Playing tennis in Hulfstdorp

H. L. D. Mahindapala

By its very nature impeachments rouse public passions to feverish pitches as seen in the cases of President Bill Clinton and President Ranasinghe Premadasa. One of the reasons is the high public profile of those impeached. Second, the process and the final decision, which are invariably gets politicized by both sides, intentionally or unintentionally, can also have serious consequences. Besides, impeachments also tend to polarise society as seen in the current case where lawyers, most of whom ganged up initially against the appointment of the CJ, did a flip and screamed: “Doshoabiyogaya bangawewa” as the Chief Justice, Dr. Shirani Bandaranayake, was about to leave for Hulftsdorp and face the Parliamentary Select Committee in Jayawardenepura. (The video of this demonstration of loyalty to the CJ by the kalu koat kerum karayas(KKKKS) is now circulating in cyber space. The Kalu Koat fans only stopped short of asking for her autograph!)

There were no signs among the KKKKs who milled round the CJ that they could trigger of a political revolt from Hulftsdorp. They were letting off a lot of hot air which seemed theatrical acts done more to register their faces for future reference with the CJ. It seems to be an act more of buying an insurance policy for their future than fighting for the independence of the judiciary.

They were yelling their lungs out, punching the air, as if the Supreme Court and the independence of the judiciary would collapse once Chief Justice goes to face the PSC in Parliament. But the history of the judiciary has shown that individual judges come and go and the Supreme Court and the independence of the judiciary (which has been fluctuating depending on who presides as the CJ) will go on marching as long as the people need a judiciary to adjudicate on their affairs.

Controversy over impeachment

Predictably, the passions roused in the impeachment of the CJ tend to split the community on political lines. The UNP, TNA, NGOs, the Western embassies, the KKKKs’s, left-wingers and the usual suspects in the anti-Government lobbies have lined up behind the CJ. (The signature placed by the doughty fighter on behalf of the nation, S. L. Gunasekera, has surprised many and he certainly must be having his own good reasons for him to go against the impeachment motion). Their general complaint is that the impeachment is a politically motivated act, or it is a vindictive act against the CJ who had given decisions against the government, or it violates the independence of the judiciary.

These accusations tend to divert attention from the main issue of CJ’s conduct. She faces 14 charges and there is a prima facie case which she has to answer and she in turn has filed her response. Her replies are circulating in web sites and, incidentally, this violates the Standing Orders. It could have come out only from the members of the opposition who are in her camp.

The leak is undoubtedly a politically motivated act to counter the charges faced by her. Both sides are engaged in secret campaigns against each other to win the moral high ground. But the Cheif Justice who is aware of the value of winning this campaign is not averse to winding down her car and smile for the camera as she moves up and down to Parliament. Besides, her mob jumping up and down at Hulftsdorp does not add to her stature of being above the lowest common denominator.

Moving on, it must be noted that there are several intertwining strands involved in the current controversy over the impeachment. All strands -- political, legal, financial, familial (i.e. CJ’s handling of her sister’s investments and her husband’s affairs), ideological, historical etc., -- weave through twists and turns into the single issue of the independence of the judiciary. Both sides are canvassing this issue. However, the critical phrase “independence of the judiciary” does not give judges the licence to act arbitrarily, impulsively, egotistically or arrogantly to boost their power and ego. The judges too are liable for any misconduct and it is to restrain and control the “misbehaviour and incapacity” of the judiciary that Article 107 is written into the Constitution.

CJ has made it clear that she is determined to fight back and has challenged the right of parliament to try her. This drags the whole issue deeper into murky politics. In principle it has come down to a contest between the judiciary and the parliament testing each other’s nerve to see who would blink first. The final outcome will draw the indelible parameters of the future powers of both branches of the state. The primary objective of judiciary led by the CJ is to cut down the powers of the Parliament and transfer them to the judiciary. Naturally, CJ’s team of lawyers is pushing with all their might to downgrade Parliament by increasing the powers of the judiciary. As it is there is a balance where the judiciary can try members of the legislature and the legislature can try members of the judiciary. Besides, there is no other provision to try and remove judges for misconduct or incompetence other than through impeachment by Parliament.

The legal strategy of the CJ’s team is to invoke Article 125 (7) and impress on the judges that the time has come for them to grab power to be a law unto themselves without any constraints from Parliament or any other source. The law as it stands right now has empowered the Parliament to try public officers like judges for misconduct. In fact Parliament has been accepted as the only means by which judges and presidents can be impeached for misconduct. Similar provisions exist in USA. For instance, the Congressmen in the Lower House impeaches the judges and the Senate in the Upper House sits in judgment. And if found guilty the accused is booted out with a two thirds vote in the Senate. The judiciary has no role in judging the impeached presidents or the judges. So the practice of the legislature turning into the prosecutor, judge, jury and the executioner is entrenched in the US impeachment process.

The 1978 Constitution of Sri Lanka grants the legislature the power of impeaching and trying the judges. The difference is that in US both houses are involved in the process. In Sri Lanka the process is confined to a select committee of the Parliament in which the government and the opposition are represented by their members.

In US the entire legislature participates in the proceedings while in Sri Lanka only a microcosm of the legislature is given powers to sit in judgement.

As things have evolved it is now apparent that the impeachment has resulted in a power struggle between the two gigantic forces determined to win. The politics of both sides is covered in legal jargon and cliches like “independence of the judiciary” etc. Nevertheless, there is much controversy as to whether the impeachment is a political process , or a judicial process, or both. Can the legislature sit in judgment over the judiciary? As shown above, this process has been tried and tested in the US Constitution and it has stood the test of time. In fact, it was the legislature that tried President Bill Clinton and not the judiciary. It is this power of Parliament that is contested by the CJ.

In Sri Lanka, at the eleventh hour, after the CJ was presented with 14 charges, issues of constitutionality, morality, legality have cropped up out of the blue. No one questioned the constitutionality earlier when President Premadasa was impeached by his own party. In the current crisis, one issue that has surfaced is whether the legislators can sit as judges of judges. In the case of President Premadasa hardly anyone questioned whether the Legislature can challenge the Executive. Now that the issue of whether the Legislataure can challenge the Judiciary has come, this should be balanced with the equally controversial issue of whether the CJ can appoint judges to judge her. Under the Constitution and as head of the Judicial Service Commission it is the CJ who appoints judges to hear cases.

Legal process

In fact, one of the charges she is facing is just that. Her decision to appoint herself into the court hearing a case in which her sister was involved is one of the issues that is canvassed in the 14 charges against her. Well, if the CJ can appoint judges to judge her, or if she can appoint herself into a case where her sister’s investments were involved what is wrong in Parliament appointing law-makers from both sides of the house to judge the judges?

Whatever questions may arise, isn’t a mechanism outside the judiciary necessary to judge the judges? And if the judges happens to be the law-makers, as stated in the law, let the process proceed until it is changed by the legal process.

For the judiciary to intervene to change the law ONLY when its head is facing charges doesn’t do much to raise the image of the judiciary as an impartial and objective institution willing to face the law faced by all other citizens. It certainly makes the CJ look like an Orwellian panjandrum who is more equal than the others before the law. If there is any move to change the law this is not the time to do it. It has to be changed after the impeachment charges are brought to a conclusion. How many accused has had the privilege of the legal fraternity standing up in court and outside court demanding that their client’s case should not be heard because the law and the charges are unfair? Which one of those lawyers fawning in front of the CJ will go to court and denounce the law and charges against their clients and move heaven and earth to stop the case?

Judiciary and legislature

On the contrary, will they charge their clients exorbitant fees and advise them to fight until their pockets run out of money and go to jail. It may not have occurred to the learned legal fraternity fighting for the CJ that they are indulging in a dangerous game where they are intervening to change the law in the middle of a case with the sole intent of giving a special advantage to their favoured client. This is like President D. B. Wijietunge ringing the insurance commissioner and asking him to issue an insurance policy to reimburse his constitutent whose house had burnt down to cinders a month before. You don’t buy insurance policies after the event. You buy it before the event hits you. Where is the rule of law and natural justice if a selected few are allowed to buy insurance after their assets have been reduced to ashes?

The rights and wrongs of Standing Order 78 A empowering the legislature to sit judgment over the judges is an issue that can be debated till the cows come home and it is up to the law-makers to change it or not. But, in the meantime, both the judiciary and the legislature must act according to the the law as it stands. In the submissions of K. Kanag-isvaran P.C. to the Court of Appeal he states the law as it stands.

He states: “ 7. The question posed by the Court of Appeal as to the ‘forum’ is predicated on an exigency arising from the provisions of Article 107(3) of the Constitution, which states: “Parliament shall by law or by Standing Orders (emphasis mine) provide for all matters relating to the presentation of such an address, including the procedure for the passing of a such resolution, the investigation and proof of the alleged misbehaviour or incapacity and the right of such Judge to appear and to be heard in person or by representative.”

According to 107 (3) cited by counsel for CJ, K. Kanag-isvaran, the Parliament has the option of deciding the issue by “law” OR (emphasis is mine) by “Standing Orders”. Which means that Standing Order 78A is recognised in law as a legal entity with the power to deal with all matters pertaining to an impeachment. Nowhere in law is this Standing Order excluded. The conjunction “or” gives equal status to PSC as that of a court of law.

But more importantly, Kang-isveran also states that the option of deciding the methodology is given exclusively to Parliament .

To quote him: “8. The Parliament has been given an option as to the methodology to be adopted for bringing to fruition the matters referred to in Article 107(3) including those relating to “…the forum before which the allegations are to be proved, the mode of proof, burden of proof, standard of proof etc., of any alleged misbehaviour or incapacity in addition to matters relating to the investigation of the alleged misbehaviour or incapacity?” This is ciritical in deciding who has the power to hear cases of impeachment. If the option is given only to Parliament -- he does not mention the “law” -- then it excludes the “law” as having the option to decide on hearing cases of impeachment.

Empower court

Lawyer Kanag-isvaran is absolutely clear that “the Parliament has been given an option as to the methodology to be adopted for bringing to fruition .....” matters related to impeachment. So his argument amounts to saying that the option given by law to Parliament should be removed and handed over to the courts.

In other words, he is insisting that the Courts must stage a legal coup to grab power from Parliament. The law as it exists does not provide the “law” to pick either the methodology or the means to bring to fruition matters pertaining to impeachment. According to him it is the Parliament that has been given the option to decide on the methodology.

Having conceded that the option has been given to Parliament -- mark you, not to the judiciary -- to decide on the methodology for hearing the case, he argues that the courts should now interpret under Article 125 (1) to give that option to the courts. In other words, he is attempting to empower court with a right to override Parliament and grab power exclusively to the courts. He is moving to legalise the power grab of the courts through an interpretation made by the courts for the enhancement of the powers of court.

This is a move to make the courts the law-maker instead of being an interpreter of the law.

It is a move for the courts to usurp the powers of Parliament through unwarranted, if not devious, judicial activism open under Article 125 (1) which enables subjective interpretation.

In the current climate, where the judiciary and the legislature are on head-on collision, it is a foregone conclusion that the courts would go all out to grab as much power as it could to override and subjugate Parliament to its will. The disguise of fighting for “the inedependence of the judiciary” is too transparent to hide the real objective: save the career of the CJ. But it is not here career that is going to save “the independence of the judiciary”. This cry is merely an act of fear-mongering. The independence of the judiciary depends of far greater forces than saving the seat of the CJ. She knows the law. Her own layers say that the “law” has no place in trying her. She must face the charges in the place where the law says she must face and then accept the outcome, whatever that may be.

Even though the law says that the option of who should hear the case is with Parliament Kanag-isveran argues in the court of Appeal that it is now “a matter of interpretation” as to who should hear the impeachment. Simply put, he is saying that the courts must engage in judicial activism to interpret the law in a manner that would reject the law enshrined in the Constitution and grab power from Parliament and hand it over to the courts to hear the case against the Chief Justice. He says: “9. The selection of whether it shall be by “law” or Standing Orders” thus became a matter of interpretation as articulated by the Court of Appeal in its reference made to Your Lordship’s Court under Article 125 (1) of the Constitution. On that selection it is respectfully submitted hangs the future of the independence of the judiciary.”

Dictatorship of judiciary

His conclusion is equally untenable. His logic is that “the independence of the judiciary” depends on the courts dismissing the prevailing law and grabbing power, which it does not have, from Parliament (1) to judge its own judges and (2) to dictate to the legislature. If the judiciary wins it would be the first step in paving the path for a dictatorship of the judiciary. By all known accounts the legal fraternity has just come out of of the reign terror under one Chief Justice without powers of restraint. The tyranny of a Chief Justice with absolute power, where only CJ’s own courts under the thumb of the CJ can judge the CJ, will be the very source of undermining the independence of the judiciary. It would be a disaster not only for the legal fraternity but to the nation as a whole.

In short, Kanag-isveran is asking the courts to interpret the law in favour of the CJ to remove and deny Parliament the right to exercise its option which it had exercised in the past on matters of impeachment ( e.g., President Premadasa). He is saying, in other words, that it is the courts that is competent to judge the misconduct of the judges (and in this case the very head of the courts) and not Parliament which is legally empowered to do so. His argument is summed up in the pithy Sinhalese idiom which says:”horagay amma-gen pay-na ahanna wagai.”

In any case, both the courts and Parliament can be accused of political partisanship. But since the impeachment involves the head of the judiciary, who appoints the judges who would sit in judgment over her, can the transfer of the hearing to courts make it seen to be more impartial and just than the Parliament? If the conduct of KKKKs in Hulftsdorp is any indication of the political tilt of the legal fraternity -- particularly with the CJ lapping up the adulation and the poojas -- then the courts must be written off as a fair and just means of hearing the case against the CJ.

In summary, lawyer Kang-iswaran’s argument amounts simply to this: we have been playing tennis so far with a net in the middle, but for the sake of the CJ we must now play tennis without the obstructing net.

This poses a serious question to the CJ: should she play tennis like all others with a net in the middle as required by the rules of the game or get out of courts?