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Asian Tribune is published by World Institute For Asian Studies|Powered by WIAS Vol. 12 No. 1584

Chief Justice Impeachment; A compromise solution is required to avert an embarrassment for the country

By Raj Gonsalkorale

The constitutional wrangle over who is supreme than the other appears to have overshadowed the key question whether the investigation of the Chief Justice’s alleged misdemeanors were carried out in a fair manner.

This issue was uppermost in the minds of many Opposition Parliamentarians, but now, their pre occupation with the constitutional wrangle has drawn their attention away from the person who is about to be constitutionally hanged without what many fair minded members of the public believe, was an unfair and hasty trial by a government majority Parliamentary Sub Committee that probably was not going to exonerate the Chief Justice anyway as they were wedded to the party line.

Arguments about the constitutionality relating to the supremacy of the people via their representatives in Parliament, and whether the Executive President can also claim a similar representative role considering he/she is also elected directly by the people, and the point at which the judiciary takes over the interpretation of this constitutionality, all point to a state of confusion about the current constitution.

This needs to be resolved. However, one has to consider the reason why this confusion has surfaced and whether that reason, the Chief Justice, should pay a price for it if she is actually innocent of the charges brought against her.

The stated intentions of the President and the Parliament to proceed with the impeachment of the Chief Justice is likely to be an embarrassment for the country as there are more doubts than a certainty that the Chief Justice has received a fair trial.

On the other hand, a decision of the government at this stage not to proceed with the impeachment will be seen as a defeat for the government and an embarrassment for the President and the government.

A compromise is therefore needed to avoid these embarrassments and save face for all parties. Such a compromise solution should be based on three factors. Firstly, if the Chief Justice is guilty, she should be appropriately punished. Secondly, if she is not guilty, she should not be punished. Thirdly, a clarification on the constitutional impasse should be sought from an independent constitution expert panel outside of the Parliament and the Judiciary so that a truly independent assessment of the issues can be made an appropriate constitution changes maybe recommended.

In this context, it would be seen as a positive move on the part of the government if they chose to find a medium to exercise Parliamentary supremacy in a more equitable and fair manner and opt for an independent judicial review of the PSC report with the power to re-examine aspects of the investigation into the Chief Justice’s alleged misdemeanour's and for the Parliament to act on the basis of that report.

This would have taken the heat away from the PSC, the government and the President without impacting on the supremacy issue. Detractors of the government, no doubt many, would have been hard put to object to such a process, and nationally and internationally, Sri Lanka would have maintained their reputation as a just and fair nation.

As proposed, although admittedly difficult now to retrace its steps, it is not too late for the government to vote for a referral of the PSC report for a judicial review by an appropriate panel of jurists, with power to reexamine aspects of the investigation against the Chief Justice if the panel opines it must, to ensure fairness and justice.

As a quid pro quo, to avoid a constitutional crisis, the Chief Justice should agree to step aside until the judicial review has been completed and the Parliament has considered the review report, and arrived at a decision on the impeachment based on the report.

Although not a solution that will fully satisfy the government, nor the judiciary or the Opposition, it is a solution that does not question the supremacy of the Parliament. It is a solution that will not question the appeal court ruling on the PSC as the Parliament will only be referring the PSC report for a judiciary review, a position no doubt quite acceptable to the judiciary. It is a solution that will remove both the Parliament as well as the judiciary from interpreting the constitution in regard to issues in hand, in particular the legality of Standing Orders, by assigning the responsibility for a review to an independent panel of constitutional experts.

The time has come for all parties to place the reputation of the country ahead of all other considerations.

The country can ill afford a stand-off between the legislature, the executive and the judiciary, as there is wont to be if the government proceeds with the impeachment. However, the judiciary too must be cognizant of institutional divides as regards responsibilities, and the ultimate sovereignty of the people in any constitutional crisis. That sovereignty is expressed via the people’s representatives, the legislature, and their supremacy therefore should be considered sacrosanct.

The constitutional wrangle over who is supreme than the other should not overshadow the key question whether the investigation of the Chief Justice’s alleged misdemeanour's were carried out in fair manner. This is the key issue that needs to be addressed in order that the outcome of the impeachment process will be viewed as being just and fair.

- Asian Tribune -

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