The landmark judgment

 

Editorial-February 22, 2014, 6:48 pm

Memories are notoriously short in this country and former Chief Justice Shirani Bandaranayake, unceremoniously and in the perception of many, unfairly and unjustly impeached by Parliament, returned briefly to the public gaze on Friday when a five-judge bench of the Supreme Court unanimously overturned the determination of a three-judge bench of the Court of Appeal that had granted a writ quashing the findings of a Parliamentary Select Committee that sealed her fate. Nobody, least of all Bandaranayake herself, would have expected any other verdict; hence her decision to absent herself from court and be unrepresented. Nevertheless the question that remains unanswered is how was it possible for the Appeal Court decision to be ignored and no less than the Chief Justice of this country summarily dealt with before the Supreme Court had the final say? Should not a determination by an apex court stand until it is vacated by the ultimate authority which is the Supreme Court?

The Attorney General, no doubt impelled by the need to sort out an issue that placed Sri Lanka in a very poor light in legal and judicial circles globally, naturally sought to overturn the Appeal Court determination by invoking a higher jurisdiction. But until the Supreme Court made the final ruling on Friday, should he have not sought a stay order on the Appeal Court judgment delivered just four days before the CJ was removed? The Select Committee findings were flawed, this judgment had ruled, and Parliament was directed to desist from acting on those findings. That, of course, did not happen. Parliament proceeded to impeach Bandaranayake and she had now become an almost forgotten factor in the public discourse. She is in the news only when other matters thrown at her such as her assets declaration comes up at various tribunals.

The Select Committee procedure was concluded in an indecent hurry and whether opposition members of that committee were right or wrong in their decision to walk out of its proceedings in protest against the manner in which its business was being conducted will, no doubt, be subject of debate for a long time to come. There will be those who would say that they should have remained and fought to the last without allowing the government majority in the committee to bulldoze its way and do what it pleased. The government, obviously, would have like the unpleasant business concluded as fast as possible so that the national spotlight could be turned elsewhere. The opposition, to our mind, was duty bound to thwart such an attempt or make it as hard as possible. By walking out, they gave the government a free run which was gleefully seized.

It was former president J.R. Jayewardene who once famously said that Parliament could do anything except turn a man into a woman. The Supremacy of Parliament was the issue that the Attorney General successfully canvassed in this matter. Acknowledging that the Court of Appeal had writ jurisdiction over the lower courts, the Supreme Court has held that under the Constitution, Parliament and its Committees did not fall within that ambit.

There was also the issue of a Supreme Court judgment a few days earlier that had held the impeachment process as unconstitutional and legally unsound. It held that only a court or tribunal or body with power conferred upon it by law had the authority to make findings affecting the rights of a person. This three-judge bench had ruled that a Parliamentary Select Committee appointed in terms of Standing Orders of the House had no legal power to make a finding adversely affecting the legal rights of a judge.

But the broader five-judge bench that heard the Attorney General’s appeal against the Appeal Court determination held that the previous SC judgment was ``altogether erroneous and must not be allowed to stand.’’ It ruled that the Constitution empowered Parliament to provide by law or standing order for all matters relating to the investigation and proof of a judge’s misbehavior or incapacity. The three-judge bench had wrongly ignored the words ``or standing order’’ and that determination had therefore been overruled. Now that the concluding chapter of the previous CJ’s departure has been written, the debate will probably be restricted to learned papers and academic discourse. It is certainly not being even mentioned in the Provincial Council election campaign now getting into its stride.

The bottom line is that legislatures, across political boundaries, will always be jealous of their powers and privileges and will always consider Parliament Supreme. Nobody need have any quarrel on that score although it is imperative that the necessary checks and balances are in place to prevent any tyranny by a parliamentary majority. We have often said in this space that weak oppositions and absolute majorities in parliament is a surefire recipe for bad governance. This is evidenced by the two thirds majority Mrs. Sirima Bandaranaike’s United Front won in 1970 and the five sixths majority of J.R. Jayewardene in 1977. The 1970 government which included the once robust old left parties brutally, though necessarily, suppressed the JVP’s first insurrection of 1971. Worse, it imposed untold hardships on the people that included acute scarcities of bare essentials like rice, flour and sugar for which people had to queue for hours on end. 1977 saw the Executive Presidency and all its negatives including the arrogance of an Executive powered by a sense of invincibility. This has now been enhanced by a government that engineered its two thirds majority through opposition defections and has among other things abolished the two-term limit on the presidency.

Friday’s judgment has no doubt settled the legal issues on Bandaranayake’s impeachment to the satisfaction of the government. But whether this is so with regard to the moral issues thrown up is something for the people to decide.