There is a saying that how a state metes out justice is an indication of the level of civilization of the state. The contents of impeachment motion against the chief justice, and the manner in which power is being used to abort that impeachment, show how uncivilized the affairs in the country are.
When there was an impeachment motion against chief justice Neville Samarakoon in 1984, he faced it fearlessly. He did not try to persuade judges and lawyers’ associations to act in his favor.
In the present crisis, it is not only judges and lawyers bodies that are coming forward in the defense of the Chief Justice, but also politicians of the ruling party who are trying to adopt resolutions expressing their confidence in him. These moves cast an aspersion on the Chief Justice and give rise to speculation that slurs the dignity of the position he holds.
It was Minister G.L. Pieris who proposed to the government’s parliamentary group that a resolution backing Mr. Silva be adopted. How can he do it when two cases which could have a decisive effect on his political life were being heard before Mr. Silva?
As regards the Bar Council resolution, it was President’s Counsel Akram Mohamed who moved it, asking the Speaker to refrain from appointing a select committee to inquire into the impeachment motion, until laws were passed to set up a judicial body to go into the motion. Mr. Mohamed was the lawyer who appeared for Mr. Silva in the adultery case filed by Engineer Jayasekera against Mr. Silva. Two of the three lawyers who moved the Supreme Court against the process of impeachment, too, were good buddies of Mr. Silva.
What Attorney General Kamalasabayson said repeatedly in the case filed against the appointment of Sarath Silva as Chief Justice, too, was relevant in the present context. He said the judiciary had no power to remove a Chief Justice from his post, and the constitutional avenue available for the purpose was impeachment.
An inquiry by a select committee is not equal to a judicial process. It is like a disciplinary inquiry conducted […] any institution. Although a select committee can find Chief Justice guilty or not guilty to charges placed before it, it cannot send him to prison.
Although there is a special institution for the disciplinary control of judges of lower judicial institutions, there is no institution at all for disciplinary action in connection with judges of higher courts. That has been made so because there must be an atmosphere in which judges of the higher courts are able to act independently. The only institution to which a complaint can be made against a judge of a higher court is parliament.
The case filed against the impeachment motion is one filed for the purpose of protecting the Chief Justice. His appointment of a panel of judges for the purpose of hearing a case filed against him cannot be correct by any means. What the Chief Justice should have done if he had been fair, was to appoint a full bench of nine judges so that there would be no room for doubt, or to get the President to appoint another Chief Justice for the limited purpose of hearing that case against him, as provided for by Section 169(1) of the constitution. Instead the Chief Justice appointed a bench of three judges selected by himself.
When the entire process of filing the case, appointment of a bench, and getting an immediate injunction is considered, it can be considered a legal conspiracy carried out to protect the Chief Justice, probably with the patronage of the executive. Didn’t the three judges know that the case before them was a subject that did not come within the purview of the judiciary? That the judiciary has no power to issue orders in relation to the internal processes of parliament is not a matter of dispute but one that is well established and accepted. However, the panel of judges has disregarded all that and not only permitted further speedy inquiry into the petition, but also gave an interim injunction restraining the Speaker from appointing a select committee.
Surprisingly, the lawyer who appeared for the Attorney General’s Department not only appeared for two different institutions (the Speaker and the Secretary to the President), but also refrained from objecting to the interim injunction – an unprecedented move in the legal history. However, he had appeared for the Speaker even without a proxy from him.
There is no doubt that the planners of this legal conspiracy had assessed that the government would accept an order given to parliament by the Supreme Court for the protection of the Chief Justice. However, their assessment was not correct. There were some PA MPs who realized that this was an attempt to strangle parliament through the judiciary. Because their voice was added to the opposition’s voice of protest, the conspirators could not achieve their aim.
However, it led to a conflict between parliament and the judiciary and to a larger constitutional crisis. At this moment the Chief Justice is playing the role of a man stuck in mud. The more he tries to get out, the deeper he sinks. The fate of the friends who jumped into the mud to rescue him, too, will be the same.