Impeaching the Chief Justice and Sri Lankan Politics

| by Upul Abeyrathne1

“All are accordingly bound by the necessity of keeping the law, unless perchance there is any who can be thought to have been given the license of wrong-doing. However, it is said that the prince absolved from obligations of the law, but it is not true in the sense that it is lawful for him to do unjust acts, but only in the sense that his character should be such as to cause him to practice equity not through fear of penalties of the law but through the love of justice”.- John of Salisbury, (1927)

Introduction
( July 29, 2013, Colombo, Sri Lanka Guardian) The objective of this presentation is to read the political fiasco created through the impeachment motion against the chief justice Dr. Sriyani Bandaranayake of Sri Lanka. The present reading is different from many of the readings done by eminent lawyers and many legal professional. The present reading is essentially from a perspective of political theory and science. There are a plenty of scholarly readings over this incidence allowing the question to be raised whether there is anything new to be said about this fiasco. However, the present study is based on a belief that there are many things that need be said of this fiasco from a moral political theoretical point of view.

It shall have to be pointed out that the discussions over the impeachment of Chief Justice Sriyani Bandaranayake had ignored the simple fact, i.e. the judiciary is part and parcel of the government of the country. None had paid attention to this dimension in their discussions over the above politically important incidence. Secondly, many had forgotten the policy functions of the of the judiciary.

The objective of the present study is to explore the relationship between the policy function of the judiciary and the policy functions of the rest of the organ of the government, i.e. the legislature and the executive. It also examines the factors and processes that lead to conflict between the organs of government. It is based on the fact that the constitutional dictatorship created under the constitution is a contributory factor to the degeneration of the democratic institutions in the country. The constitution has created constitutional incentives for the judges and other practicing lawyers to go after executive for appointment, promotion etc. It has paved the way for power games among the judges in the higher courts in Sri Lanka. This had link judges with the dictatorial appetites of the president and known or unknown alliance of judges with the executive. The very rationale of constitutional dictatorship has paved the way for the country to experience a process of expanding a minor tyrannical to an excessive tyrannical rule. In this context, an examination of the role of judges, by extension the role of judiciary, warrants a scholarly treatment at the first instance.

Judges’ Role in a Democracy

The literature reveals that decision making by judges cannot avoid the incidence of political implication2. It is inevitable, specifically when hard cases come to be decided by the sitting judges in the bench3. It is mainly due to the lack of clear cut rules in the rule book to be followed in reaching the decision. There is no agreement among the practicing lawyers and academic professionals over how a judge should and do decide the hard cases and whether judges do make political decisions in democracies. The British tradition upholds a technical view point in this regard. According to this tradition, the judges have to follow the rules given in the rule book. Jurists who approach the problem from a normative perspective argue that judges should decided hard cases in a political manner because the ultimate aim of the law is the justice in a democracy4. However, many of the studies that examine the decisions through empirical evidence had suggested having some political implications in the decisions is inevitable as they create approvers and disapprovers of the nature and content of such decisions made by the judges. One could bring out an example situation as follows: Supreme Court has to decide important constitutional issues and interpretation of the constitution and also important political issues such as should a criminal has the procedural rights that make law enforcement more difficult by the executive departments for the maintenance of law and order in a given society5. However, the real question is whether judges should decided cases on political grounds? Such cases involve a deciding of cases on the assumptions that certain political morality is right. However, it also be noted that when a judge decide on political ground, he is not deciding the case on the line of party politics but on the ground fact of the political principle which she or he believes in. The conventional British answers to this type of question are that judge should not decide on political grounds. However, J.A.G. Griffiths, in his polemical book “politics of Judiciary” has shown that many of the decision taken by the Privy council is more and more political decisions even though that the court is at pain to prove that they had arrived decision on legal and technical grounds. According to Griffith, political decision by bench is unavoidable in a capitalist or semi capitalist system of Democracy6. However, many scholars that belong to the legal tradition of the United States of America opine judges make political decisions and they have to make political decisions within the interstices of the decision of the legislature. There is general tendency among the public to accept political jurisprudence. Following Griffith, the author of this paper is of the opinion that the debate of the political decision making process has been dismally failed to grasp one important distinction between decision made on political principles and political policy. When a judge arrive at a decision based on political principles, he or he is conscious of the rights of individual and Groups of Citizens7. When a judge make a decision on political principles, it implies that he or she is upholding a certain moral principle in which she or he believes in. Political policy upheld that a particular decision will work to promote some conception of general welfare or public interest. Such decisions are, essentially partisan and conflict prone. Griffith is of the opinion that judges should decide cases based on political principle. However, taking decision based on political decision may lead to disagreement once again in the society as there is no agreement in society as to what constitutes morally sound principle. The other dimension of the problem is that political issues are not mere technical issues that can be resolved by expert alone8. To avoid this problem seems to be adapting a principled approach to hard cases whenever faced by judges. The principled approached is seemed to be the best option, because, it is commonly accepted that present day government is a public trust created through a social contract. The constitution can be read out as the document in which the most basic agreement of the members of a given political community is included. Hence, judges should look into the constitutional policy to glean the principled political principles to decide the hard cases emerged in a given political community.

The Sri Lankan case of impeaching chief justice Dr. Sriyani Bandaranayake is also has raised the issue of what constitute the rule of law. So, it is pertinent to deliberate on the ways of reading over rule of law.

Rule of Law
Most of the people believe that there is a political ideal called rule of law. However, they disagree over what this political ideal is. The literature helps us to identify two broad way of defining rule of law. They are as follows:
  1. Rule Book Conception of Law
  2. Substantive Conception9.
Rule book conception insists that so far as it is possible, the power of the state should never be exercised against individual citizens except in accordance with rules explicitly set in the public rule book available to all. Government and public are to act according to public rule until they are changed according to further rules about how they are to be changed. This conception is very narrow because it is silent on the content of the rules that may be put in the book. However, it is emphasized that whatever put in the rule book to be followed irrespective whatever the conscience of a judge says. Substantive justice conception on the other hand, is an independent ideal. In no sense, it is a part of Rule book conception. It is been called as the rule of the law “right conception”. The essence of this conception is that citizens have moral rights and duties with respect to one another and political rights against the state as whole. These moral rights to be recognized in positive law and they can be enforced on demands by individual citizen through courts or other judicial institutions. It emphasizes that rule of the rule book shall have to incorporate these ideals. The histories of different nation states which comprised of many ethnic nations have proved that it is dangerous as such an approach have got the capacity of oppressive ruling by law10. It is also equally applicable in societies which have got dictatorial and tyrannical tendencies via electoral politics which resort to culture and playing politics on moral registry11. In a situation of playing politics on moral registry, we/they distinction on material grounds tends to evaporate and it is being replaced by who is right and wrong. There are some fault lines in the “ Right conception” of rule of law. They are as follows:
1. A state may fail in the scope of rights that it purports to enforce. It may decline to enforce right against itself.
2. It might fail in the accuracy of right it recognizes. It may provide right against it but through official mistake might fail to recognize important rights like procedural justice such as the case in impeaching chief justice Sriyani Bandaranayake.
3. It might fail in the fairness of its enforcement of rights. It might adopt unfair rules that might put the disadvantageous at disadvantageous positions.
The characteristic failures of the two concepts suggest that the two conceptions of rule of law should work auxiliary to each other. Both are needed for just society. However, Rule book is not sufficient for just society if rules are unjust. Compliance with rule may lead to greater injustice and tyrannical rule by law. After discussing the two major approaches to Rule of Law, it is pertinent to explore the hindrances to rule of law in Sri Lanka.

Constitutional and legal impediments over Rule of Law
The literature on Sri Lankan system of law and politics reveals twin hindrances or barriers for the practice of rule of the law. First is related to the rule book itself. Second is the political influence on the judiciary. Both are interconnected.

The founding fathers as well as present government supporter of the impeachment motion against chief justice had pointed out that the present constitution has strengthened the position of the judiciary and had incorporated measures to assure rule of law. (Article 105, Constitution of the Democratic Socialist Republic of Sri Lanka). Article 116(1) of the constitution stipulates that judges are to exercise their power without being subjected to any direction or interference proceeding from any other person except a superior court……. entitled under law to direct or supervise such judges. Further, at glance, it is also clear that fathers of the constitution have embraced the principle of separation of powers in making the constituent organ of the government. Late, Dr. N. M. Perara, reading in between the line of the constitution had pointed out that the acceptance of such and such democratic principles under the 1978 constitution remains only decoration to the constitution whose ultimate objective was to tailor make a political system for the fancies and whims of then President J.R. Jayawardene. The presidency created under the guidance of J.R. Jayawardene is a dictatorship through constitutional means. On the other hand, he also had observed that the language and content of the constitution is a masterpiece of obscurity. All of the above decorations to the constitution and obscurities of the provisions in the constitution have been to appease the appetite of a person who had aspired to be the unchallengeable key figure in the political scenario in Sri Lanka12. Accordingly, the constitutional decorations which were to show and to deceive people that they practice and respect rule of law had become unacceptable and intolerable. Unwillingness to tolerate alternative centres of power by the then United National Party Government had exemplified through the introduction of the article 163 of the new constitution. It has terminated the service of the 19 judges of the Supreme Court and the High Court by requiring them to take a new oath. Some of the junior judges had been promoted while demoting the senior judges. Seven of the previous judges were not appointed at all either to Supreme Court or Court of Appeal. Immediately after enacting the constitution, United National Party had made politics a Spoils system. The police, a supportive organ in maintaining law and order in a democracy had been converted to an instrument of oppressing the political dissent. When court intervened to remedy the fundamental right violation, the houses of the judges had been stoned in 1983. Once again, in the same year, judges have been asked to take a new oath through the sixth amendment to the constitution signaling the fragility of their tenure. In 1984, then government had impeached the chief justice even though it has not reached to the stage of final conclusion. All those steps had been instances of signaling the consequences, a judge has to face, if a one is acting true to consciences and law and adamant in the face of lay politicians. The above fear psychosis created by the constitution itself has prevented judges in deciding hard cases on principled political principles of the constitution13. The irony of the Sri Lankan constitution is the incorporation of constitutional policies which promote democracy as well as tyrannical rule simultaneously. The constitution provisions which are essentially meant for a tyrannical rule created through democratic electoral process tends to conflict with decisions of the Supreme Court if judges decided hard cases on the principled principles in the constitution. This, in term, has resulted in selective application of the rule of law in deciding politically significant cases by the judges. The de-merger of North and Eastern Provinces by a bench headed by former chief justice Sarath Nanda Silva is clear incidence of ideological apparatus of the ruling regime.

The dictatorial appetite of the rulers was given a chance to make judges compromise the principles in the constitution. This is largely due to the power of appointing judges to superior court by the president alone. The upholding of the marshal courts as proper courts recognized under the constitution of Sri Lanka and the ruling over the 18th amendment can be read as such compromises reached by the executive and the judiciary which were meant to act independently of each other and work separately. The original provisions in the 1978 constitution did not recognize any check and balances for the appointment made by the president even though the constitution is based upon the principle of separation of powers between the three organs of government. The 17th Amendment to the constitution was whistling in dark and it was intended to create checks and balances to the unfettered power of the president over the judiciary as well as the judicial service commission through the power of appointment. The constitutional council was intended to seriously go through the nomination for the appointment to higher judiciary of the country and judicial service commission among others, by the president. It was made impossible for the president to make appointment without the concurrence of the constitutional council by this amendment.

The notorious political influence by the president over hard cases before the Supreme Court and other lower level courts via chief justice is already well documented14. The all of the presidents, since the enactment of the Second Republican constitution had attempted to make undue influences over the judiciary. The specificity of the Sri Lankan case is the hardening of political influence over judiciary by every successive president15 be his/her public image is more democratic or not. The 18th Amendment to the constitution marked the culmination of tyrannical tendency of the Sri Lankan Political process. It had removed the two term restrictions placed upon the individual who becomes the president and created a non for nothing institution called the “parliamentary council” in the place of constitutional council. Its sole purpose seems to be the pseudo-representation of the system as democratic and as mechanism of check and balance over the presidential power of appointment. As justice Wigneswaran, had observed, the essence of the 1978 constitution is the “rolling all roles into one person”. The 18th amendment to the constitution can be read as the wiping out of the anything left for the parliament. In other words, the said to be democratic post of president has been transformed into modern kingship. In fact, one Late J.R.Jayawardene said he is the last of the lineage of the Royalty in Sri Lanka. The specific character of the kingship is that can used to distinguish from the other forms of government. The president is enjoying legal immunity offered to a king. Article 35 of the 1978 constitution has provided immunity to president implying that he cannot be sued in any of the courts in Sri Lanka. The specificity of the king cult in Sri Lankan tradition is representation of the king as the most benevolent human being in the society and he is concerned much on the welfare of the people. However, it is also the easiest form of government that is prone to become the corrupted forms of government. St. Thomas Aquinas had observed long back “When king’s rule degenerates, it becomes a tyrant who cares for nothing, be they moral or religious virtues. They present them to be virtuous but only think of his well being. His court men are tolerated for whatever wrong done to the individual citizens or public at large. The modern kingship and the converted or degenerated form of it, the tyranny and political control by lumphenised institutions such as legislature and other public institution are the most threatening forces to the very existence of democracy. There many occasions that law enforcing institutions had been used to curry favour lumpens who support the tyrannical rule such the paying blind eyes to the criminal suspects like Dulampitye Amare and parliamentarians who engage in gang to rig votes of the people in times of elections. These are external dimensions of the threat to rule of law and democracy. They had been instrumental in transforming democratic institutions to the instruments of tyrannical rule.

In fact it was the enactment of 1972 first republican constitution that marked the end of democratic governance in Sri Lanka and post 1972 period is the history of country moving from a minor tyranny to exclusive tyranny and the judiciary in Sri Lanka has been instrumental in making the country to be rule under a modern form of tyranny.

Characteristics of Modern Tyranny
Most of the champions of independence of judiciary had attempted to read and reread Montesque’s “The spirit of laws” at the cost of ignoring one of his important insights in understanding the tyrannical rule. He had observed that cruel rulers do not rule by mere cruelty. They convert rules or laws instruments of oppressive rule and rule of law get replaced by the rule by law. The characteristic feature of totalitarian rule is high level of concentration of power in one individual and he totalized all the power on to him16. In addition to that they also employ culture and cultural politics to justify totalitarian rule. However, this reading of tyrannical rule missed the role of rule books and the capacity of maintaining tyrannical rule through the medium of law. They employ law to strengthen totalitarian rule by enacting new laws and greater utilization of existing oppressive laws enacted generations ago sometimes by oppressive regimes such as colonial masters etc. One another characteristic feature of modern tyrannical rule is the greater utilization of lumphen in silencing democratic dissent. Lumphen layer of a society that is composed of individuals who earn easy money through illicit activities such as drug trafficking. Many had observed close relationships between lumphens and modern tyrant because they are a useful asset for an oppressive regime to make intimidation over individuals and groups and even on institutions that hinders the whims of the tyrant. The tyrant needs law to control them when they overstep the competency as decided by the tyrant and to silence democratic dissent whenever it gets currency17 There are a large number of Members of Parliament, Members of Provincial Councils, and many mayors and chairmen of local government bodies with proven track record of crime and link with the underworld. This is the external environment in which the judiciary has to function under a tyrannical rule. Tyrant knows no limits to its power. When any institution strives to protect democracy, institution and individuals therein become the cursive points of the ruler.

Can we stop at this conclusion by whitewashing the judiciary?. I suggest to say no because a reading of the decisions of the judiciary revealed a considerable contribution by the judiciary for the erosion of faith in the democratic institutions by the people of the country. Judiciary has contributed in the Sri Lanka’s transformation from a democracy to a Minor Tyranny and to an Exclusive Tyranny culminated with the introduction of 18th amendment to the constitution.

Journey from Minor Tyranny to Excessive Tyranny
Moving of Sri Lankan political process towards a cult of king after the war through cultural mechanism and hired or “sold themselves intellectuals” has provided justification of excessive personification of power in the post of president and portraying of the president as a benevolent king through invention and reinvention of history has made many people seduced. The judiciary is no exception in this context. In fact this process started with the introduction of the first republican constitution which has been pointed as a great achievement in the process of realizing political independence. The process of making republican constitution has marked the start of the degenerated phase of democracy which is the unintended but invaluable gift of the colonial administration in the country. I suggests that It was the year in which Sri Lanka became a republic with the seeds of tyrannical tendency. The tyrannical appetite of Sri Lanka Freedom Party as well as its leader Ms. Sirimavo Bandaranayake had been incorporated into the constitution through the provision with regard to the provisions on the nominal presidency and unethical extension of the term of the legislature. Montesquieu has observed that a tyranny once took off in the political process, it is difficult to replace. The struggle for his replacement requires enormous power and energy. The one who capable of replacement of tyrant knows the predecessor’s weakness forecloses any of such for his political opponents. This implies the converting a minor tyranny into an excessive tyranny. The tyrannical tendencies of that constitution include the provision related to appointment and removal of the nominal presidency created under the constitution and the provisions related to the judiciary and public services. In this, case supreme court did not exercise its proper power vested in it and took hand-in-hand in making Sri Lanka a chauvinist state and contributed to the growing uneasy ethnic relations and also paved the way for a more oppressive and tyrannical rule in Sri Lanka. The above constitution making exercise had been challenged twice but in vain due to judicial blessing of the process.

Election of United National Party with a Huge Majority in parliament under the leadership of J.R. Jayawardene marked a one stage forward in the process of making excessive tyranny through constitutional means. What Sri Lankan presidents is a constitutionally established tyranny. The characteristic feature of this type of tyrannical rule is that it oppresses the people through law and in the name of the law which was previously assumed to be a democratic institution. Normally, the first casualty of rule by the law approach is the judiciary itself. The transitional provision in the constitution (Article 163) read as follow: “ All the judges of the Supreme Court and High Court established by the administration of justice law no. 44 of 1973 holding office on the day immediately before the commencement of the constitution ceased to hold office. The objective of the provision is the assuring the president could control the judiciary through his appointment power and future judges and the one who aspire promotions has to dance to the tune of president. The Article 164 stated that all minor judicial officers and such officers and employees could continue in service or hold office on appointment under same terms conditions as before. The reading in between the line of the two provisions helps to grasp the rationale of a tyrant who replaced a tyrant. The new tyrant wanted a judiciary of his men and it is a signification of the conduct expected from a judge of the lower courts, if he/she desirous of getting promotion. It implies that one has to show his allegiance to the ruler by words and deeds. All of the heads of the states has got the ceremonial power to pardon the convicted criminals. However, civilized communities and leaders do not use this power to curry favour with criminals and wrong doers against the public moral and people who exploit the public perk. All most all the presidents starting with J.R.Jayawardene have resorted to this power as a political weapon to silence opponents as well as to favour friends. The presidents before Mahinda Rajapakse did not use this power applicable to the cases pending in courts. They had used it to the cases which had been decided and convicted. President Rajapakse is using this power to protect individual with criminal records and wrong doers to the public moral. The attorney-general’s department is no more an independent institution. It has been under the presidential control. The department is used as political weapon under the new president. The democratic institutions of public space seems to have stopped giving opportunities to the dissenting ideas of the political community and media personnel has become brainwashers of the public rather than working as the guarding of democracy and political educator. Culture and religious rivalries are being promoted to diffract public attention from the real issues of rising cost of living etc. Parochial tendencies are promoted over modern and democratic ideals. The thugs are left from the legal process and cases have been withdrawn according to the whims of the ruler.

Under a modern form of tyrannical rule, the other organ of the government has become mere appendages of the President. The Second Amendment introduced under the first republican constitution has changed the essential character of Cabinet Form of Government. According to the First Republican Constitution, the Executive power was to exercise by the president and the Cabinet of Ministers. However, after the second amendment, executive is to rest solely in the president. Under this system, the presidency is not a creation of the legislature. It is the catalyst to the second republican constitution. It has transform the essential character of the executive from being a creature of the executive to that of a controller of the legislature. The range of powers given to president with regard to legislature and cabinet of ministers and other ministers and other powers with regard to civil service and judiciary made him the supreme instrument of state power. The cabinet of ministers and other ministers are from the legislature and this has made parliament to become emasculated. Members of the cabinet are beholden or indebted to president because they hold office at the president’s will. They were to serve master and do not hold any allegiance to the legislature. The all of the above raised the issue of whether there were not citizens concerned with the rights of them and did not they resort to judiciary for protection and prevention of tyrannical tendency.

The answer is definite yes because these tendencies had been challenged in competent court and the internal dimensions of the judiciary has contributed to the deterioration of democracy in Sri Lanka. Reading the recorded decisions of the higher courts of Sri Lanka suggests the followings:
  1. It has not acted proper time to prevent the tyrannical tendencies in Sri Lanka even when they had sufficient and enough power to prevent such situation.
  2. Internal power struggle among the judges had aggravated the politicizing need of the judiciary by the executive.
  3. Judiciary had interpreted the constitution at the cost of democracy:
In this process of interpreting the constitution, they did neither followed Rule Book Conception of Justice nor Substantive Conception. The appointment system has made judges to be aware of their self actualization needs in relation to career as well as others.

This is equally applicable to the case of impeaching chief justice. She was appointed to the chief justice post and she had expected. Her own contribution to erode faith in the constitution and equal protection of law for the rank-and-file of the society questionable in several cases where she acted as member of the bench. One can argue she favored the president in deciding the constitutionality of the marshal court which made many hardship to the former army chief Sarath Fonseka, the opposition candidate in the last presidential election. There had been a public outcry at the time of appointing her husband to a public sector bank and it was only after removal of him the grudging started between the president and chief justice. Otherwise, she could have favoured the president as in the case of deciding the constitutionality of eighteenth amendment. The eighteenth amendment to the constitution could have rejected on the same ground as done in the case of constitutionality of the Divineguma Bill. The same scenario had occurred towards the end of the former president Chandrika Kumaratunga Era between her and former chief justice Sarath Nanda Silva.

Concluding Observations
The forgone discussion of the behavior of the judiciary in deciding hard cases suggests that it had inherited a rich tradition of upholding human rights. However, with the enactment of the Second Republican Constitution and its provisions had created a situation where judges become dependent on the favour of the president to get appointment and promotions in their career. By consenting to the 18th Amendment to the constitution and deciding cases to meet their benefactor they had paved the way for Sri Lankan Political System to get transformed from a minor tyranny to an excessive tyranny while judges digging their own grave.

There are many occasions where criminal being favoured through the Attorney General Department and the Department of Police leading the democratic politics to get lumphenized. If the present generation does not intervene to prevent this gradually degeneration of democratic politics, our future generation had to pay un-imaginable cost in attempting at tyrannicide. The judges can contribute towards preventing bloodshed by deciding hard case not on political policy but on principled political policy.

References

1 . Senior Lecturer in Political Science, Department of Economics, University of Ruhuna
2. Ronald Dworking, (1978) “Political Judges and the Rule of Law” Proceedings of the British Academy, 64 as reproduced in lain Mackenzie, (ed.) Political Concepts: A Reader and Guide, Edinburg University Press, Edinburg, 2005.
3 .Op. cit. p. 324
4. Op.cit. 325.
5 . Sylvie Delacroix, “Rule of Law" in lain Mackenzie, (ed.) Political Concepts: A Reader and Guide, Edinburg University Press, Edinburg, 2005.

6. J.A.G. Griffiths,
7 . He does not include the group dimension of rights. Dominant Western discourse has been dismally failed to take into account this dimension.
8. Chantal Mouffe, On the Political, Rutledge, London, 2005.
9 .Ronald Dworkin, op.cit.
10 . The Rulings by the Supreme Court of Sri Lanka and even Privy Council on ethnically sensitive issues is classic example in this regard.
11 .For thought provoking discussion on the danger of playing politics on moral registry see Chantal Mouffe. Op.cit.
12. Making Constitutions to suit the personal ambition of the winning political party leader was introduced under the first Republican Constitution in Sri Lanka.
13 . In fact, the Sri Lankan constitution has laid a set of such principled principles in the constitution. However, if a judge is striving to find those principled principles in his or her decision, he or she is punished by denying the promotion and now by the threat of impeachment through bought legislature as rank-and-file believes in Sri Lanka.
14 . International Crisis Group, Sri Lanka’s Judiciary: Politicised Courts, Compromised Rights, Asia Report no. 172, 30th June 2009.
15 . Ibid
16 . Arendt, H. On Human Condition, Chicago University Press, Chicago, 1958.
17 . There are many incidences where parliamentarian involves in criminal activities such illicit drug trafficking, murder, intimidation on political opponents and media etc under president Rajapakshe in unprecedented scale after the war victory over LTTE.

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