The Supreme Court’s communication to the Court of Appeal this week saying that the Parliamentary Select Committee (PSC) has no legal authority to investigate the head of the Judiciary has thrown a spanner in the Government’s works. To use some of the Parliamentary language similar to that which was used at the PSC ‘inquiry’ into [...]


It is the people who are supreme; none others


The Supreme Court’s communication to the Court of Appeal this week saying that the Parliamentary Select Committee (PSC) has no legal authority to investigate the head of the Judiciary has thrown a spanner in the Government’s works.
To use some of the Parliamentary language similar to that which was used at the PSC ‘inquiry’ into the Chief Justice, one might refer to the current situation as a right royal ‘huta patey’ (complicated mess). To use more refined language though, it is a constitutional imbroglio, the likes of which has, arguably, not been seen in Sri Lanka’s contemporary history.

At the early stages of this looming tussle between the Executive-Legislature and the Judiciary, we quoted the famous English Law Lord Tom Bingham who said that the relationship between the Government and the Judiciary cannot be like that of a “happily married couple”. He said the very nature of the two arms of the State bring them into regular conflict. If these two arms were seen to be co-operating hand-in-glove, it would be worse than if they were at loggerheads.

Conflicts are meant to be resolved, with the Rule of Law and Good Governance being the ultimate winners. The current quagmire must therefore not spill into the streets and bring about a state of lawlessness. If not fairly, the Government is squarely responsible for the crisis that has arisen because its campaign to impeach the Chief Justice is clearly political.
It has been brought about by the Government to neutralise an increasingly independent Judiciary. Now, it has become a battle of pride. The Government is not going to relent, by all accounts. Already, it has begun questioning the validity of the Supreme Court ruling and asks why the court did not consider the words “.and Standing Orders” when interpreting the Constitution that the court said only allows “laws” to permit a Parliamentary committee investigating a judge.

However patently flawed the PSC inquiry was, not merely legally, but procedurally and decorum-wise, the Government will have its way insofar as the passage of the impeachment motion is concerned. Then, it is in the hands of the President to execute the coup de grace on the Chief Justice and see to her exit from office. In so far as the PSC ‘inquiry’ was concerned, the allegations against the Chief Justice were a non-sequitur – a conclusion reached without the evidence. The charges will, therefore, remain neither proved, nor disproved. The citizen will be none the wiser, whether the Chief Justice was guilty, or not, of the charges framed against her by 117 Government MPs.

The battle will not necessarily end with the President asking the Chief Justice to go home. The Government may have bitten off more than it can chew this time if the legal fraternity remains united, with both judges and lawyers resisting the Government’s bull-dozing ways. Should the President’s appointee to succeed the incumbent Chief Justice be considered unconstitutional, and others on the bench refuse to sit with the successor, will the President then have to sack the entire court, for no Chief Justice can sit alone and dispense justice. This could have frightful consequences; bringing the country into an anarchical cross-roads. Quo Vadis from there onwards?

One of our readers very recently sent a Letter to the Editor referring to the Shakespearean phrase, “off with his head” to describe an era when British monarchs of yore dealt with persons they did not like. Of course, then it had a literal meaning. The reader asked whether this was true of the present administration as well. One can reasonably ask if this is indeed a trademark of this Government that has now come to a climax.

Earlier cases are aplenty. From the sacking of the President’s chief campaign manager of 2005, to the sidelining of the JVP to the unceremonious incarceration of the former Army Commander (for challenging the Presidency), to the abrogation of the commercial partnership with Emirates (because some seats were not given to the President’s entourage), to the sudden sacking of senior career diplomats from foreign stations for being disagreeable – the examples are multifaceted and varied, but has a common thread. It has been case after case of “off with his head”.

Now it is the Chief Justice, and her head. The Secretary of the Judicial Service Commission was pistol-whipped and the house of the Bar Association president was shot at. Others criticising the Government have received threats. Is this what the External Affairs Minister refers to as keeping with “domestic procedures” in impeaching the Chief Justice? It is not a very nice picture for a Government that must clean up its human rights image, both in the eyes of its domestic constituency as well as the international (read Western) community.

Is there an escape route even at this stage from the rocky road ahead? The onus remains entirely with the Government if the situation is to be defused. It can either drag the Chief Justice through the mud, come hell or high water or choose to lay by the Parliamentary vote scheduled for the coming week.

The President seems to have advisedly done the right thing when he said he would put the PSC report before another committee. He must have known that the Government members of the PSC made a hash of their so-called inquiry. Then, under pressure from his own hardliners, he changed his mind. But, if he persists in ejecting the Chief Justice in this clumsy manner, it would be grist to the mill for his detractors, both local and foreign.

If, however, the Government wishes to eject the Chief Justice in any event, it will have to do it properly by tightening the legal loose-ends and convert the Parliamentary Standing Orders into an Act of Parliament, making it law. At least, then, they would be doing the wrong thing the right way.

This is not a case of the supremacy of any one individual or one arm of the State. It is a case, as the Constitution says, where the People are supreme, and what must be done is what is best for them, and them alone.

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