BASL Resolutions and implications

The Bar Association of Sri Lanka (BASL) adopted three resolutions yesterday relating to the impeachment of the Chief Justice.  In essence, the BASL requests that the President re-consider the impeachment, called for ‘the enactment of procedural laws in relation to the removal of judges of the Superior Courts while ensuring a fair trial by adhering to principles of natural justice’ before proceeding if the first request is turned down, and if the CJ is removed without such enactment and fair-trial guarantees to ‘not welcome’ the CJ’s successor. 

The second and third resolutions clearly assume that the first (request) would be turned down.  The BASL implies in the second resolution that there is a constitutional flaw.  Calling for law-change in mid-process could open a legal and constitutional (if not ethical) can of worms.  Constitutions are not cast in stone, which is why there are provisions for amendment.  What stands has stood, for better or worse, for close to three decades without a murmur of concern being raised by the BASL or anyone else.  This raises the question, ‘Was the BASL ignorant of relevant articles in the Constitution all this time?’ There was politics then and there is politics now, this much is clear.  If the rules can’t keep politics out, then they need to be changed.  Not in the mid-process, not least of all for the bad precedent it sets.  

The allusion to ‘natural justice’ is interesting.  Many BASL movers and shakers are also vociferous supporters of a query currently in the Supreme Court regarding the constitutionality of the impeachment process, essentially asking the CJ to offer determination on a case whose outcome may be detrimental to her interests.  That ‘violation of natural justice’ has not warranted BASL comment.  Neither has the BASL thought fit to observe that if current strictures are inadequate, illegal or violate principles of natural justice it follows that a CJ is unimpeachable, a sorry state of affair which rebels against the fundamental principal of equality before the law.  

The third resolution is a threat, unadulterated.  It appears that the BASL, the governing body of lawyers, has erred on at least 3 counts here.

Firstly, Sec 41 (1) of the Judicature Act gives an Attorney-at-Law an unimpaired and unhindered right to appear before any court or tribunal set up for the administration of justice. Resolution 3 takes away this statutory right.  Secondly, If the CJ is impeached it would have been done both constitutionally and legally (never mind the morality of intent) and therefore the BASL has to recognize it.  Thirdly there is a Constitutional requirement for the President to appoint a new CJ and a new CJ would be appointed constitutionally and legally; therefore there is no ground for the BASL to not recognize a new CJ and to prevent lawyers from appearing before him/her.

Now the wording can be interpreted to mean that what the BASL meant was not to welcome her officially, but lawyers are lawyers and interpretation as per convenience is their bread and butter.  One cannot but note that when Dr. Bandaranayake was appointed, she did not have an official function to ‘present herself before the legal professionals’, perhaps fearing a snub of the kind threatened by this resolution.   

Quite apart from all this, we have a situation where the BASL appears not to know the meaning of ‘unanimous’.  The Vice President of the BASL in fact resigned after objecting to the entire process which she claims was undemocratic. Worse, Dr. Bandaranayake’s lawyers, Neelakanthan and Neelakanthan, operating almost like a Public Relations firm as opposed to a company of lawyers, issues a statement ‘on behalf of client’ to tell the public that Dr. Bandaranayake is grateful that the BASL ‘was unanimous’ in supporting her.  A lot of ‘interpretation’ there of course, but more than that a clear indication that client and/or legal representative have no clue about the meaning of the word ‘unanimous’. 

The BASL has every right to engage in politics.  Responsibility and dignity cannot be demanded but only observed in word and deed and indeed breach of the same.  The BASL was political when its members, with or without the blessings of the body, turned the Supreme Court into a kattadiya’s carnival, and unknowingly or unknowingly gravely compromised the dignity of the post of Chief Justice by taking the politicization of the impeachment to a higher level.  How their high minded notions of ‘natural justice’ and ‘impartiality’ are served by appearing before a judge who they cheered and whose ‘nod’ they received, they have the intelligence to deduce.  The CJ is grateful to the lawyers, by admission.  Will ‘gratitude’ not play in deliberations, one can ask.  The person and the post both appear compromised and the BASL can no longer claim innocence in the outcome.   

It is easy to take refuge in the notion that if everything is out of order it’s perfectly alright to be out of order ourselves.  BASL moves, despite all this, appears to be symptomatic of constitutional flaw no less pronounced than other articulations of the same errors.  It calls not for constitutional tweaking, but comprehensive constitution-review with a view to develop a fresh document, a 3rd Republican Constitution.

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Impeachment moves into Sakvithi-Mode

Sakvithi Ranasinghe, accused of swindling clients of millions of rupees, is reported to have undressed himself in court on Friday to protest procedure.  Not everyone undresses in public in a literary sense, but many do so metaphorically.  These are days of accusation and conjecture, selective references to rules and regulations and shrill protests and counter-protests.  These are days of appearances. These are days of undressing, unwitting for the most part. 

C.A. Chandraprema, columnist for The Island and well known political analyst recently stated that the accusations of vindictiveness against the government to the effect that proceedings against the Chief Justice do appear to have some logic.  To paraphrase, he said, ‘Charges are leveled against a person and thereafter his wide, who is the Chief Justice (CJ), determines that the signature development project of the Government is unconstitutional, a determination followed by impeachment proceedings; “vindictiveness” can be construed.’

The Government has, by omission certainly and possibly by commission, politicized the process, adding credence to the vindictive-accusation.  This has led to a situation where the veracity of evidence is being question and charges are being leveled on counts of fabrication.  What is indisputable, though, is the fact the CJ’s own documents compromise her to the point of impeachment.  Her documents impeach her and moves to frill the process and turn it into a circus only robs sobriety from it and impeaches the Government on true intent. 

On the other hand, if the Government wanted a circus, it seems that those who oppose the impeachment have agreed to provide the clowns.  It has come to a point where political acrobats are being upstaged by politico-legal clowns.  Let’s talk more about appearances.

People have short memories.  The first to raise objection to Shiranee Bandaranayake was the Opposition.  This was long before the Divi Neguma Bill came up.  The shrill objectors included NGO personalities with sad, clownish and pernicious track records.  Today they attend demonstrations supporting the CJ, appearing as though they’ve burnt to cinders their ‘good governance’ handbooks.  They could, if they believe they are honest (which they are not) fault the Government for what appears to be a witch-hunt but raise queries about issue of propriety in the CJ’s behavior with respect to her many bank accounts, strange deposit-withdrawal records and interest-conflict in handling the Ceylinco case.  Instead, they appear to be playing moment-politics spurred by regime-hatred.    That’s self-stripping of a kind.

Then we have the lawyers playing kattadiya and turning the Supreme Court into a thovil-maduwa, a circus in its own right.  If the Government is finger-poking and thereby desecrating those hallowed chambers of justice, these ladies and gentlemen are but playing accessories-after-the-fact or worse, besting the Government in some strange game to turn the judiciary into a laughing stock in the public eye.   They have played political-entourage to the CJ’s manifest assumption of a political persona.  They’ve cheered the CJ and the CJ has acknowledged with tacit if not open encouragement.  

The independence of the judiciary and especially the Supreme Court, then, in this instance at least, has been damaged not by the executive or legislative but by the lawyers and judges themselves.  Self-immolation, one might call it.  It can also be called self-stripping.  How this impacts the CJ’s ability to hear cases where clients are represented by what might be called (members of) her cheering squad does not require elaboration. 

Then there are those special lawyers, those who have been retained to represent the CJ’s interest directly and those, like Wijayadasa Rajapaksa, who are batting for her outside the impeachment process.  It is strange that some of these very people have and are representing Ceylinco against the depositors who were robbed of millions and millions of rupees.  Strange, also, because of a) the CJ’s decision to) take over the case, b) the manifest leniency on the accused and foot-dragging in concluding the case in contradiction of assurances given to depositors, and c) the involvement in purchasing a Ceylinco property.   Nothing illegal about it of course but it is still hard to digest.

Politicians strip themselves often enough.  That’s not news. Here, though, we are seeing a new set of strippers, who don’t want to acknowledge stripping and would have us believe they are fully clothed. 

At the end of the day, Sakvithi Ranasinghe looks more clothed than this lot.  More honest.  And that, ladies and gentlemen is not something to laugh about. 

[Published in 'The Nation', December 16, 2012] 

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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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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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