The original sin of selection

The fate of the Chief Justice is now officially in the hands of the Parliament and thereafter the President, in the event that Parliament recommends removal from office.  The fate of the dignity of her post, parliamentary procedures, impeachment processes and the nature of power separation between the executive, judicial and legislative arms of the state will remain a matter for constitutional amendment, interpretation and the extent to which the primacy of public will and public trust congeal within these institutions and processes. 

Time will tell. 

For the last several weeks the rhetoricians have ruled.  The law and due process have been overshadowed by a preference for emotional outburst.  The nation Is used to parliamentarians behaving like hooligans, so their outbursts don’t surprise any more.  However, when lawyers (individuals who are supposed to ponder words spelled out in black and white) resort to smashing coconuts and appealing to astral entities whose existence is fictional, only those motivated by narrow political objectives can cheer. 

All things in this world are subject to the timeless truths of birth, decay and death. People come and go. Institutions are more resilient but are themselves subject to alteration.  Individuals can resign or be sacked, but the posts they hold survive them.  One can impeach a Chief Justice or a President, but one cannot retire the post of Chief Justice or sack the Presidency without risking anarchy unless alternative structures of justice-determination and executive authority, respectively, are legislated. 

While political circles have been busy pontificating on the legality of process, pointing fingers about vindictiveness and high-handedness, the manufacture of guilt and so on, there’s been a conspicuous silence about the genesis of the current tension between executive and judiciary, which has translated into a legislative-judiciary battle. 

The Constitution provides for appointment and removal.  The current debate focuses on ‘removal’.  The point is that ‘removal’ is consequent to appointment.  The public service does have recognized and established procedures of appointment.  Over the years, these rules have been bent for reasons of political convenience. On certain occasions even laws have been changed to facilitate appointment and promotion of favorites and the politically and administratively pliant. 

If the CJ is found to have been out of order, then the question that needs to be asked is ‘was she not properly screened?’  It goes for other ‘high posts’ too, including diplomatic postings.  Whatever the confusion regarding propriety of impeachment process may be, there is absolutely no doubt that this country woefully lacks a process of screening candidates to important positions in the administrative service and of course the senior most position in the judicial system. 

For all its many flaws, the system in the USA is far more stringent when it comes to screening candidates.  There are congressional and senate committees where candidates are grilled not just on track record, but decisions made and all manner of affiliation, official, semi-official and private.  In Sri Lanka, the notices for submission of public query come late, in small print and are largely ignored.  The signature of the process, if there be one, is rubber-stamping. 

In the case of CJ-appointments, especially since 1978, we have seen ‘friends’ being favored over seniority and competence.  This has led to an erosion of trust in both appointer and appointee.  The current tensions make for an ideal situation to revisit the appointing-moment and correct the obvious flaws which have at least in part snowballed into what some have called a constitutional crisis or worse a crisis of the state. 

Individuals come and go; systems are more sustainable.  Flaw in system naturally lead to error in selection and exacerbate the ill effects of a flawed appointee.  The entire script then has to be revised.  From scratch.  ‘Scratch’ here would be ‘appointment moment’. 

If one positive is to emerge from what has turned out to be a bitter and invective-filled process that is unhealthy to society as a whole, then it is a firm decision by all concerned to correct the relevant statutes on selection.  If we get it right at the proverbial ‘Square One’, future generations will be spared the hooliganism from all quarters as such we are witnessing today. 

['The Nation' Editorial, December 9, 2012]

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A note on resilience

Sri Lanka is a resilient nation.  The people of Sri Lanka lived through two bloody insurrections, three decades of war, and all manner of natural disasters capped by a tsunami that left hundreds of thousands homeless and over 40,000 dead.  And still we smile. 

 

When we talk of disasters, however, there is one which we routinely overlook: the 1978 Constitution.  This is strange, especially since the 1978 Constitution, both in article and lacuna, veritably presides over the playing out of tensions between the executive and judicial branches of the state (which have spilled over and found expression as tensions between the judicial and legislative branches).

The bone of contention is of course the Parliamentary Select Committee (PSC) appointed to investigate allegations against the Chief Justice (CJ).  The Supreme Court (SC) is currently in the process of hearing a petition querying the constitutionality of the PSC, a process which rebels against the principle of natural justice (where the CJ essentially is part of a process determining the legality of a course of action initiated against her).  Those against this move offer that it is pregnant with selectivity and vengeance.  Parliament has summoned the CJ to respond to charges and the SC seeks to summon the Speaker. 

As things stand, if the contentions of lawyers petitioning the SC are upheld, we would have to conclude that the CJ is above the law.  Since integrity, ethics and respect for institutions and posts such as the ‘Chief Justice’ have left the building a long time ago it is unlikely that any of the parties will back down from positions.  In a post-1978 Sri Lanka where the executive, legislative and judicial arms of the state have on numerous occasions encroached on one another’s territory, acted in high handed manner, shown unconscionable parochialism, selectivity and malice, the only word to describe things is ‘unfortunate’.  One should qualify thus: the only ‘generous’ word. 

All this serves only to turn playing ground into happy hunting ground for forces pursuing narrow political agenda which could very well result in Sri Lanka’s sovereignty being compromised and the people’s vulnerabilities further exacerbated.  The issue has been politicized from the beginning by all key players, a state of affairs which naturally provides a lot of ammunition for detractors of the regime and general Sri Lanka haters. 

Much of it is beyond control of course.  Sections of the Opposition, for example, sorely lacking in the proverbial straws to cling to, would naturally find in the CJ a new pretender (like it flirted with former CJ Sarath N Silva and like it leased out, in Sajith Premadasa’s now famous words, the presidential candidacy to Sarath Fonseka).   Those who saw the LTTE as a convenient ally in destabilizing the country (and later the Rajapaksa regime) and who now have lost that little money-spinning toy are likewise straw-clutching.  Let there be no doubt whatsoever that this issue will be taken up in Geneva in March 2013, even though there is nothing ‘unprecedented’ or horrific about a CJ being impeached. 

The best that the Government can do is to resist temptation to play the politicization game. 

The poster that was put up in Colombo this morning, with the legend ‘Lajjai Methiniyani’ (Shameful, Lady!), referring unabashedly to the CJ is an example of unnecessary (and distasteful!) politicization of the issue.  There is constitutional provision, one can argue.  If there isn’t then there is room for relevant amendment.  There is a process that’s underway.  The Government ought to let it run its course without frilling process and feeding those elements that would make things darker than they really are. 

To get back to resilience, it is pertinent to ask whether the current ‘impasse’, so-called, has the attention of the masses that some may say it deserves.  If there is ‘concern’, it seems largely hidden.  As prominent lawyer and political commentator Gomin Dayasri pointed out if the CJ is not ‘hero-to-be-followed’ in the way that Sarath Fonseka was (for some at least and for some time at least), it has something to do with how the people view the judiciary and the Army respectively.  The latter, people feel, they owe something to.  Not the former. 

What’s happening in the SC and in Parliament therefore has not prompted anything close to mass objection.  Moves against the CJ is not covering anyone in glory, true, but on the other hand the CJ’s moves to turn the Judicial Services Commission into a trade union is not eliciting any cheers either.  Lawyers and judges have already desecrated the courts by turning them into places where coconuts are smashed to obtain succor from deities who are supposedly amenable to vengeance extracting contracts.  The Parliament is and has been home to a lot of hooliganism.  If there’s more ugliness in store it wouldn’t surprise anyone.  It probably will spill into Geneva in March but that won’t surprise anyone either. 

Regimes thrive, become unpopular, survive unpopularity and give way.  It has happened throughout history, and as President Mahinda Rajapaksa is reported to have recently told MPs of his party, no one should harbor the illusion of political immortality.   Judges, likewise, have and will have their day. They too will pass. 

The people remain.  They have suffered much and survived much.  They are resilient. 

 

 

 

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Floundering without integrity and ethics

There are two processes before us.  In one, a set of judges whose career advancement is tied to decisions taken by a body presided over by a particular individual, deliberates on the constitutionality of a second and simultaneous process that seeks to oust that very same individual.  In the second case, a set of people also sit in judgment over the conduct of that individual.  The majority of this group share membership in a political party with another set of people who have petitioned for the individual’s ouster. 

It is all legal, subject of course to interpretation of relevant constitutional articles, an exercise, as pointed above is as marked by ‘interest conflict’ as the one being determined on.  The political battle will be fought with both rule-sword and interpretive-sword.  Other arms and ammunition cannot be discounted here, for history is replete with many examples of out-of-court settlement, so to speak, where the settlers don’t necessarily cover themselves with glory. 

As things stand, though, personality, error, ego and expedience have taken center stage, where the players strut around as public-interest litigators and are egged on by cheering squads who have their own agenda. 

The one thing that is clear in all this is that somewhere down the light a few characters left the stage or rather they were robbed of scripted line and pause.  It is an indictment of our society that we haven’t noticed their exits, absences or silence.  Ethics has left the building.  Integrity has quit.  Their clothes have been robbed by the other players who prance around as though they’ve got the garments, undergarments, skin, bone, flesh and organs as well, heart included! 

It cannot be by accident that Justice C.G. Weeramantry in this year’s Lalith Athulathmudali Memorial Lecture chose to speak on Judicial Ethics (experts of his speech can be found elsewhere in this edition of ‘The Nation’).  One of just 5 individuals to be honored with the title Sri Lankabhimanaya (Pride of Sri Lanka), he is in fact someone who deserves a global title on the same lines, few would disagree.  A patriot in the finest sense of the word, Justice Weeramantry’s choice here needs to be read as a serious and tender exposition with malice to none that is acutely aware of the aforementioned processes.  

It is not just about the judiciary.  He speaks of all the key institutions of the state, the way they relate to one another and how and why they need to be independent of one another, subject to the irreducible non-negotiable: integrity.  That’s not something you can legislate for; it is not something you can script in.  It is a choice made by the particular individual. 

Words (read as laws) are important and necessary but not sufficient, he reminds us: ‘strong  words in a constitution regarding judicial independence can very easily be undermined in practice, unless all members of the executive and the public act in the spirit of this constitutional provision’. 

This ‘independence’, he cautions, must be tempered with a conscious effort by judges ‘to rise to the highest levels of rectitude necessary to discharge the hallowed duty that rests on them of delivering justice, pure and unadulterated, to those who come before them’.  That ‘rectitude’ has been observed, sadly, in the breach. 

‘Observed in the breach’ is, equally sadly, not the preserve of the judiciary.  The current machinations by movers and shakers in these critical spheres of the state scream for constitutional amendment.  And yet, such tweaking can only take us so far. 

The doors must not only be opened for the re-entry of integrity and ethics, but it should be ensured that these entities preside over everything that happens. 

We are a long way from that and that is because all of us, as individuals and collectives, booted them out of the building.  Easy to throw out, hard to recall. 

['The Nation'  Editorial, November 25, 2012] 

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Constitution impeached!

It is now official.  The Executive-Judicial clash is heading towards denouement and one that is not hard to call.  We’ll get to that later. 

Chief Justice Neville Samarakoon escaped the ignominy of impeachment by resigning.  Chief Justice Sarath N Silva was spared by the Parliament being prorogued first and then dissolved.  In the case of the former, the Executive had sway over the necessary numbers in Parliament.  In the case of the latter, the mover, Ranil Wickremesinghe didn’t have the numbers and didn’t have the support of the Executive, Chandrika Kumaratunga.  When Silva ruled to snub Kumaratunga, she couldn’t think impeachment because she didn’t have impeaching numbers. 

Today it is Chief Justice Shiranee Bandaranayake who is in the dock.   In a context where regime popularity is hinged on the popularity of the President and therefore the political fortunes of ruling party MPs are tied to him remaining in power, the Executive has a vice like grip on the legislative branch.  The Executive, moreover, has the numbers that neither Wickremesinghe nor Kumaratunga had.  As such, things look bleak for the Chief Justice.

There are howls of protests of course but not all the protestors have moral right on their side.  Silva himself had his ups and downs as well as his sideways ways including encroachment on executive territory.  Among those who object to the current moves against the Chief Justice are those who sought to bring down Silva but forgave and forgot the moment Silva fell out with the Executive following the classic ‘my enemy’s enemy is my friend’ formula.

Many who are shedding tears for the Chief Justice today, howled in protest when she was first appointed to the Supreme Court.  ‘Political appointee!’ was the scream back then.  Morality was cited by the objectors who pointed out that the lady’s husband was a high ranking government servant.  They later even salivated when her husband, who was Chairman of the National Savings Bank, was implicated in a 390 million rupee deal in the stock market. 

On the other hand, the current investigation of the husband, following the much publicized Executive-Judicial spat and the subsequent impeachment move, says a lot about selectivity and even revenge-intent.   The message that is not spelled out but is nevertheless clear is, ‘We can just get along, but if we can’t, there’ll be arm-twisting, and if that doesn’t work, well, we have the numbers and the law’. 

It doesn’t make it morally right though.  It is morally wrong to subject the Chief Justice to a witch hunt, for that is what is has amounted to.  It may be legal, but still the use of available mechanism to get rid of her without any mention of ‘reason’ or transgression on her part, makes a bad, bad, bad precedent.  The howlers don’t have the moral authority either, given their flip-flopping nature on issues of this kind and the fact that they’ve been consistently motivated by matters of political expediency and not issues of legality and morality.  

If indeed, as alleged, the Chief Justice is inept or guilty of wrongdoing, the process that seated her in that august office must be flawed.  If unseating is simply a matter of leveraging numerical edge, that too indicates mechanism-flaw. 

Perhaps these developments, in the end, serve only to strip the 1978 Constitution to its iron-like bones, demonstrating that for all the sway and punch of the judicial and legislative arms, the executive can be too a heavy a weight to budge. 

It boils down to presidential discretion and that shows constitutional error and poverty.  We can curse the Second Republican Constitution and its architects.  We can find the gripe of its never-envisaged victims (the UNP) amusing.  None of this requires us to cheer the current and principal beneficiary. 

Simply, the constitution and by extension, its props and beneficiaries stand impeached.  Morally.   

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