A sad day for democracy

Sri Lanka Brief-Photo

December 9, 2012, 7:53 pm2, 7:53 pm 

The Parliamentary Select Committee (PSC) that probed charges against Chief Justice Dr. Shirani Bandaranayake has found her guilty on three counts. It concluded its proceedings and produced a report at such an amazing speed that one wondered whether it wanted to finish its work before the end of the world predicted by Mayans!

The seriousness of charges against the CJ cannot be cited in justification of the extraordinary haste on the part of the government in trying to impeach her and the methods used for that purpose. The outcome of the disputed PSC process has failed to convince the discerning public beyond doubt that the CJ is guilty as charged. Opinion is divided on the much flaunted PSC findings. Similarly, the fact that there are constitutional ambiguities about the removal of judges and the methods employed by the government to impeach the CJ are questionable cannot be cited in support of the argument that all charges against her are baseless.

For a government with a simple parliamentary majority, removing a Chief Justice is as easy as shooting fish in a barrel. The PSC process is only a façade; what really matters is how Parliament votes. The J. R. Jayewardene government would have got rid of Chief Justice Neville Samarakoon but for the intervention of his retirement and the Ranil Wickremesinghe government would have sacked Chief Justice Sarath N Silva had it not been dislodged by President Chandrika Bandaranaike Kumaratunga. This time around the situation is different with the present government, impervious to criticism and rational argument, being in a position to go the whole hog and remove the CJ. But, in so doing it is sure to incur much international opprobrium and have its democratic credentials severely dented. The International Commission of Jurists (ICJ) has already fired a broadside, claiming that [the PSC] 'hearing ignores international standards and violates due process'. Government politicians may argue that their course of action is consistent with precedents and constitutional provisions which, according to their interpretation, permit what is being done to oust the CJ, but the fact remains that they have used a flawed process knowingly that it is so. What it has done is like using contaminated instruments in a delicate surgery; the operation may be 'successful' but doomed will be the patient!

The ICJ has said in its stinging critique of the impeachment motion: "The United Nations Human Rights Committee, in its 2003 concluding observations on Sri Lanka, expressed concern that the procedure for removing judges under Article 107 and the complementary Standing Orders of Parliament was not compatible with Article 14 of the International Covenant on Civil and Political Rights." It is puzzling why the then UNF government led by the UNP, which is critical of the current impeachment process, did not heed the UNHRC concerns and act accordingly then. Had a constitutional amendment been moved at that time in keeping with the provisions in President Kumaratunga's 2000 Draft Constitution which was shot down by the UNP and the JVP together perhaps it would have been ratified unanimously as the SLFP was then an ardent defender of judges' rights. Both the SLFP and the UNP let the grass grow under their feet. At least now, they must get together and address the issue of removing judges and bring in constitutional amendments that conform to international standards. The onus is on the government to take the initiative.

However, let it be added in the same breath that the proper process must be followed not only in removing judges but also in appointing them. It is imperative that the political authority be stripped of powers to appoint judges to the Supreme Court arbitrarily. When the incumbent CJ was appointed a judge of the apex court, it may be recalled, there was stiff resistance from senior Supreme Court judges themselves and some of her present-day defenders even moved the judiciary against her appointment albeit in vain.

The ruling party members of the PSC which tried the CJ said on Saturday that the committee's findings were open to scrutiny. The least that the government could do to prove its claim that it has conducted a proper investigation is to let its critics including international experts assess the PSC conclusions, without rushing to the next phase of the impeachment process. What the government will do if independent experts conclude that the PSC report does not pass muster is the question.

The county is faced with a very serious issue that must be dealt with carefully. It is not just a question of removing the incumbent CJ; the unfolding impeachment drama which, in our book, has a predictable end is fraught with the danger of rendering all judges of the apex court, both present and future, insecure.