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AHRC-FAT-037-2012
November 5, 2012
An article from the Colombo Telegraph forwarded by the Asian Human Rights Commission

Sri Lanka: Judging A Judge -- Politics And Pitfalls In The Process
Saliya Pieris*
For the third time in 30 years, Members of Parliament have launched impeachment proceedings against a Chief Justice of Sri Lanka setting the stage for a crucial struggle for the preservation of independence of the judiciary and the rule of law.

In many democratic countries impeachment of a judge is among the rarest of events reserved for the worst cases of misconduct or incapacity. Yet the fact that the process has been used thrice during the existence of the present Constitution raises questions about the how and when the impeachment process should be used, whether sufficient safeguards exist to prevent abuse of the process and whether the process can be safely left in the hands of politicians.

While similar provisions existed under the previous constitutions there are no known attempts to impeach a senior judge during that period. The first to be subjected to the impeachment process was Chief Justice Neville Samarakoon who is still referred to in legal circles as a fearless and courageous judge. Chief Justice Samarakoon was appointed by President J.R. Jayewardene directly from the private Bar to the highest position in the judiciary and when it became apparent that he was not a pliable Chief Justice he was hauled up before Parliament, in respect of a speech he had made at a prize-giving ceremony, where he was critical over the treatment of judges.

That impeachment process failed when Chief Justice Samarakoon retired two years later, before the proceedings could be concluded. Subsequently the Parliamentary report cleared him of the charges.

Again in 2001, a resolution was handed over by Opposition MPs to the Speaker seeking the impeachment of Chief Justice Sarath N. Silva. A Supreme Court bench issued a stay order on Speaker Anura Bandaranaike restraining him from appointing the Select Committee.

The Speaker rejected the court order holding that Parliament could not be so restrained and declared that he would proceed to appoint the Select Committee. However before he could appoint the Select Committee, the resolution was scuttled when President Kumaratunga first prorogued and then dissolved Parliament. A second attempt to impeach Chief Justice Silva in November 2003 by the UNP regime fizzled out without even a resolution being submitted to the Speaker.

The resolution to impeach the current Chief Justice Shirani Bandaranayake comes in the wake of a relentless attack on Sri Lanka’s judiciary in the past few months. Interestingly it was just over one and a half years ago that President Mahinda Rajapaksa chose to appoint Dr. Bandaranayake, the most senior judge of the Supreme Court, as Chief Justice seeing her as a safe choice to head the judiciary.

Starting from last year's determination on the amendment to the House and Town Planning Act, to the role played by judges in the attack on the Mannar Magistrate's Court, the decisions of the Supreme Court in the Z-Score cases, the orders made in the web site cases and cases pertaining to demolition of residences by the UDA and finally the determination of the Court on the Divi Neguma Bill, not only the Chief Justice but the judiciary in general has asserted its role in the democratic firmament of Sri Lanka, performing its role as the guardian of the rights of the people.

In September 2012, the Judicial Service Commission issued an unprecedented statement stating that there was interference over the work of the Judicial Service Commission. Although some questioned whether a public statement was appropriate many saw it as one made in desperation in the face of tremendous pressure brought upon the JSC. The JSC is presided over by the Chief Justice and includes two other Supreme Court Judges appointed by the President: Justices Amaratunge and Imam.

The media release did not spell out the specific instances of interference or who had interfered with its activities, but reading between the lines it was not difficult to understand the source of the interference, given that the JSC had only recently moved to discipline certain members whose conduct had been called into question.

Many will see the attack on the JSC Secretary, the orchestrated attacks by the State Media against the Chief Justice and the judiciary, as well as action initiated by certain government bodies as being part of a grand plan to crush what those in power see as "judicial dissent".

Sri Lankan judges unlike their counterparts in India and the United States do not enjoy parity of status with the executive President and Parliament. While the President exercises executive power of the People and Parliament exercises legislative power, judicial power is exercised not directly by the Courts but by Parliament which functions through the Courts of Law. This wording in the Constitution places the judiciary a step below Parliament.

It is said that when the Constitution was first enacted at least one eminent lawyer on the panel who went onto become one of the most distinguished judges of the Supreme Court had wanted the judiciary to be placed on an equal footing but his view did not prevail.

The independence of the two Superior Courts is supposed to begin from the very appointments of those judges. It is presupposed that when the President appoints judges to these Courts he desires them to be independent and impartial. For that reason it has been held by the Supreme Court that consultation with the Chief Justice in making these appointments is desired. Judge's salaries although not adequate in comparison with lawyers' earnings are safeguarded and cannot be reduced or withheld. Their pensions are guaranteed. To safeguard their independence judges of the higher courts are precluded from holding any other office and after retirement they are precluded from engaging in the practice of law in Court, except with the President's express permission.

The Constitution provides that judges hold office during "good behaviour", until their retirement age, which in the case of the Supreme Court is 65 years. This is different from the pleasure principle such as in the Forces, where the President can withdraw an Officer's Commission at his pleasure. A judge can be removed only on the grounds of proven misbehaviour or incapacity.

The Constitution lays down that the process of inquiry can be launched with just a third of the Members of Parliament signing and handing over to the Speaker a resolution calling for the appointment of a Select Committee.

Once the resolution is received, the Speaker proceeds to appoint a seven-member Select Committee which is required to inquire into the allegations and report to Parliament. The Chief Justice is entitled to appear before the Committee and be heard either in person or through lawyers. Once the Select Committee submits its report to Parliament, Parliament once again has to submit an address to the President, seeking the Judge’s removal. That address has to be passed by an absolute majority of Members of Parliament (i.e. 113 members). Only thereafter can the President remove a Judge from office.

While on paper the Constitution appears to offer substantial safeguards, will Sri Lanka’s Chief Justice in reality be afforded the protection that ought to be given in inquiries of such a nature? The reality of the process has to be understood in the light of the highly partisan nature of Sri Lanka’s politics.
In an instance when it is known that a resolution has government backing what is the situation of individual members of the Select Committee, who are Members of the Ruling Party?

Can they depart from the official party line and act according to their individual conscience and act solely on the evidence before them? What guarantees are there to safeguard the independence and impartiality of the Members of the Select Committee? Will their decisions be influenced by the respective positions of their political parties or will the parties give them a free hand? If the Select Committee finds against the Chief Justice, will the Members of Parliament who vote on the final resolution be given the right to vote according to their conscience or will there be a three-line whip compelling them to fall in line?

These are important because the entire process of removal should be not a legislative function but a quasi-judicial function. There are basic attributes such as independence and impartiality that ought to be found in a judicial or quasi-judicial body. Without these basic attributes of due process, no proper or fair decision can be arrived at. Furthermore unlike in normal cases there is no appeal available from a decision of the Select Committee.

The Supreme Court and the Court of Appeal deal with many cases involving public law. There are numerous cases where Government Ministers and Parliamentarians are Respondents in Fundamental Rights and Writ Applications. When the same people are called upon to pass Judgment over Judges who hear their cases, what happens to the essential requirement of impartiality?

In ordinary courts, judges who have a personal knowledge or involvement in cases recues themselves.

There is no question that there must be a forum to investigate and inquire into credible allegations against judges, and that genuine and bona fide complaints must be inquired into and determined. But what of allegations motivated by political consideration, malice or with the intent of attacking the judiciary and its independence?

In other countries, independent tribunals presided over by either foreign or retired judges or other impartial persons are constituted to try complaints against members of the judiciary and often an appeal or review is available by law.

It is important that initiation of such proceedings are not based on political needs or dictates but are done objectively after a proper inquiry conducted by expert investigators.

Unless and until objectivity, independence, impartiality and due process in the proper sense of the words are followed in the process of impeaching judges, a sword of Damocles will hang over the head of every Judge of the Supreme Court and the Court of Appeal each time they are called upon to exercise the powers given to them by law.

*The writer is an Attorney at Law and currently an Eisenhower Fellow in the United States.

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