Report.

We urge that your Excellency, as Head of State, recognise and act according to the accepted norm that court decisions represent the law of the land irrespective of views one may hold as to their content. They are binding unless constitutionally valid new legislation is enacted, or the decisions are overturned in appeal or in revision proceedings. We urge you once again, most strongly, not to act on any address of Parliament that seeks to nullify court decisions.

The legislative power vested in the elected Parliament of our country by the people, whose sovereignty is inalienable, is framed within the law of the land of which the Constitution is the supreme expression. The interpretation of that Constitution is vested in the Supreme Court and the Supreme Court alone. A conflict between Parliament and the Judiciary and a disregard of court decisions is not in the national interest. It gives a powerful message to the nation that the rule of law can be undermined and rejected by Government. The potential consequences are both dangerous and disastrous.

The path that the Government has apparently decided to take, notwithstanding the clear judgements of the Supreme Court and the Court of Appeal, is fraught with grave consequences, all of which may not be foreseen now. If the Chief Justice is unconstitutionally removed the legality of the appointment of a successor will be placed in doubt.

Purported judgements delivered by a Bench of which such person is a member may be of no effect in law. The Chief Justice is also, by virtue of office, the Chairman of the Judicial Service Commission. Appointments; promotions, transfers and disciplinary orders made by an illegally constituted Judicial Service Commission could be questioned and purported judgments delivered by Judges so appointed, promoted or transferred may also be subject to challenge.

Questions of the legality of such “judgements” could arise even years later causing confusion regarding the personal and property rights of individuals, commercial contracts, dealings between citizens and public authorities, internal and external trade, and a host of other social and economic relations.

Quite apart from its illegality, such removal and purported appointment would have the grave repercussion of shaking public confidence in not merely the institution of the Judiciary but in all branches of Government.

If the Government is dissatisfied with the court decisions on the impeachment proceedings, it has its legal remedy. The Attorney General can proceed in appeal, and/or a revision of the Supreme Court order by a Full Bench of the Court in which the Chief Justice would naturally not participate.

Nor is the Government precluded from proceeding afresh with legal and constitutional measures to examine the allegations against and if found proved remove the Chief Justice. With these options open to it, we find it incomprehensible that a hazardous path of confrontation is even contemplated.

We most strongly urge you to give the necessary leadership in a statesman-like manner to resolve the conflict between the Legislature and the Judiciary that has so unaccountably and unnecessarily emerged at this crucial moment in our country’s history.

Signed by Jayantha Dhanapala, Professor Savitri Goonesekere and Dr. Jayampathy Wickramaratne on behalf of Friday Forum, the Group of Concerned Citizens.