JUDGES should NOT PLAY POLITICS

Attorney-at-Law Dr. Prathiba Mahanamahewa :

Nadira GUNATILLEKE

According to the 1966 Civil and Political rights Convention, all have the right to do politics. But the judiciary is something special and a separate entity from everything else. In other countries in the world, we do not observe this trend of former CJs and higher court judges coming into politics. Cricketers, actors, lawyers etc come into politics, but, not CJs and judges.

This is because they have great respect for society and society respects them. A judge is everyone’s god and not the god of one religion or ethnicity. Therefore, impartiality, credibility, justice and everything must be respected. What matters is public confidence in the legal system. Former CJs and judges should set examples for politicians on acting independently, Dean of the Faculty of Law of the Kotelawela Defence University, Attorney-at-law, Dr. Prathiba Mahanamahewa said.

Attorney-at-Law Dr. Prathiba Mahanamahewa

Excerpts of the interview:

Q: Why is it that some people are only now talking about shortcomings of the relevant provisions of the 1978 Constitution related to impeachment motions after practicing it for 34 years?

A: In Sri Lanka, this is not the first time an impeachment motion has come up. The first impeachment against a Chief Justice (CJ) was in 1984 against Chief Justice Neville Samarakoon. Article 107 of the 1978 Constitution clearly states about the impeachment process. In that impeachment process, basically in 1984, they had to set up a committee to investigate the matter. Accordingly, they appointed a Special Parliamentary Commission.

That comprised seven members, three members from then opposition and four from then government. The three opposition members made a dissenting judgment.

They very clearly mentioned the loopholes and weaknesses in the provision.

We had more than enough time from 1978 to 2012 to rectify things. But no one was interested and no one noticed any problem. Only now all see problems. In between there were three more impeachment motions against three different CJs.

When late Prime Minister Sirimavo Bandaranaike’s civic rights were forcibly taken away, late Gamini Dissanayake mentioned that there were issues in the Standing Orders. But you cannot change Standing Orders overnight.

There is a procedure for that. Now the opposition says the Standing Orders violate the Constitution, but, I have to clearly state that the Parliamentary Select Committee (PSC) is not a Court or a Tribunal. The PSC only handles the preliminary investigation. Even the decision given by the PSC is not the final decision. The 1978 Constitution has four clear tiers.

The first one is the requirement of 113 signatures. No arguments can be brought about signing. Then the details of the impeachment motion sent to the Speaker. Then it has to be examined and included into the Order Paper if all requirements are met. To investigate the matter, a PSC should be appointed. According to the dissenting decision made by late Speaker Anura Bandaranaike it is not binding by a court decision.

The Opposition Leader made a marvelous statement requesting that the same dissenting decision, system made by late Anura Bandaranaike be followed.

If there is system that is already accepted system, you have to follow it. According to 78 A order, within one month the process should be completed and if you need more time you have to get the permission from Parliament. The relevant provisions are there. Article 107 specifically states that even the lawyers of the respondent judge of higher court or his/her lawyers be given the opportunity to present the facts. This was allowed.

Q: Explain the relevant provisions for impeachment motions in the Constitutions of some key democratic countries, such as, the US, UK, India etc.

Parliament, seat of democracy

A: All countries have relevant laws in connection with impeachment motions. But in all countries, the final decision in connection with an impeachment motion is being made in the Parliament and not anywhere else or by anybody else.

If you take the USA, its Constitution is very clear about bringing impeachment motions against higher court judges. The first impeachment motion was brought against a Supreme Court judge in 1851. The US Congress is similar to the Sri Lankan Parliament. The Congress members present the impeachment motion and thereafter the charges levelled against the judge, investigated by the Senate. That is how it is done according to US Constitution. The Senate is a part of the Parliament.

Then the judge goes to the Senate and gives evidence. It is the US Parliament which takes the final decision in connection with an impeachment motion. In India, there is the Lok Sabha and Raja Sabha. To impeach a judge, a resolution should be brought in just like it is done in Sri Lanka. One hundred Lok Sabha and 50 Raja Sabha members need to sign. If all required signatures are there, it is handed over to the Indian CJ and he conducts the investigation.

According Indian law of `Protecting Judges’ Rights’, a case against a higher court judge should go through a panel of judges. Even in India the case should be presented to the Lok Sabha and Raja Sabha after the investigation. A two thirds majority of the Lok Sabha and two thirds majority of the Raja Sabha are needed to remove a judge. Even if the investigation proves that the judge is innocent; the final decision is taken by the Indian Parliament. The Indian Parliament is supreme.

Let us look at the Australian system. There was a recent case against an Australian Higher Court judge. Signatures of the members of the Australian Parliament are required to bring an impeachment motion against a higher court judge. The investigation is done by a third party because of the law of protection of the rights of higher court judges. But finally it is presented to the Australian Parliament.

All over the world, it is the Parliament which takes the final decision in connection with an impeachment decision. In the UK, Parliament must come up with the resolution to remove a higher court judge. The investigation is done by a third party. But Parliament takes the final decision. It is the same process in Malaysia. The resolution comes from Parliament and is investigated by an International panel of judges.

The Sri Lankan system is the same. The only difference is the investigation is done by Parliament. It is our law. But our system goes further. That is the fourth tier of the system. After the debate, Parliament goes for a vote and a simple majority is required. But the process goes on. It does not end with the simple majority vote. The result of the vote is communicated to the Sri Lankan President. Without his order, we cannot remove a CJ. The Sri Lankan Constitution never states the President is bound by the final decision of Parliament. It does not end there.

That is why President Mahinda Rajapaksa immediately decided to appoint an independent committee according to the Sri Lankan Constitution.

It shows the depth of independence, reasonableness and democracy of our system. Sub section two of Article 107 of the Sri Lankan Constitution clearly says the CJ is removed only by a President’s order. The PSC decision is not binding on the President. The President’s actions are not undermining Parliament or the PSC.

The final decision is taken by the Sri Lankan President according to Article 107 of the 1978 Constitution. Late President J.R. Jayewardene did not practice the provisions of the 1978 Constitution to appoint an independent committee to look into the issue of late Prime Minister Sirimavo Bandaranaike.

But when it comes to impeaching a President, the scenario is different. The signatures of the Members of the Parliament are required to impeach a Sri Lankan President. But after obtaining signatures the case goes to the Supreme Court. This is clearly mentioned in the 1978 Constitution.

But in Article 107 in the J.R. Jayewardene’s Constitution, it never says that other impeachments should go to the Supreme Court.

This could have been rectified in March 1984. The present Opposition Leader and others were in government then, but they did not rectify it because they were driven by political motivations.

Q: Is it legal, justifiable, ethical and acceptable for key personalities in the judiciary coming into politics?

A: We worship our religious dignitaries. We worship our parents, teachers and elders. The third category we worship is judges. Judges are gods and we have to worship them. It is because they are impartial and neutral. Once they come into politics, they have to be biased and they become biased. This makes people suspicious. Their impartiality and unbiasedness are called in to question.

According to the 1966 Civil and Political Rights Convention, all have the right to do politics. But, the judiciary is something special and a separate entity from everything else. In other countries, we do not observe this trend of former CJs and judges coming into politics. Cricketers, actors, lawyers etc enter politics. But not CJs and judges because they are treated with respect in society. A judge is everyone’s god and not the god of one religion or ethnicity. Judges must act with impartiality, credibility and do justice in every aspect. The public should have confidence in the legal system.

Q: Do you see any connection between crimes and media reporting? If so, what can be done about it?

A: We do not have a media or journalism law in Sri Lanka. That is the main barrier. In the US, the media never shows bodies, body parts, blood etc even of hundred killed by gunmen or in any other way. In Norway, around 80 people were killed by a crazed gunman. No visuals were shown on television. When you show crimes on television, people get addicted to them. It is the mentality of some people. There is one fine example for this. When former Iraqi President Saddam Hussein was openly hanged, several children tried to commit suicide by hanging themselves. This is why we have to have a control over reporting crimes on television.

Therefore, why cannot we adopt media ethics that is healthy for the public? There are laws. Media ethics should be practiced. We have to think twice before reporting crimes. The public has the right to information. This is true. Nowadays, the media practices the freedom of expression more than ever. Now there is no limit for them. Here, religious leaders have a big role to play. Sri Lanka suffered from 30 years of terrorist war. During that time seeing bodies and blood etc were the order of the day. It was mental agony. All media heads, editors should meet and adopt a code of ethics and guidelines for themselves on reporting crime. It should not be done by law. They can take examples from other countries in the world.

Q: Any special message for the Sri Lankan decision makers and the general public?

A: There are 18 amendments to the present Sri Lankan Constitution (1978). Now terrorism is no more and investments are flowing into the country.

There should be a proper dialogue with the participation of politicians, professionals, civil society and all Sri Lankans to identify the weaknesses in all systems and to come up with a new constitution. This is the need of the hour.

It is pointless to talk about the 13th Amendment, 17th Amendment etc. After 30 years of conflict, we have peace now. This present Constitution was introduced in 1978 and the war started a few years later. The war lasted for 30 years. Why are we dragging this on? Parliament meets eight days per month and it can hold proceedings for another three days per month and bring reform proposals. Otherwise, tomorrow there may be another issue.

In 1990, when Nelson Mandela was released from prison, the very first thing he did was to look for the best Constitution for South Africa. He had billboards displayed all over towns to educate people about the new constitution. Every night, discussions were held with scholars, professionals etc. The time has come for us to forget about the past. Let us work as Sri Lankans.