Legislature cuts the Judiciary down to size

H.L.D. Mahindapala

Let's face the reality as it is in our faces now.

Both sides have taken their gloves off and are fighting with bare knuckles. The judiciary has taken its glove off and dropped all pretences of fighting for "the independence of the judiciary". It is now fighting in Courts for the survival of the Chief Justice, Dr. Shirani Bandaranayake. The Speaker, Chamal Rajapaksa, too did not mince his words in Parliament when he told the Judiciary on Thursday to back off and mind its own damn business, without, of course, saying so directly.

The unravelling developments, however, indicate that it is the Judiciary that is buckling at the knees. For instance, despite its bravado the CJ appeared before the Parliamentary Select Committee to face the 14 charges levelled against her.

This is a very significant move loaded with meaning. With her appearance she has conceded, in essence, the right of Parliament to hear her case. If she was legally certain that the Parliament has no right she would not -- knowing the law as she does -- appear before Parliament. If the law was on her side, as she claims it to be, then she should have taken the courageous stand of telling Parliament to fly a kite by the lake. In matters like impeachment, the contestants do not act on principles of courtesies.

These are matters of life and death and those involved stand by their principles -- legal or otherwise -- come what may. At least, this is what the neutral public would expect from those in exalted positions, claiming exclusive proprietorial rights to the moral high ground.

Besides, in a head-on collision like the one she is facing now, every act has a political, legal and moral meaning.

And the meaning she has conveyed by appearing before the PSC is that she has no solid legal rights to reject the call from Parliament to appear before it on the appointed day. It was the Judiciary that decided to contest the right of the Parliament to try the CJ and the CJ made her first move by appearing before a "court" which she says is illegal. Either she doesn't know the law or she is openly admitting that she is on shaky legal grounds and, therefore, she has no alternative but to appear before the PSC.

Speaker's message

So the first round goes to Parliament.

The second round is more pugilistic and pugnacious.

The Speaker, Chamal Rajapaksa, stepping out of his corner, has dealt an upper cut that has floored the Judiciary for the second time.

The first time was when the former Speaker, Anura Bandaranaike, knocked down the Judiciary when it tried to step into the jealously guarded precincts' of the Parliament. Following in his footsteps Speaker Rajapaksa had with one unmistakeable blow knocked down the Judiciary for good. This might even lead the law-makers to redefine the contested law to make it clear to the judiciary where it stands in relation to the Parliament and its procedures. At least, they should do so now to keep the meddlesome Judiciary out of their hair.

All this has placed the Judiciary in no-man's land. What will the Judiciary do now that the Speaker has clearly told the Courts to get off the back of Parliament and find a job some where else? Speaker's message to the Courts is unambiguous and decisive.

Moreover, he has the backing of the main opposition party, UNP. It is a formidable front which can block any moves of the Judiciary to invade the Parliament. The established precedents that have consolidated itself into an unshakeable convention is very clear: Parliament will not give in to intruders trying to muscle their way into the legislature. This places the Judiciary in a very awkward, if not a defeated corner, particularly after it decided to roll up its sleeves and take on the Parliament.

The Speaker's statement was forthright and firm. It reflects just not only the full force of the political power behind him. Practically, the whole House is behind him. It goes beyond that to confirm the legal power enshrined in Parliament to determine its own course and that of the nation, without external interventionists dabbling in its internal affairs. In other words, he is saying that in a contest between the Judiciary and the Legislature the Parliament is supreme. This, of course, does not mean that it is the death of the separation of powers, or the end of the independence of the judiciary. The overlapping of powers will continue to be contested by both parties in the future too. But it certainly means the end of judicial adventurism to grab power which it does not have in law.

In Article 107 (3) the framers of the Constitution had invested power of trying judges in superior courts in Standing Order 78 A. This, however, can be contested as seen in the action of CJ. Of course, Standing Order 78 A, which had not been questioned before by the CJ, or her patrons like the former President Chandrika Kumaratunga, now stands as a direct threat to the seat she holds in the Courts. It is natural for her to fight to retain the seat and invoking the popular and fashionable theory of "the independence of the judiciary" is as good enough any other available reason. But it is incumbent upon her too to abide by the law as it stands now, particularly after she and all those behind her had been silent on this Standing Order up until now. The worst case scenario is President Kumaratunga who used 78 A against the former Chief Justice Sarath Silva and then denouncing it now to protect her protégé, Dr. Bandaranayke.

CJ's legal team

The fuss over 78A is much ado about nothing. What is contained in Standing Orders 78 A are the mechanistic details as to how Article 107 (3) can be enforced. The untouchable legal principle recognising Standing Order 78 A as the instrument for judging judges has been spelt out in black and white in Article 107 (3). Standing Order 78 A is inextricably linked to Article 107 (3. Standing Order 78 A is the gun that delivers the legal force to the law enshrined in Article 107 (3).

If, however, there is an interpretation, as requested by CJ's legal team, to grab the legally enshrined power in the Parliamentary Select Committee and hand it over to the Judiciary the backlash would be severe. First, how is the Judiciary going to hang on or implement a partisan judgment that goes against the expressed intent of the law and the will of the Parliament? How can the Judiciary implement the decision without the consent and cooperation of the Legislature? Who is going to force Parliament to hand over its power to an outsider? And, above all, what is the legality of an interpretation that goes against the law written unequivocally into the statute book? Will not that be a political interpretation biased in favour of the CJ to preserve her seat which, of course, is disguised as "independence of the judiciary".

As stated many time earlier, the independence of the judiciary will not end with the CJ facing charges before the duly appointed "court". If the law is observed as it stands and as it should be -- and that is the fundamental obligation of the judiciary -- then the Judiciary will have the grand opportunity of not only doing justice but also making sure that justice is also seen to be done.

Supreme Court

Finally, the strengths of the Judiciary and Legislature are expressed in the tone and the language used by both in this contest. The Supreme Court used very cautious language in making the request to Parliament to wait till the Courts had arrived at a decision on the issues raised in court. Besides, the request was also delivered in very mild and courteous tones. It was a clear sign that it had no authority to do so but, nevertheless, was kindly appealing to Parliament to consider their request.

The Speaker, on the other hand, was very assertive. He wanted to convey that he was standing on unshakeable grounds. He wanted to make sure that the Judiciary got the message without any ambiguity. He said: "On careful consideration of this matter, I wish to convey to the House my ruling that the Notices issued on me, as Speaker of Parliament, and on the Members of the Select Committee appointed by me, have no effect whatever and are not recognized in any manner.

I declare that the purported Notices, issued to me and to the Members of Select Committee are a nullity and entail no legal consequences.

I wish to make is clear that this ruling of mine as Speaker of Parliament, will apply to any similar purported Notice, Order of Determination in respect of the proceedings of the Committee which will continue solely and exclusively under the authority of "

One bit of oral evidence I've heard from Hulftsdorp can be relevant to new reality. A lawyer friend of mine told me that S. J. V. Chelvanayakam was in the habit of pulling out his ear plugs after he had made his submissions to court, hoping to deflate and demoralise the counsel on the other side. Unless the Judiciary intends to emulate Chelvanayakam by closeting itself inside a sound-proof chamber, fitted also with ear plugs to confront the world around it, the message should have penetrated the cranium by now. It is Chelvanayakam's deaf refusal to take cognisance of what the Sinhalese had to say that made him the "Thanthai" (father) of all the Jaffna Tamils whom he dragged to Nandikadal.

Poised on the brink of another unwanted crisis the nation can only hope that the Judiciary will not turn a deaf ear to the voice of the law, if not to the voice of the inevitable. It's gamble against the Legislature is not taking it anywhere. It's time the Judiciary accepted the law which it is sworn to do before man and law.