Impeachment or inquisition of CJ?

At least this time, the Government is truthful about it; it has made it known that the impeachment motion against the Chief Justice tabled in Parliament this week in what was clearly an 'indecent hurry', is a 'political decision'.

That such step would be taken as revenge for scuttling the Divineguma Bill was talked about for some time. The Supreme Court holding certain provisions of the Bill as being unconstitutional was taken as an affront to the Government. But the law is the law, and the Constitution the supreme law. The Supreme Court is not there to rubber stamp all Bills coming its way, though its tough stance in recent times is not without more than a murmur at Hulftsdorp Hill and elsewhere in the country.

The Government's knee-jerk reaction to the blocking of the Rs. 80 billion Samurdhi Poverty Alleviation Programme -- that brings under one roof the Divineguma Department and one Minister's total control -- was to repeal the controversial 13th Amendment to the Constitution. The argument to repeal this law has its merits, but not necessarily when argued in this instance. Having seen 13A as the first hurdle it came across, the second being the Supreme Court ordering a referendum of the people, a Government that boasts of winning election after election, seems to have opted out of testing the will of the people on this issue.

Rather, it decided to go ahead with the impeachment of the Chief Justice. Government Members of Parliament blindly signed a blank sheet of paper without even the Impeachment Motion attached to it. These are the very members in whose hands the fate of the Chief Justice will eventually rest.

Differences between the Executive (President) and the Judiciary have been simmering for some time now. In a proper democracy, the relationship between the Government and the Judiciary is not always cosy and if it is so, there's more reason for concern. Friction is inevitable as in a functioning democracy like India and even in Pakistan, where it has boiled on to the streets as the country undergoes severe labour pains to give birth to democracy.

The Government's ham-handed approach to this impeachment motion does not go down well with the majority of the discerning public in general, and the legal profession in particular. The drafting of the charges left much to be desired, and there is a total disclaimer as to its authors as even legal luminaries sympathetic to the President have ridiculed the way the charges have been presented. There is something amiss when certain provisions of three Bills presented by the Government were held to be unconstitutional this week by nine of the 11 Supreme Court judges. Either something is wrong with the drafting, or the Government is now cocky enough to try and pass legislation - even if unconstitutional.

At the root of the issue now is whether the Chief Justice, the ultimate bastion of the Rule of Law, will herself get a fair trial. To be tried by a committee which does not have a set of standing orders or procedures laid down for such an inquiry and then put to the whole 225 member House, half of whom have already become her accusers -- maybe they can say they have an open mind because they did not see the charges --and who are subject to a Government Whip, is tantamount to an inquisition of the Chief Justice.

The impeachment motion has, no doubt, sent shivers down the Judiciary, especially at the appeals courts. The security of the service of a judge and the wider issue of the independence of the Judiciary comes into focus. By the 'Removal of Officers (Procedure) Act No. 5 of 2002', the Ranil Wickremesinghe Government following up on the 17th Amendment, passed a law that afforded protection to the Attorney General and the Inspector General of Police. The holders of such high office were not to be removed without a proper inquiry.

In the case of the AG, a committee headed by the Chief Justice and comprising two retired AGs or two persons who had reached eminence in the field of law had to hold an inquiry, which was then put to Parliament and eventually to the President. In the case of the IGP, the preliminary inquiry was to be held by a committee headed by a Supreme Court judge, the Chairman of the Police Commission and a person who had reached eminence in the field of law or management of public administration.

This protection, however, does not extend to an appellate court judge, who can be subject to "political decisions" by a Government. Even a public servant is first charge-sheeted and then goes before a departmental inquiry. Then he or she has an appeal to an Administrative Tribunal and eventually an appeal to the courts. Even the President is not 'thrown to the ravenous wolves' and the 'tyranny of the majority' straight away when he or she has to face an impeachment motion. Section 38 of the Constitution says that once an impeachment motion has been tabled in Parliament an inquiry must begin (on the facts) by the Supreme Court, not by partisan MPs.

In independent India, the first judge against whom an impeachment motion was instituted was Justice V. Ramasami. When the BJP (Bharatiya Janata Party) submitted the motion, the Speaker first sent it under the Judges (Inquiries) Act, 1968 to a committee headed by the Chief Justice of India - it found the judge guilty of 11 of the 14 charges. But the Congress abstained from voting and a two-thirds majority to impeach the judge could not be mustered. Interestingly, the judge took to politics thereafter contesting Vaiko, the LTTE spokesman in Tamil Nadu. The only other Indian judge to face an impeachment charge, Justice Soumitra Sen was impeached by the Rajya Sabha just last year becoming the first Indian superior court judge to be impeached, after a thorough investigation, which included two separate committees comprising senior judges holding inquiries under their laws and the report was endorsed by the Law Ministry.

The United States of America has a long history of impeachments from state-level leaders like Governors to judges and even Presidents. Though voting is often on party lines, especially when it comes to Presidents, there is an elaborate procedure starting with the House of Representatives Judicial Committee that must first go into the charges. In Britain, the 1701 Act of Settlement now contained in section 11 (3) of the Supreme Court Act 1981 procedures are laid down on how to inquire into the conduct of senior judges, but typically, it has never been exercised.

Neither the Chief Justice of Sri Lanka nor any senior judge holds office at the 'whim and pleasure' of the Executive. Unlike in the Armed Forces, no pledge of loyalty to the Government is required. It is not a criterion for the performance of their public duties.

The Government is impatient to convey a different message to the Judiciary: "You are either with us; or against us". That is the credo in some countries, but not in democracies. No. 08, Hunupitiya Cross Road, Colombo 02. P.O. Box 1136, Colombo

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