By Kamal Nissanka Attorney-at-Law BA (Hon), PhD (International Relations)
The impeachment motion filed against the Chief Justice of Sri Lanka a few days ago (Nov 1, 2012) has resulted in bringing a political storm especially within the legal and political spheres of the island.
The voices of politicians and political parties are heard around on the theme while the legal community is coming forward with various constructive criticisms regarding the whole national drama. In this developing situation it is worthwhile to look in comparison another friendly Asian country that brought its Chief Justice through an impeachment process this year and dismissed him from the high profile post in May 2012.
He was Renato C. Corona, then Chief Justice of Philippines. Corona was made the chief justice of Philippines just a few weeks back to the Presidential Election of 2010 by then Philippine President Ms Gloria Arroyo. Previously he was the Chief of Staff of President Ms Gloria Arroyo’s administration.
In our situation the incumbent Chief Justice was appointed a Supreme Court judge in 1996 by then President Ms. Chandrika Kumaratunga. When she assumed duties as a Supreme Court judge she had to face three fundamental rights cases against her which were decided by a bench of seven judges. One petitioner argued that Ms Shirani Bandaranayake was pro devolution. It was a period where the People’s Alliance government under Ms Chandrika Kumaratunga was pushing her draft for a new constitution. Former President might have thought that a judge in the calibre of Ms Shirani Bandaranayake would have been advantageous to the expected legal challenges in that era. We don’t know the exact rationale behind the appointment surpassing career judges. It took further 15 more years for Ms Shirani Bandaranayake to sit on the august bench of the Supreme Court as the first woman Chief Justice in Democratic Socialist Republic of Sri Lanka.
The saga of impeachment is also linked to her husband’s fate, a political appointee by President Mahinda Rajapaksa as a member of the board of directors, first to the Insurance Cooperation, then to the Lanka Hospitals and finally as the Chairman of the National Savings Bank (NSB). Whether he was correct or incorrect, corrupted or clean under his chairmanship the NSB was involved in an unjustified share deal bringing public distrust on the bank. Two weeks before the impeachment motion against Chief Justice, a case was filed against her husband on bribery and corruption charges.
The process of impeachment is now clear. Once the Speaker of the House receives the motion with at least the signatures of one third of the MP’s it could be tabled and a Parliamentary Select Committee is then to be appointed. The Select Committee acts as a tribunal. The Chief Justice can answer the charges by writing or through representations. If a Select Committee is to be appointed the majority will be the government members. It is the duty of the Speaker to determine that the charges against the Chief Justice are coming within the purview of misbehavior or incapacity. “Incapacity” is the physical or mental capacity to function in the high profile office. I think the element “incapacity” has no relevance in this context. In that sense the only element that can be targeted at the Chief Justice is “misbehaviour” and thus all the charges levelled at her will come within the purview of “misbehaviour”.
" In the impeachment process of the Chief Justice of Sri Lanka, the Select Committee composition is very important. If the Select Committee is to be composed of members who had given consent to the impeachment motion, that will definitely lead to a situation where natural justice and fair play is denied to the Chief Justice "
If the element of “misbehaviour “is the charge or the charges are within the interpretation of the word “misbehaviour” a question arises as to the integrity and suitability of the Select Committee. Further questions arise as to the standard of proof that is to be applied? Are the charges to be proved beyond reasonable doubt as in criminal cases or on the basis preponderance of evidence rule applied in civil suits or principle of substantiality of evidence as in administrative actions? Is the Chief Justice being presumed innocent until she is proved guilty as guaranteed by Article 13(5) of the Constitution? There are also issues of natural justice towards the Chief Justice in the process of impeachment. Is the Parliamentary Select Committee going to apply the “due process of law ‘clause that exists in many democracies to ensure that the fundamentals of fair procedure are applied? Can the Select Committee act without any appearance of bias? Can the member who signed the impeachment motion act in the Select Committee? If so would it be a rule against bias? If the verdict of the Parliament to impeach her, cannot be appealed against isn’t that a lacunae in the 1978 constitution?
Under the Article Xl, Section 2, of the 1987 Philippine Constitution a judge of the Supreme Court or high official could be charged in impeachment if he is involved in:
Betrayal of Public Trust, Graft and Corruption and Culpable Violation of Constitution.
In Corona’s case in December 2011 the House of Representatives passed a motion for impeachment with signatures of 188 members out of 285 members. The impeachment charge sheet composed of 8 charges. Those eight charges could be defined within three areas under the constitution.
He was allowed to make a written answer and answered all charges and the next step was to initiate the inquiry on January 12, 2012.
In a nutshell the charges against him were as follows:
The track record marked by partiality and subservient in cases involving Ms Arroyo. Failure to disclose to the public his statements of assets and liabilities required by the constitution. Alleged that failure to observe stringent standards first involving a labour case against Philippine Airlines, second “Vizconde Massacre Case”, appointment of Corona’s wife in a government position. Disregarding the principle of separation of powers by giving an order against the House of Representatives. Not followed earlier decisions of the SC. Created a committee to investigate the activities of another judge when he had no such authority. A partial granting of restraining order in favour of Arroyo to escape prosecution. Failure to report the status of Judiciary Development Fund and Special Allowance of Judiciary Fund.
In the impeachment process of the Chief Justice of Sri Lanka, the Select Committee composition is very important. If the Select Committee is to be composed of members who had given consent to the impeachment motion, that will definitely lead to a situation where natural justice and fair play is denied to the Chief Justice. In Philippine the impeachment process or trial was very transparent and the public were given a chance to witness proceedings through electronic live telecast where in Sri Lanka the impeachment process would be a hidden process. In that sense it will lack the idea of openness of judicial proceedings .Further in the Philippine case it took six months to conduct the whole proceeding while in our context a mere one month is allocated and the Chief Justice will be disentitled to “fair play’, adopted by advanced legal systems. (Writer is the Secretary General of the Liberal Party of Sri Lanka)
Comments - 1
George Gunewardena Monday, 19 November 2012 07:23 AM
If there is fair play, she should come off victor at the end of the preceedings.
Comments will be edited (grammar, spelling and slang) and authorized at the discretion of Daily Mirror online. The website also has the right not to publish selected comments.