Towards a country called Tomorrow

‘It is better to impeach too often than too seldom; if those in positions of power cannot be virtuous, they should at least be nervous’ [after Joseph Sobran]

President Mahinda Rajapaksa promised that the ruling party will show its strength when necessary. The ruling party did so on Friday, passing the impeachment motion against Chief Justice Dr. Shirani Bandaranayake, courtesy the massive number advantage, 155 for 49 against. It was a foregone conclusion. The argument in favor of the motion referred heavily to the notion of parliamentary supremacy and the weight of Standing Orders (in particular 78A) vis-à-vis the word of the courts.

The debate itself was held in spite of and in contradiction of the Court of Appeal (CA) upholding writs of certiorari and Prohibition petitioned for by the Chief Justice, where the Parliamentary Select Committee (PSC) appointed under and in terms of Standing Order 78A was determined not to have legal power or authority to find anything that affects the legal rights of the CJ. The court thereby quashed the report of the PSC.  The CA in fact refereed the larger question of constitutional interpretation to the Supreme Court (SC), which had ruled that 78A violates the constitution.  The other elements of the petition (bias, deviousness etc.) the CA did not have to determine on, therefore. 

The above, then, can be described as the butt-ends of parallel processes where the legal muscles of the relevant lines tested themselves against one another.

Processes are never clinical. People and interests are naturally parts of the story. Rhetoric has a say. Words are used. In high profile cases the stakes are high, not just for the protagonists but their hangers-on and anyone and everyone who senses that there are morsels or even something more substantial to be lapped up if the cookie crumbles their way. There has been, therefore, much vilification across the board.

The charges against the CJ are serious to the point that those against Neville Samarakoon seem utterly trivial. Details of her bank accounts and activity therein warrant, in the very least, query of post-suitability. Details of the Trillium transaction and related discounts indicate infringement of Article 110(2) of the Constitution, ‘No Judge of the Supreme Court or Court of appeal shall perform any other office (whether paid or not) or accept any place of profit or emolument, except as authorized by the Constitution or by written law or with the consent of the President.’ Financial experts would maintain that the term discount indicated loss to the seller and profit to the purchaser. ‘Gift’ is indicated. As such the legality of the move notwithstanding decisions regarding the bench hearing the relevant case raises serious questions of objectivity and dignity of office.  Allegation needs to be proved, though.  For such, there should be provision.  The CA determination leaves one to conclude that there are none. 

Many who have opposed the impeachment process have studiously sidestepped such issues, choosing instead to focus on matters of moral authority and perceptions of vindictiveness, both of which can be argued cogently. Political readings where logic is mixed with selectivity make heady cocktails. Allegation can be read as vindictive finger-pointing and this can be confronted by finger pointing in return. For every single matter on which the CJ’s behavior is questioned, one could argue, similar queries can be directed at her detractors.  The politics of convenience, therefore, marked the process from the beginning to end.

That kind of politicization could have been avoided, if for example the process was a product of separate investigations, subject to the caveat that nothing can stop objectors crying ‘foul’ and alleging premeditation. It could have been minimized if process was not padded by a campaign to ‘educate’ the public. It can be argued also, that such efforts may have fed into the interests of those who have an axe to grind against the regime, spurring frenzied commentary about attacks on the independence of the judiciary, dictatorial tendency. The notion ‘international conspiracy’ naturally acquired currency.

It was not a matter of determining guilt or innocence, as far as the CA was concerned, but rather one of propriety.  If 78A is unconstitutional, then it should be transformed into an Act of Parliament, the constitutionality of which the SC has to determine.  Parliament, in such an eventuality, could have insisted that the incumbent CJ should absent herself from the inconsistency check, since we were in impeachment mid-stream. At this point, Parliament would have been forced to assume the integrity of the bench, whose ‘independence’ is clouded by the composition of the Judicial Services Commission, the Chairperson of which is the CJ herself, ex-officio.  ‘Mid-process,’ however, is the rhetorician’s ‘home turf’.  That’s where ‘foul’ is heard the loudest.  Given the degree of politicization, sobriety would have been obtained dearly for suspicion is at a peak and egos at risk of disintegration. 

The fact of the matter is, without 78A and until such time some new measure is introduced, the 1978 Constitution would remain one where there are no provisions whatsoever to oust an errant judge of the higher courts.  That’s an unacceptable state of affairs.  Introducing something now would set a bad precedent, but one could argue that there’s no choice but to do so. 

Those who object to the CA determination can argue that judicial review is never conferred in the abstract or in every conceivable situation. Permissibility is detailed. Powers are caveated with limitations. They can also state that constitutional provisions for ousting of judges of the Supreme and Appellate courts in countries that subscribe to the Latimer House Principles have applied them only to the subordinate judiciary. In both Britain and Australia, Parliament has close to absolute power in determining the ways and means of impeaching judges of the higher courts, noting however that both countries have second chambers which are less about political parties. 

The problem is that review of impeachment measures was not done when they had to be done and were neglected when necessity was pointed out.  Queen’s Counsel Nadesan’s submissions on the matter in his defense of Justice Samarakoon is almost three decades old, so few can claim that no one noticed. Bandaranaike, Muttetuwegama and Gunawardena (of the PSC relevant to that process), in their dissent, urged sending the matter to the SC for a determination.  Nothing was done and so the flaw remained.

On the other hand, those objecting to the CA ruling could claim that Article 107 (3) gives Parliament the option of providing procedure for impeachment either by Law or by Standing Order.  The Legislature can perforce choose to ignore determinations of the judiciary, they would argue, contending that the ruling traverses the jurisdiction and powers of the Legislature. They would, like their objectors, refer principles of power separation.   

It is then the lack of clarity regarding the separation of powers that makes for multiple interpretations. This is why political convenience is enjoying a field day. This is why, regardless of the seriousness of allegation and the guilt or innocence of the accused, it is possible for all protagonists to present cogent expositions of respective positions.

For all these reasons, it is objectively impossible to salute one or the other of the interpretations as ‘true’, ‘valid’ and/or ‘overriding’. When one or other is upheld as ‘The Relevancy’, what is in fact being asserted is political preference and/or political objection, propriety being a convenience, an alibi shaped by preferred outcomes.

As things stand, the President (who is both Executive and Commander-in-Chief of the Armed Forces) has the power to give effect to the Parliament’s determination, by word and if necessary deed (of enforcement). The President can, in the name of the people and dignity of the post of Chief Justice, go ahead to sack her and appoint a successor. This, however, will not untie the interpretive conundrum pertaining to the matter of ousting judges of higher courts. Just as erring on the side of the Court of Appeal determination would not indicate a superior-anterior positioning of judiciary and legislature respectively, this course of action would not make Supreme Court slave to Parliamentary master forever, even though precedent is a powerful referent and ally in the machinations of the pernicious.

The statesmanlike option would be to desist, not out of deference to interpretive superiority of the Court of Appeal or fear of possible censure by unfriendly movers and shakers in the international community and consequent political discomfiture, but because CJ, impeachment and constitutional conundrum are trivial to someone who has vision and has the larger and sustainable interests of the country at heart.

This is perhaps a moment for deep and sober executive reflection. The President may, if he so chooses, declare that inasmuch as he (let us say) respects the determination of the Parliament and inasmuch as he (let us say) finds error in the court determination, he recognizes that a serious constitutional flaw exists, one which blurs dangerously the boundaries that separate the three branches of government. He can add that moreover the 1978 Constitution has many other errors, including those pertaining to checks and balances, those of transparency and accountability in particular. He can therefore declare that this crisis (as some brand it) calls not for amendment but overhaul. The matter of infusing clarity and robustness and moreover dignity to appointment processes, positions themselves and ousting procedures would be thereby resolved but only as part of a larger and necessary process of elevating the constitutional document to one consistent with democracy, in spirit, in word and deed.

['The Nation' editorial, January 13, 2013]

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