Judging A Judge: Politics And Pitfalls In The Process
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 JusticeNeville 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.