Blunders committed by the government in the impeachment

| by Udaya Gammapila

( January 28, 2013, Colombo, Sri Lanka Guardian) The impeachment of the former Chief Justice has now been concluded. In an unprecedented move, it became a battle between the Legislature and the Judiciary. The Judiciary attempted to make it a boomerang for the Legislature. Nevertheless, the Legislature emerged victorious in the end. Whoever emerged as the victor, both sides sustained irreparable damages.

After perusing the charges against the ex-CJ, I was of the firm view that those should be investigated through an impeachment process. When the ex-CJ decided to use the Judiciary to interfere with her own disciplinary process, I concluded she was not suitable for the esteemed office. Hence, I wholeheartedly supported the impeachment since its early stages. As a pro-impeachment campaigner, I was critical about the role played by the opposition and the Judiciary. Not only the anti-impeachment campaign, but also pro-impeachment campaign committed several blunders. The time is appropriate for pro-impeachment campaigners to openly review their strategies and conduct since the impeachment is now over.

The first news about the impeachment reported by the media was there was a move to impeach the CJ since she did not tender her resignation when there was a pending case in the Magistrate Court against her husband. There is a natural justice legal concept called Nemo iudex in causa sua meaning ‘nobody should be a judge in their own case’. The underlying concept is “justice must not only be done but must be seen to be done”.

In the light of above concepts, Justice Bandaranayake should not hold office of the CJ when there is a pending case against her husband in a court which is under her direct supervision. However, for general public, it is unfair to remove the CJ for her husband’s misconduct. It appears to be a judgment decreed by our historical King Kekille. Further, people saw this principle as an instrument for the Executive to tame the Judiciary. If the Judiciary goes against the Executive, it can threaten that a legal action would be instituted against a family member of the CJ forcing her to tender her resignation.

Essentially a disciplinary process

Although the impeachment is essentially a disciplinary process, any governmental action contains a political aspect as well. Hence, a government should always be sensitive to the public opinion. The government should always be aware of the concerns of the middle class since they are the opinion makers in society. In this backdrop, the first news about the impeachment generated public sympathy towards her. Hence, the government should have raised curtains of the impeachment with a more palatable charge.

The JHU was strongly of the view the charge in respect of judging devolution-related cases should be the most prominent one. When Dr. Bandaranayake was appointed to the Supreme Court in 1996, there were several fundamental right applications against her appointment. Sinhala nationalists were also among these petitioners since they had a genuine concern. The government was secretly preparing a federal Constitution at that time. There was a rumour the government is in a conspiracy to introduce it avoiding a referendum being fully aware of the public verdict. When the government was in such an attempt, the Supreme Court is the sole saviour for the nationalists since the Supreme Court can direct the government to place the new Constitution before the people. Dr. Bandaranayake had openly identified with federal ideology. Obviously, the nationalists did not like to see judges in the Supreme Court who are biased towards federalism.

These petitions were heard before a seven-member bench. In the majority judgment, Justice Mark Fernando stated her political view and conduct did not constitute a disqualification for office, although, they may disqualify her from hearing particular cases. In other words, she is disqualified to hear cases in respect of devolution since she has supported federal ideology.

When she became the Chief Justice, she included herself in three panels which heard devolution-related cases and pronounced pro-devolution determinations. Supreme Court determinations regarding Town and Country Planning (Amendment) Act, Local Government Elections (Amendment) Act and Divi Neguma Act are these instances. Hence, not only has she violated a condition associated with her appointment but also the legal concept called Nemo iudex in causa sua mentioned above. People were observing the attempts made by the TNA and the CPA to pursue their federal agenda with the active support of the ex-CJ with shock and dismay. Hence, there is a strong ground for an impeachment which is palatable for general public.

Reverse the gains

We were successfully able to reverse the gains made by the Tamil separatism through terrorism. However, any gain made by Tamil separatists through judicial determinations cannot be reversed. Since Tamil separatism is still active both locally and internationally, people, especially the middle class, genuinely were concerned about the ex-CJ’s biased conduct. Hence, the government should have given prominence to this charge. However, it was only ranked 9th out of 14 charges.

The government thought it would lose the support of the minority communities for the impeachment, if it gave the prominence to this charge. However, there was no reason for the minorities to be disturbed. This charge does not say the ex-CJ should be removed since she was pro-devolution. It only says that she had been biased and violated a condition of her appointment.

Fortunately, we were able to push the misconduct of the husband to 5th place and to bring her misconduct in Golden Key cases to the forefront. By then, there were several depositors who had committed suicide, become paralyzed or insane. Hence, there was sympathy towards Golden Key depositors in society. Because of the yeoman service rendered by the Golden Key Depositors’ Association, the government was able to take the impeachment to the public and to justify the government’s action to a great extent. In my opinion, if the government highlighted Justice Bandaranayake’s biased action towards federalism, the impeachment would have been more acceptable to the middle class.

The Opposition wanted to show the impeachment as an attempt to politicize the Judiciary. Then the government should have attempted to show the public it was a constitutionally provided disciplinary process. However, the lawyers and judges opposed the impeachment process with strikes and protest marches with the encouragement given by the Opposition. Their ulterior motive was to get a similar reaction from the government and make it a political issue. Unfortunately, the government got strangled in a trap set up by the Opposition.

If an accused is not in a position to prove his innocence in a disciplinary process, he will attempt to influence the disciplinary authority with other means. He arranges his wife and kids to weep before the authority pleading not to punish their father. He brings testimonials from the respected persons to influence the inquiry. He encourages his colleagues to picket in his support. However, the disciplinary authority never reacts to such conducts by way of organizing protests or pickets. Instead, they should go ahead with its task. Unfortunately, the government did not do so in the impeachment.

When there were protests opposing the impeachment, the disciplinary authority responded with the same kind of protests. Although professionals such as lawyers were participating in the opposing protests, responding protests were full of members of the lowest strata of the society. They had no knowledge of the impeachment. Hence, they made a mockery of themselves by making statements to the media. I do not intend to insult those participants. However, the impeachment is necessarily a middle class issue. Hence, these protests further disturbed and distanced the middle class from the government.

S.L. Gunasekara is a highly respected person in the middle class. His opposition to the impeachment was the biggest blow to the government. When a person of such high standing comes to defend the accused, the government should have forwarded a person of the same calibre to attack the accused. Unfortunately, it was Minister Mervyn Silva who came forward to attack the accused. Obviously, he is the least respected politician by the middle class. I am personally aware of the several eminent personalities who decided to oppose the impeachment because of Mervyn Silva.

I am of the opinion the disciplinary authority should not have held protests. Instead it should have been critical about the protests organized for the accused since those were amount to politicization of the Judiciary. There were five impeachments against the Supreme Court judges. In none of those incidents, did the opposition, lawyers or judges behave in this irresponsible manner.

If holding protests were inevitable, the government should have organized protests with a crowd matching the lawyers. In this respect, protests of Golden Key depositors played a positive role. If there was a massive Satyagraha of Buddhist monks against the pro-federal judicial role of the ex-CJ, it would have made an everlasting impact on society.