A Surge Of Public Empathy For A Court Under Siege
Kishali Pinto-Jayawardena
The
Government’s brushing aside of the Supreme Court’s entirely appropriate
order this week requesting Parliament to desist from continuing with
the impeachment of the Chief
Justice until a final determination was handed down in petitions
being heard filed before it, was arrogant but unsurprising.
The
Bench spoke to the comity that must exist between the judiciary and the
legislature for the greater good of the country. It cautioned that this would be
prudent as well as ‘essential for the safeguarding of the rule of law and the
interest of all persons concerned.’
But
its words were in vain and at the close of the week, Sri Lanka’s Chief Justice
was compelled to appear in person before the Parliamentary
Select Committee (PSC) in the formal commencement of a politically
driven impeachment process.
Neither
purse nor sword but only judgment
American
founding father and political philosopher Alexander Hamilton’s potent and
powerful warning that ‘the judiciary has no influence over either the sword or
the purse, it may truly be said to have neither force nor will but merely
judgment’ ((Federalist Papers, No 78) is therefore singularly apt for the
dilemma in which Sri Lanka finds itself today.
The
executive holds the sword of the community while the legislature commands the
purse. In contrast, the judiciary is dependent solely on its judgment and
integrity. If the integrity of the judicial branch of the State is destroyed
through executive action or its own complicity, then all is lost. The executive
is free to trample as it wishes on the judiciary, the law is then unseated and
justice is thrown proverbially to the wolves.
In
the present impeachment of Sri Lanka’s Chief Justice, it does not require
remarkable wisdom to determine as to who will be the winner and who the loser in
a head-on clash. This is possibly why Thursday’s order by the Supreme Court
wisely sought to avert an open confrontation with the legislature at the outset
itself.
Commendable
restraint was shown, transcending a most particular anger that must naturally be
felt by judicial officers when the head of the judiciary is impeached in this
way. Now that this request has been abruptly brushed aside by the Government,
the consequential judicial response remains suspenseful though it is not
difficult to imagine a plea of futility being put forward by the Attorney
General in later hearings.
Significant
differences with recent precedent
Notwithstanding,
this week’s measured ruling contrasts sharply with an earlier order of the Court
delivered in 2001 when an impeachment motion lodged by the opposition was due to
be taken up by a Select Committee against a former Chief Justice, Sarath Silva.
In that 2001 order, interim relief was granted staying the appointment of a
Select Committee with the judges opining that a stay was warranted due to a
purported exercise of judicial power by the legislature.
This
view was peremptorily dismissed by the late Anura
Bandaranaike, the then Speaker, who reasoned in copious detail that
the judiciary had no business interfering with the constitutionally mandated
parliamentary process of judicial impeachments. Fortuitously, (for that former
Chief Justice), Parliament was thereafter dissolved by former President Chandrika
Kumaratunga, preventing any further action.
However,
there were significant differences between that impeachment motion and the
current unseemly fracas. Charges against that former Chief Justice relating to
abuse of judicial power had been ventilated long before 2001, causing a
veritable public scandal as it were. That motion for impeachment was brought by
the opposition and not by the government. That Presidency’s entire effort was,
in fact, to prevent the impeachment being brought against that former Chief
Justice for reasons that are well in the public domain.
Comity
must exist between the judiciary and executive
In
contrast, what we have now is a hastily drafted impeachment motion, replete with
mistakes but driven by the formidable might of this government with accompanying
full scale abuse of the judiciary by the state media.
A
greater contrast therefore cannot be evidenced. Rather than the executive
safeguarding a Chief Justice against whom allegations of judicial misconduct had
been leveled, what drives this present process is executive pique if not
outright anger at a series of adverse Determinations by the Supreme Court on key
Bills.
The
move is against the entirety of the Court for a Determination is not an opinion
of an individual judge but a binding decision of the entire Court. The Court’s
response this Thursday illustrates its recognition of the danger that it faces
collectively. Indeed, given the peculiar context in which its intervention was
sought, this was a far more appropriate ruling than the stay order handed down
by a previous Court in 2001.
Whatever
this may be, this judicial stand must be unequivocally supported by the Bar and
by the citizenry. The Bar has bestirred itself recently in passing a resolution
requesting that the President reconsider the impeachment of the Chief Justice.
Contempt of court applications may be filed against an abusive state media. But
its leaders need to question themselves in good conscience as to whether merely
passing resolutions and engaging in private meetings with politicians and
parliamentary officials fulfils the heavy responsibility vested in them given
the extraordinary threats that face the country’s justice institutions?
An
enchanted complicity in the executive’s attacks on the judiciary
Half-hearted
responses to the instant crisis only expose the credibility of the leadership of
the Bar. Surely have we not learnt enough from the past? After all, the very
omissions and commissions of the Bar were crucial factors that led to this
crisis in the first place.
As
appreciated by the inveterate satirists among us, some of these legal worthies
jostling to prove their bona fides against the impeachment were themselves
thoroughly implicated in the ravages of justice that occurred during the
previous decade, after which, it became unarguably much easier for any
politician to call up a judge and exert inappropriate pressure.
We
also saw lawyers vehemently arguing not so long ago in defence of presidential
immunity in order to shield the President and his minions from the reach of the
law. It is only now that these worthies appear to have woken up to realities.
One is tempted to ask whether they were cast under a spell, like the enchantment
of old which helplessly bound Rapunzel, into conscienceless complicity with the
executive all this while.
Furthermore,
seniors of the Bar accepted unconstitutional appointments by the President in
defiance of the 17th Amendment and steadfastly looked the other way when the
18th Amendment was passed. The grave historical responsibility of the Bar in
this regard can only be mitigated by unconditionally courageous actions now.
That much must be emphasized.
This
Presidency should take heed
This
impeachment is destined to leave us with a hollow shell where the authority of
the law once proudly possessed centre stage. Black coated members of the legal
fraternity will prance before courts in a bitter mockery of the legal
process.
This
is what is desired perhaps by those in the seats of authority. But the best laid
plans of mice, men and authoritarian political leaders drunk with insatiable
power may still go awry. The steady gathering of public empathy for a Court
under siege is now noticeably under way. Undoubtedly this Presidency should take
heed of bitterly dissenting voices, at times coming from the very support base
that brought this administration to power.
To
ignore these voices would be to imperil its ultimate political survival. Make no
mistake about that.
