IN THE CAUSE OF JUSTICE?

The UN Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, seems to be cast in a different mould to that of former distinguished Special Rapporteur in the same post, Dato Param Cumaraswamy.

Cumaraswamy understood that the independence of the judiciary is one of the cornerstones of good governance, and when there was a case filed challenging the appointment of former Chief Justice Sarath Silva, who went onto become one of the most inimical influences in the Sri Lankan judiciary, Param Cumaraswamy took special interest in that situation, and fully endorsed the International Bar Association’s dispatching of a special observer to report on that case.

Ms. Knaul on the other hand seems to have misunderstood the import of the present impeachment motion against the current Chief Justice of Sri Lanka. As a special rapporteur, she has made a statement that is critical of the government’s impeachment moves. She obviously has failed to understand that the head of the apex judiciary cannot be the same person that has powers over the promotion and tenure of the Magistrate who is hearing a bribery case in which the embattled Chief Justice’s husband is the suspect.

Stepping down

Justice must not only be done, it must manifestly and undoubtedly seen to be done, and a person who holds a UN post as important as that of a special rapporteur, should be able to discern the difference between a situation of unwanted interference -- and maintaining the integrity of the judiciary.

Perhaps, she has to be forgiven for not studying the antecedents of this entire imbroglio. If she did some nosing around as requisite homework for her statement, she would have realized that it is the Sri Lankan opposition and Sri Lankan civil society that first called for the Chief Justice’s resignation. An opposition member of Parliament, Harsha de Silva first broached the issue of her stepping down in the face of the investigations her husband faced as a public servant.

If the opposition called for the Chief Justice’s resignation, and she continued in her post, the government’s motion to impeach her is in furtherance of the opposition’s desire to keep the judiciary unsullied by any appearance whatsoever of taint as a result of being compromised.

That the Special Rapporteur on the Independence of the Judiciary, is in fact now calling for something that goes against the independence of the very judiciary she wants to protect, is curious.

She has also spoken about threats to the integrity of judges, and about cases of physical intimidation, but she must not be aware that in the two cases that she is referring to, action has been taken; in one of the instances she must be referring to, there are contempt hearings underway against the offender.

Hyperbole and blowing out of perspective therefore does not serve the cause of anybody, least of all the country and her citizens she seems to want to protect.

“Judges may be dismissed only on serious grounds of misconduct or incompetence, after a procedure that complies with due process and fair trial guarantees and that also provides for an independent review of the decision.

The misuse of disciplinary proceedings as a reprisal mechanism against independent judges is unacceptable,” Ms Knaul has stated.

Impeaching judges

Due process and fair trial guarantees that are reasonably obtainable under the circumstances, are in-built to the constitutional process that oversees impeachment. For example, this is the same process that the United States Houses of Congress carries out in impeaching judges.

The only difference may be that in the U.S the House of Representatives frames the charges, and the impeachment trial is a matter in the hands of the Senate. But that hardly makes a difference, especially when both houses have a majority of say, Democrats, as opposed to Republicans.

To say the least, therefore, Ms. Knaul’s concerns are misplaced and her statement hinders rather than helps. She should be supporting the cause of maintaining the integrity of the judiciary, as it is expected that in her line of duty she would do so. It is not the government in this light that needs to reconsider the impeachment – it’s the rapporteur who needs to reconsider her pep-talk.