03 March 2013

Aspirants to the Supreme Court should be grilled

Problems between the Executive and Judiciary, interestingly, have all been related to judges whose appointments have been colored by political preferences.  It is not that they were unsuited, but nevertheless their appointments and therefore integrity were naturally questioned.  Still, as happened when Chief Justice Dr. Shirani Bandaranayake was impeached and removed from office, the focus was less on injudicious selection than on constitutional provision for removal.  Thus, until such time appointments to the Supreme Court are made only consequent to a stringent screening process provided for or supported by relevant legislative enactment, there can and will be impeachment circuses while the 1978 Constitution remains effective.

Now that it’s all done and dusted it is perhaps time to think of ‘starting point’ rather than anticipating and taking precaution against endpoints similar to what we saw a few weeks ago. 
In many countries aspirants or nominees to the Supreme Court are subjected to rigorous scrutiny.  Their histories, professional track record, all judgments passed, political positions taken, statements made as well as the lives of close associates including friends and family, are carefully considered in order to evaluate impartiality and integrity.  Not so in Sri Lanka. 

True, a president cannot pick just anyone off the street.  There are certain categories that are privileged.  We have had judges of the Supreme Court promoted from lower courts, moved from the Attorney General’s Department or drawn from the academic community.  Thus, there are some basic credentials that one must possess.  On the other hand, credentials are only part of the story.  An example might shed better light on the matter and hopefully prompt appropriate safeguards to be put in place.
Shirani Bandaranayake was an academic and one with explicit ideological preferences.   In fact she was admonished and instructed not to take cases that had anything to do with devolution, given certain outcome preferences and particularities of political reading.  She did.  She irked the Executive.  She paid the price, and the legality or ethicality of process of the matter are not our concern here.  The issue is ‘ideological preferences’. The issue is past record.  Let’s consider these via an unlikely appointment which is useful for purposes of illustrating the importance of circumspection in appointment. 

Let us assume that President Mahinda Rajapaksa goes for certificate-weight. Let us assume that he picks Dr Lakshman Marasinghe, Emeritus Professor of Law, University of Windsor, Canada, Attorney-at-Law and Barrister-at-Law (Inner Temple), one time Visiting Professor of Law, University of Colombo and Legal Director of the Secretariat for Coordinating the Peace Process (SCOPP) during the early days of the Ceasefire Agreement.  Impressive indeed, no one would dispute the fact. 
But is Marasinghe ‘clear’ on other issues, especially but not limited to matters arising from the constitution (as is) and questions of sovereignty, territorial integrity and so on? 

In an interview published in the Sunday Observer (March 14, 2004), Marasinghe waxes eloquent on ‘extra constitutional methods to change the constitution’.  He interjects an interesting term: ‘the doctrine of necessity’.  It’s about measuring evils and picking ‘the lesser’.  Subjective to core, one would observe.  He also interjects ‘efficacy’, in the event of a coup d’tat.  He adds that all that is required is ‘judicial control in the determination of (the) particular formula’ when certain articles are changed.  Now, if he were Chief Justice in a time of upheaval, say in an Arab Spring, post-Gaddafi Libya or ‘Imminent Syria’, where political control is dispersed, what then?  It would depend on his political preferences!   ‘Necessity’ then would justify and legitimate judicial action even if it amounted to recognizing de facto control of part of Sri Lanka by the LTTE and thereby conferring such with illegal control, with de jure status. 
Marasinghe also spoke about ‘extra constitutional means to set up an interim administration a la the infamous ISGA proposals.  He states, ‘A two-thirds majority is not relevant’ according to the present constitution’ a claim that has been disputed.  More importantly says that ‘if you set up an interim administration outside the constitutional framework (as would have been the case if the ISGA proposals had gone through) then you would be recognizing that, that territory is apart from the constitution and not within the territory of Sri Lanka’.

He illustrated the point graphically thus: ‘If you cover a table with a green cloth and put a white cloth over it and then withdraw parts of the white cloth, the green will appear.  Setting up an interim administration outside the constitution would be similar – two different territories.’
Marasinghe, in his capacity as Director (Legal) of SCOPP, was involved in preparing the MOU to be entered into between the Government and the LTTE in order to place foreign funds directly in the hands of the LTTE.  The MOU, moreover, provided that these funds would be treated as loans to the Government and repaid therefore by the Government, although they would be sent directly to accounts not controlled by the GOSL, accounts which the LTTE could access!  The Supreme Court, later, stayed these provisions as unconstitutional (Weerawansa v Attorney General).

Marasinghe advocated this mechanism at the relevant government ministries and departments.  His approach was clearly unprincipled as demonstrated by the SC decision
It’s all scholarly.  Eminently ‘respectable’.  Impeccable academic credentials, however, is still only a thin film in the matter of covering up political project, ideological drive and such. 

The problem is that the current system is so loose that a Marasinghe could very well creep into the Supreme Court.  When Bandaranayaka was appointed, her ideological preferences were not scrutinized or rather they may have been scrutinized and won approval from a like-minded political establishment.  Bandaranayaka subsequently went on to do her utmost to wreck the Government’s signature development project.  That was scripted, not when Divi Neguma came up but when she was appointed to the Supreme Court.  
The question is, can we (forget the Government) afford to err?  Should we not subject those who are recommended to such positions to rigorous scrutiny?  Isn’t that a price that aspirants ought to be ready to pay?  Or is a Marasinghe going to wreck us somewhere down the line?