The CJ is badly advised
Dr Kamal Wickremasinghe
It is becoming increasingly apparent that the ‘support group’ of the
Chief Justice (CJ) led by the godfather of the NGOs, J.C. Weliamuna, and
sections of the Bar Association of Sri Lanka connected to Wijedasa
Rajapkshe have botched the legal and procedural strategy of her case,
due mainly to their keenness to turn the impeachment into a rallying
point for anti-government protests.
First there was the major blunder of the walk out of the PSC hearing;
Then there was the request to the Speaker of Parliament to appoint an
external panel, a power that has not been bequeathed upon him by the
Constitution; Now a petition citing the Speaker, the PSC and the General
Secretary of Parliament, requesting a writ of certiorari to invalidate
the findings of the PSC which found her guilty of three charges.
The petition is the most cynical of all efforts to blow up the
impeachment issue into an ‘independence of judiciary’ issue. The
decision to file such a petition against the background of the Speaker’s
pronouncement in Parliament last month in response to a Supreme Court
shows that the motive is strategic rather than a desire to seek justice:
it has been designed with the objective of generating friction between
the Parliament and Judiciary.
The farcical frenzy following the decision of the three-judge Bench
of the Appellate Court that it has the jurisdiction to hear the
petition, and the issuance of orders to the Speaker and the PSC to
appear before the court on January 3, 2013, is bound to come to nothing
in the light of the Speaker’s previous declaration.
The excitement among the support group could only be based on
misreading, or failure to discern the nuances of language in the
Appellate Court decision. The supporters and the legal team have surely
missed the ‘sting in the tail’ of the decision that:
“This court is conscious of the of a ruling of the Honourable Speaker
on the notice issued by this court (in relation to another application
pending in this court) on the Hon Speaker and on the Members of the
Select Committee appointed by the Hon Speaker. Where Hon Speaker ruled:
“I declare that the purported Notice, issued to me and to the Members
of the Select Committee are a nullity and entail no legal consequences.
I wish to make it clear that this ruling of mine as Speaker of
Parliament, will apply to any similar purported Notice, Order or
Determination in respect of the proceedings of the Committee which will
continue solely and exclusively under the authority of Parliament.”
On this ruling of the Hon Speaker this Court wishes to have it placed
on record that the order to issue notice on the Respondents of this
application is nothing but a legal obligation on the part of the court
to afford the Respondents an opportunity of being heard, thus adhering
to the concept of audialterampartem.”
Parliament proceedings. File photo |
These two paragraphs clearly show that the Appellate Court was a)
fully aware of the Speaker’s position on any orders by them, and b) that
they were simply doing their job in terms of “hearing both sides” (audialterampartem).
To that extent, the Court decision confirms that the impeachment case
has incorporated the full content of the ‘due process’.
Any genuine incapacity to read the decision amounts to legal
ineptitude on the part of the legal team and such sloppiness, ironically
in a case involving the country’s CJ no less, shows that her defence has
turned into a ‘circus run from the monkey cage’!
US Judiciary is a bad example
The wasteful use of court’s time on purely a tactical move that did
not offer any prospects of furthering the CJ’s interests could only have
been adopted under instructions from advisors from interested foreign
embassies and her local NGO guardians. The advice is clearly based on
attempts to create tensions between the Legislature and the Judiciary,
similar to the experience in the US as they would well know; A sad
indictment on the strategic motives of the CJ’s self-appointed helpers.
The US experience in this area, just as feared by the drafters of the
Constitution, has turned out to be a hugely complicating factor in the
functioning of a democratic form of government: recognising the
necessity of judicial restraint, Thomas Jefferson wrote,“It is a very
dangerous doctrine to consider the judges as the ultimate arbiters of
all constitutional questions. It is one which would place us under the
despotism of an oligarchy.” James Madison wrote in The Federalist Papers
that to combine judicial power with executive and legislative authority
was the “very definition of tyranny.”
Abraham Lincoln warned in his first inaugural address in 1861: “if
the policy of the government affecting the whole people is to be
irrevocably fixed by decisions of the Supreme Court...the people will
have practically resigned their government into the hands of that
eminent tribunal.”
Such fears have largely been realised: the unchecked expansion of
power exercised by unelected judges usurping the policy making authority
is one of the most intractable contemporary constitutional issues
affecting the US democracy;The tendency of the US courts to nullify laws
passed by legislatures, those on fundamental issues relating to the
moral and religious views of the US society such as gun ownership and
abortion in particular, to reflect their own policy preferences has been
responsible for bad policy and given rise to difficulties of governance.
This is to be expected because courts are not designed to make broad
public policy: their decisions are bounded by the facts of particular
cases, and do not involve stakeholder consultation concerning the
possible ramifications of wide application.
Separation of power gone too far
The fabled Marbury v. Madison (1803) decision by John Marshall, often
cited by proponents of the doctrine of separation, demonstrates the
dangers of a Judiciary with its own policy agenda and the determination
to implement that agenda.
Marshall, the fourth Chief Justice of the US (1801-1835), was a man
with a reputation for being a cunning operator who represented vested
interests in the halls of power. He first replaced the Supreme Court
tradition of per seriatim opinions (judges reading his or her own
opinion and justification) with a ‘single opinion of the Court’, usually
written by himself, allowing the Supreme Court to project unity and
assert greater authority.
The brief summary of Marbury, one of the early cases of Marshall's
34-year tenure, is that William Marbury lost an appointment as a Justice
of the Peace (JP) by President Adams, just before he lost office. As it
happens in many countries, the appointment made by the outgoing
government was withheld by the newly elected government of President
Jefferson, specifically by the Secretary of State James Madison. Marbury
went to the Supreme Court,requesting that a writ of mandamus (a court
order compelling an official to take action) be issued to Madison to
commission him and several others as JPs. Chief Justice John Marshall
sent Madison a motion to show cause why the Supreme Court should not
grant Marbury's request. Madison ignored the court order.
Marshall ruled that William Marbury was legally entitled to his
commission as JP, and that the federal courts had jurisdiction over the
matter. However, Marshall also ruled that the Supreme Court lacked
original (trial) jurisdiction over the case due to lack of
Constitutional authority. He also ruled that Congress had overstepped
its authority granted by the Constitution in enacting the Judiciary Act
of 1789 that empowered the Supreme Court to issue writs of mandamus to
government officials. Marshall declared that section of the Act
unconstitutional, and ordered Marbury to refile his case in District
Court.
Legal analysts believe that Marshall’s deviously ‘brilliant’ decision
was based on his fears that a ruling in Marbury's favour would give rise
to a conflict with the Executive the Judiciary was unlikely to win. He
adopted a technique he was renowned for: giving his more powerful
opponents a minor victory that hid the far-reaching implications,his
true goals. Through Marbury Marshal achieved his goal of affirming the
right of judicial review.
Neither Jefferson nor Congress chose to fight Marshall over Marbury
because the decision “appeared” to support their interests. William
Marbury never refiled his case either.
Caught out by Marshall's trickery and judicial activism, Thomas
Jefferson later branded his intricate legal theories “twistifications.”
Congress and the Executive reacted to the intensifying power grab by the
Judiciary through constitutional amendments designed to override Supreme
Court decisions: the Eleventh (1793), the Thirteenth and the Fourteenth
(1857), the Sixteenth (1895), and the Twenty-sixth (1970)Amendments were
designed to overturn Supreme Court decisions.
The Supreme Court also faced instances of non acquiescence(the
intentional failure to comply with the decisions),especially from the
States: in 1832, the state of Georgia ignored the Supreme Court decision
in Worcester v. Georgia. President Andrew Jackson who sided with the
Georgia courts is supposed to have remarked, “John Marshall has made his
decision; now let him enforce it.”
The separation of power is not settled
Despite Marbury, the doctrine of separation of powers remains not
enshrined in the text of the US Constitution, but discerned by courts,
scholars and others. Many questions relating to the rules of statutory
interpretation cast doubt about the strength of the opinions on this
matter, based on interpretations of the “intent” of drafters of the US
Constitution.
It is often ignored by proponents of equal separation of power that
Article I of the US Constitution that lays down the powers of the
legislative branch is considerably more detailed and specific with
respect to the authority of and limits on Congress, compared with
Articles II and III which address the powers of the Executive and the
Judicial respectively; This is to be expected because the Legislature
deals with the overall powers of the elected government and other
branches. In the final analysis, other branches are instruments designed
to help the elected government achieve objectives favourable to the
people.
The ability of Congress and the Executive branch to regulate
immigration policy and practice through “plenary power”vested in the
Legislature (absolute power with no review of, or limitations upon, the
exercise of the power) is one example of the national interest
imperative being achieved through the Legislature.
Adopting the separation of power doctrine emanating from the US
Constitution without proper analysis of the significant doctrinal issues
that remain unaddressed, and in the face of the adverse impacts it has
had on the operation of the democratic form of government in the US is
unwise, to say the least.
Impeachment process is sound under the 1978 Constitution
Those who complain about alleged ‘unfairness’ of the Impeachment of
the CJ on the basis of deficiencies in the procedure laid out in the1978
Constitution need to accept the fundamental legal principle, as well as
the reality, that the Constitution, as is, remains the highest law in
Sri Lanka. The just concluded Impeachment process has not violated any
of the relevant laws as contained in the Constitution.
Any grievances relating to the legally valid procedure, and
suggestions for rectification need to be submitted to the government
through democratic processes of consultation since the Constitution
‘needs to be’ the foundation on which every area of civil, criminal, and
administrative law should function, as well as evolve,to reflect the
needs of the Sri Lankan people, represented by governments duly elected
by them.
The current 'protest' movement against CJ’s Impeachment, taken
against the background of the charges, the evidence and the legally
valid procedure that has been followed, appears a desperate attempt to
politicise the issue outside the legal arena. It will prove futile due
to lack of a valid legal foundation.
Charges that the Impeachment of CJ is an attack on the independence
of Judiciary reminds the age old rhetorical question in law:“Does the
arrest of a postman for murder by police violate a law against
obstructing the passage of the mail?” |