(Published in Colombo Telegraph on 28/11/12. see, http://www.colombotelegraph.com/index.php/judiciary-sans-independence-the-sri-lankan-chronicle/)
The future of a judge who would have been the longest serving Chief Justice of the nation is grim in Sri Lanka. Widely alleged as politically motivated, the current move by the President to impeach her gives an opportunity to analyze the soundness of constitutional principles relating to judiciary in general and impeachment of judges in particular.
Constitution is the bedrock on which the judiciary in Sri Lanka is built like most constitutional democracies. Unlike many constitutions, it has very detailed provisions, spanning from Articles 107 to 147 with myriad of amendments, relating to judiciary.
The primary concern in the present context is the competence of the relevant constitutional provisions to safeguard the interests of the institution of judiciary in a democracy. The most fundamental value would be independence of judiciary. The independence is not only an end in itself but is also a means. It is in the independence of the institution, the present and future of a democracy rests. Independence of judiciary is a prerequisite of a sound legal and governance system. The provisions relating to appointment, tenure, conditions of service and removal are the bulwarks of judicial independence. Provisions of Sri Lankan constitution are an anathema to the claim of independence.
In the context of the current attempt to impeach a judge, an assessment of the provisions and procedure of removal is taken up to test on the claim of judicial independence.
Removal of judge in Sri Lanka as per the constitutional scheme is virtually in the hands of the executive. This cuts at the very root of judicial independence. Though the legislature is involved, the requirement of the simple majority makes the ultimate decision at the sweet will of any government, which invariably will have majority in the parliament. Article 107 of the constitution of Sri Lanka provides that the President may remove a judge on proved misbehavior and incapacity. The process is established by the standing orders (see, Standing Orders 78A). The impeachment process is kick started by the parliamentarians with a notice of resolution signed by one third of the members. After the lapse of one month, the speaker shall appoint a select committee of not less than eleven members who investigates and submits a report within a stipulated timeframe, which is one month from the commencement of the sitting of the committee. On the report of the select committee a resolution shall be passed by the parliament and the same shall be presented to the President for the action of removal. In this scheme of events, the judiciary is entirely under the benignancy of the government in power. It therefore remains as the affair of the government in power.
The breaches of independence vis-à-vis removal in the above scheme could be best understood in contrast with the structure provided by India, a neighbouring nation. Removal of a judge in India is commenced on the recommendation by the judiciary. The proceedings are detailed in the Judges Inquiry Act of 1968. It has elaborate provisions about the process. The enquiry is conducted by a committee of three; two from judiciary and one a distinguished jurists. The report of the committee is so decisive that if it does not find alleged misbehavior or incapacity, the proceedings are dropped. Only on an adverse finding that there will be any further proceedings in the House and the same shall be discussion and adoption of the motion to impeach with special majority. This process if nothing else does not leave the judges at the mercy of the government in power.
This limited comparative exercise brings out the inadequacies of the Sri Lankan scheme of removal of a judge, which is a heavy setback on independence of the institution. Judicial independence has been accepted as a coveted virtue world over. The lack of it is a severe dent on the rule of law record, human rights protection and liberty quotient of the citizen in its relation to its own government.