By Dharisha Bastians –

As Sri Lanka steps into a bright new year her political fortunes have perhaps never been quite so tenuous. While it is possible that such dire predictions have been made many times before, as things stand now, the country is hurtling headlong into constitutional crisis which might alter the face of the republic in an unrecognizable way. Faced with a damned if you do, damned if you don’t situation with regard to the removal of the country’s top judge, the ruling regime is unlikely to take a step back, unless events in the coming week threaten international consequences too horrific to ignore

Politically speaking, the year 2013 begins on an ominous note. The seasonal festivities may have dulled the fervour of the impeachment battle somewhat, but as the Court of Appeal prepares to take up Chief Justice Shirani Bandaranayake’s writ application today, having issued notice to the 13 respondents cited in the petition – including the Speaker of Parliament and the 11 members of the Parliamentary Select Committee that probed the impeachment charges against her – the battle is poised to get started once again, with renewed vigour in the new year.

While it is no surprise that the Government members on the PSC will not be appearing before the Appeals Court today, UNP Leader Ranil Wickremesinghe provided more fodder for his critics by deciding that the two UNP Members on the Committee, Opposition Whip John Amaratunge and Party Senior Vice President, Lakshman Kiriella would not appear in court either. The UNP Leader, who is as adamant as ever to assert the supremacy of parliament over the judiciary, is of the view that since the MPs in question were involved in a parliamentary process, they do not need to appear in court with regard to the petition filed by the Chief Justice. This is despite the UNP members acknowledging privately that it was their opinion that they should appear in Court in order to explain what happened during the proceedings and how the lack of due process prompted the opposition walk out on 7 December. TNA MP and Attorney at Law M.A. Sumanthiran appearing on behalf of R. Sampanthan who is presently overseas and Vijitha Herath of the DNA are expected to appear in court today. The DNA had been willing to answer court notice even in December in the Supreme Court when the Court of Appeal issued notice on the PSC respondents in different writ applications, but ultimately their legal representatives decided that it was not necessary and may in fact delay the determination by the court.

Under the circumstances, Wickremesinghe’s decision to bar his MPs from answering court notices, will further reinforce the notion that Sri Lanka’s main opposition is in deep slumber and its leader busy with ego-play even as the country’s judiciary is mired in deep and damaging conflict with the executive and the legislature.

Judicial restraint?

Despite intense provocation and devastating propaganda attacks in the state controlled media, the Courts of law have continued to exercise a degree of restraint in dealing with the flood of litigation against the impeachment process, and now the PSC report. The Supreme Court in November, as it prepared to hear submissions in order to interpret Article 107 (3) of the constitution that pertains to the removal of judges, recommended in guarded language that the PSC delay its probe until the Court delivered its ruling on the constitutional quagmire, a request that was flatly turned down by Government members of the PSC and ignored by all those hastily summoned witnesses before the Committee on 7 December, following the walkout by Chief Justice Bandaranayake and her lawyers and the four Opposition members on the committee. On December 22, issuing notice on respondents in the Chief Justice’s writ application, the Court of Appeal sought to defuse the tension between the Parliament and the Courts. When notice was served on the PSC members regarding the writ applications filed challenging the legality of the committee by several petitioners including Chandra Jayaratne and President’s Counsel Jayampathy Wickremaratne. Government legislators reacted angrily to the notice served, demanding a ruling from the Speaker of Parliament as to whether they needed to answer. Buoyed by Wickremesinghe’s speech in the House  that Parliament was supreme and that the Speaker should follow former Speaker Anura Bandaranaike’s lead and issue a ruling to that effect, Speaker Chamal Rajapaksa later that day made a special declaration that no other institution had the power to question or examine parliamentary procedures. In its 22 December order, the judge Court of Appeal bench comprising Appeals Court President S. Skandarajah and Justices Anil Gooneratne and A.W.A. Salaam noted the ruling by the Speaker and sought to clarify matters. Noting that the Court was conscious of the ruling by the Speaker about the notice issued by the Appeals Court, the judges said the notice issued on the respondents was nothing but a legal obligation on the part of the courts to afford respondents an opportunity of being heard.

At the same time, it is clear that the judiciary is taking the impeachment matter very seriously indeed. The Court of Appeal set the next date to take up Chief Justice Bandaranayake’s application as 3 January, despite the fact that courts are still officially on vacation. In fact, with the Government poised to take up the PSC report and the Resolution of Impeachment against Bandaranayake up for debate on 10 January – in what is expected to be a very brief two-day affair – the Supreme Court interpretation of Article 107 (3) of the constitution that sets out the procedure for the removal of judges is also likely to be delivered soon. The Supreme Court, which has the sole mandate to interpret the constitution will determine whether Standing Order 78A that was adopted in 1984 during the impeachment process undertaken against Chief Justice Neville Samarakoon, empowers parliament to usurp judicial power granted to the courts under Article 4 (c).

Deadlock imminent

Whatever the Courts rule, one thing is already abundantly clear. Parliament is going to take no notice of judicial determinations, even rulings by the Supreme Court, paving the way for a massive constitutional crisis that brings with it the threat of anarchy and the complete break-down of law and order in the country. The calculation is simple. Firstly, if the court rules against the PSC process and determines it is a constitutional violation, and Parliament pushes through with the impeachment process based on the PSC findings, who will act against the violators of a court order? If law enforcement is tasked with taking action against those in contempt of court orders, whose instructions will the police be forced to follow?

Secondly, legal experts explain that if hypothetically the Government ignores a constitutional interpretation by the Supreme Court and a potential order granting interim relief to the Chief Justice by the Court of Appeal, it would send a message to the country and the world that rulings made by the Sri Lankan court system have no binding effect, rendering the judiciary redundant. Anarchy starts there, with parliamentarians setting a legal precedent for ignoring the courts of law, providing space for petty criminals and corrupt corporate to do the same.

Confusion with 1972?

The Government is clinging to the notion that the legislature is supreme in order to flout orders of the courts, which legal observers claim has no basis in constitutional law, despite Speaker Bandaranaike’s ruling in 2001 and Speaker Rajapaksa’s ruling in November last year. According to former Attorney General and Permanent Secretary to the Ministry of Justice, and current Coordinator for the UN mandated Judicial Integrity Group, Nihal Jayawickrema, the supremacy of parliament notion prevails because of a provision in the 1972 constitution that held that the judiciary would have no power or jurisdiction over the affairs of the (then) National State Assembly. Article 30 of the 1972 constitution, according to Jayawickrema was included in the context that the National State Assembly was recognized as “the supreme instrument of state power.” The 1972 provision reads as follows:

“30. No court or other institution administering justice shall have power or jurisdiction in respect of the proceedings of the National State Assembly or of anything done, purported to be done, or omitted to be done by or in the National State Assembly.”

According to Jayawickrema and other legal luminaries under the 1978 constitution, Parliament does not enjoy the same status and therefore it is a misconception that as asserted vociferously in pro-impeachment quarters, parliament is not subject to the jurisdiction of the courts in terms of protecting the constitution.

Hoist by its own petard?

In fact it was the view of the Sri Lankan Government just 10 years ago, that the parliamentary select committee process under Article 107 (3) with regard to the removal of judges of the superior courts was subject to judicial review, in the event the process was judged to be in violation of the principles of natural justice. The shocking revelation formed part of Chief Justice Bandaranayake’s Writ Application filed at the Court of Appeal, with her lawyers citing the Sri Lankan Government’s undertaking to the UN as the basis upon which her impeachment case could be submitted for judicial review. Bandaranayake’s application was filed just days after External Affairs Minister Prof. G.L. Peiris channelled his professorial skill to explain to the diplomatic community at the Republic Building housing the MEA that even in the US, impeachment against judges was a legislative process. Minister Peiris cited US case law to thoroughly explain that the Sri Lankan process against Bandaranayake was perfectly legitimate, although the briefing conveniently skipped over the checks and balances sections of the US impeachment process. Following the briefing, many embassy officials that were not entirely in the loop regarding the impeachment saga, were suitably impressed by the professorial lecture on the process and its patent fairness as articulated by the Minister. The revelation about Sri Lanka’s commitment to the UN in 2002 therefore seemed like a case of the student surpassing the master, with the Chief Justice having effectively stumped the Government and her former law professor and mentor by bringing the issue to light.

In October 2002, a Sri Lankan Government delegation led by then Sri Lankan Permanent Representative to the UN in Geneva, Prasad Kariyawasam presented Sri Lanka’s fourth periodic report to the Committee on Human Rights (CHR) set up under the office of the UN High Commissioner for Human Rights to monitor states’ implementation of the International Covenant on Civil and Political Rights (ICCPR). Also part of the delegation was then Solicitor General C.R. De Silva and Legal Draftsman Rohan Perera. The 124 page report submitted to the CHR by Kariyawasam and Co., has an entire section on the Independence of the Judiciary. Section 299-303 deals specifically with the impeachment process against superior court judges as stipulated in Article 107 (3) of the Sri Lankan Constitution. After dealing with in some detail the PSC process and the ‘proved misbehaviour and incapacity’ issues, the report’s section 302 makes an interesting note. 302 refers to the fact that the Human Rights Committee examining Sri Lanka’s periodic report on a previous occasion expressed concern specifically about Article 107 (3) of the constitution.

According to the report, the Committee had ‘expressed concern on the compatibility of the impeachment process with the scope and sprit of Article 14 (of the ICCPR), since it would compromise the independence of the judiciary.’  Article 14 of the ICCPR guarantees that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”.

In response to this ‘concern’ expressed by the Committee, the Sri Lankan Government report contends the following:

“None (sic) adherence to the rules of natural justice by the inquiring committee would be attract judicial review. Indeed nowhere either in the relevant constitutional provisions or the standing orders seeks to exclude judicial scrutiny of the decisions of the inquiring committee. Thus, it is envisaged that if the inquiring committee were to misdirect itself in law or breaches the rules of natural justice its decisions could be subject to judicial review.” (emphasis added).

Even as questions about the process to impeach the members of the highest judiciary mount domestically and abroad, it is interesting that a UN committee in the pre-2009 era, before becoming synonymous with international conspiracy theories and seemingly no vested interest at the time, called attention to the constitutional flaw with regard to the process that is now under such intense scrutiny. It would seem an indictment in fact on Sri Lanka’ own judiciary and legal fraternity that since 1984, the legality of Standing Order 78A and the impeachment process is never challenged nor reform sought except when a Chief Justice is threatened with removal.

International concerns

Sri Lanka signed the Covenant in 1997, and despite a ruling by former Chief Justice Sarath N. Silva that the country was only bound to abide by domestic law, Sri Lanka remains a signatory to the Covenant and continues to have obligations in that respect. Sri Lanka’s lapses on the ICCPR front were among the issues that led to the European Union’s suspension of its special tax concessions or GSP Plus for Sri Lankan exports in 2011. The undertaking by the Government before the CHR will likely come back to haunt the ruling regime, with the impeachment drama having clearly exacerbated the international challenges facing Sri Lanka in the year ahead. This fact is not lost on those Government officials who must answer these challenges in international forums year after year. Plantations Minister and Presidential Special Envoy on Human Rights Mahinda Samarasinghe is Sri Lanka’s point man before the UN Human Rights Council that adopted a resolution against Sri Lanka last March because the country was dragging its feet on reconciliation and accountability issues post war. Through the conflict years and beyond, Samarasinghe has sought to place Sri Lanka in the most favourable light possible and maintains a good rapport with UN official. But over the last two years, he has been fighting a losing battle as a member of a Government that is increasingly hostile towards the international community and refuses to live up to its international obligations. Realizing the damage caused to Sri Lanka’s battle against an international war crimes inquiry by this hasty attempt to remove the head of the country’s judiciary Samarasinghe has made an effort to warn President Mahinda Rajapaksa and top Government officials about the international ramifications of the process, especially given the international attention the drama is garnering.

But these few voices of reason are being drowned out by a section of people that are pushing the Government hard towards going through with the impeachment proceedings against Shirani Bandaranayake. In fact, even as the Government has spent the better part of the Christmas and New Year holidays mulling over its options and consequences of following through with its ultimate desire to remove Chief Justice Bandaranayake, some of these forces are engaged in a concerted effort to assure President Rajapaksa that he is on the correct course.

Pot. Kettle. Black.

Chief among these pro-impeachment voices, in a dramatic U-turn of his initial stance on the issue, is former Chief Justice, Sarath Nanda Silva. Even as the nation vacationed, the former Chief Justice was repeatedly quoted and cited on state media, keeping the impeachment issue very much alive in public memory.

The former Chief Justice stood stoically against the interference with the judiciary and the impeachment of Bandaranayake when the issue first came up. He was vocal in his opinions and even remarkably moaned that he had helped President Rajapaksa win the presidential election by dismissing the Helping Hambantota case, in the hope that he would be good for the country but it appeared he was being proved wrong. All this was before the former Chief Justice met his old friend the President at the funeral of former Supreme Court Judge, Raja Wanasundera in late October. The widely reported encounter resulted in the President putting his arm around Silva in a warm embrace and the latter changing his tune on the impeachment of Chief Justice Bandaranayake mere days later.

A few days before the New Year, Sarath Silva opined on state television that ‘parliament was supreme’ – a deeply ironic statement given the background to Anura Bandaranaike’s famous ruling in 2001. Bandaranaike made his declaration in the context that a bench of the Supreme Court (then headed by Silva) that included then Supreme Court Justice, Shirani Bandaranayake gave a ruling with regard to a fundamental rights petition attempting to restrain Speaker Bandaranaike from conducting impeachment proceedings against Chief Justice Sarath N. Silva. His recent discovery that Parliament was supreme then, must by extension mean that he believed the ruling by Justices of his Court in 2001 was patently inaccurate. Senior lawyers quipped that it was strange then that the constitutional crisis loomed so large and acute that it forced then President Chandrika Kumaratunga to dissolve parliament in order to protect her Chief Justice appointment from being impeached by the opposition. It is also mysterious how Silva reconciles his attempts to legislate from the bench – especially with regard to the petrol prices and the supermarket plastic bag issue and his decision to hold MP S.B. Dissanayake in contempt of court and sentence him to rigorous imprisonment in 2004 with his assertion that ‘Parliament is supreme.’

The former Chief Justice whose tenure at the head of the country’s judicial system is widely acknowledged as some of the darkest days for Sri Lanka’s judiciary, is perhaps irked at the public and fraternity support that Bandaranayake has commanded as she faces off against a regime determined to remove her from office.

Impeachment 2001

Silva also told state media recently that he was ‘shocked’ when he saw the findings of the PSC report – causing outrage among the opposition and legal activists who charged privately that there was perhaps nothing more shocking than the impeachment charge sheet filed against Silva in 2001, which contained horrors that unfolded in the Sri Lankan Supreme Court that were unprecedented. In fact one Government MP that declined to be named but is firmly anti-impeachment – at least in private – joked that a process to impeach a Chief Justice is necessary whether the present procedure is flawed or not, because it would be necessary to rein judges of Silva’s ilk.

Sarath Silva enjoys limited support because of his judicial activism on his latter days on the bench and his support of former Army Chief Sarath Fonseka. However his position is drawing ire even from his supporters with analysts now predicting a fallout between Silva and Fonseka if the former continues to pursue this position with regard to Bandaranayake’s decision. Fonseka – despite showing considerable political naivete on some fronts has maintained that he stands for an independent judiciary despite the fact that the judiciary has not necessarily given him favourable rulings in recent years. Some analysts claim that Silva’s about face on the impeachment was a result of his realization that as long as Ranil Wickremesinghe was at the head of the UNP he would have no meaningful role in the common opposition as long as Ranil was on top. In fact, some observers said that the incident at Justice Wanasundera’s funeral and Wickremesinghe’s statement that his party would have no dealings with Sarath N. Silva strangely appeared to have coincided.

Unpopular

Many activists for the Chief Justice’s cause opine that Sarath N. Silva’s position actually helps Bandaranayake because the former Chief Justice was a patently unpopular figure in the country. Other pro-impeachment voices have proved somewhat more credible however. Anti-corruption activist and Chartered Accountant Nihal Sri Ameresekere last month wrote to Speaker Chamal Rajapaksa citing examples of how Bandaranayake and other judges of the Supreme Court have ignored perception of bias charges in his petition calling for a review of the SC ruling on the constitutionality of the expropriation bill. He has also repeatedly made the point that the Chief Justice who was claiming natural justice principles had been violated in the impeachment procedure had denied natural justice to many others by allowing the passage of the expropriation bill. On 20 December 2012, Ameresekere issued responses by courier to several organizations that issued statements of concern regarding the impeachment process. Writing to the Commonwealth Secretariat, US State Department, EU Ambassador to Sri Lanka, Bernard Savage, the United Nations, the Commonwealth Lawyers and Judges Association, the Canadian Bar Association and the Asian Human Rights Commission, Ameresekere said that the Chief Justice and other members of the bench had knowingly denied natural justice to him and other parties affected. “A hue and cry has been raised on the matter of natural justice, which perhaps triggered your concerns. On an examination of the attached Report of the Parliamentary Select Committee, it would be revealed that the facts are otherwise, and that the Chief Justice had been, in fact, afforded adequate time of one month, to respond to matters, which were within her own knowledge. Please do compare this with the contents of my aforesaid Affidavit, where the people and I, particularly parties affected, had been knowingly denied natural justice of even having been heard, whilst she and the other Members of the Bench had acted in my view, without jurisdiction, ultra-vires the Constitution, rendering nugatory the tenet that all are equal before the law,”  the letter that also justifies the PSC process says.

Essentially, as Sri Lanka stands today, opinion on the impeachment is roughly divided into three parts – four if you count those to whom the issue matters not a bit. There are those who are pro-Shirani Bandaranayake, no matter what, those who are anti-Shirani Bandaranayake and pro-impeachment no matter what, and then there are those that believe that this has nothing to do with Shirani Bandaranayake at all but that the battle being waged is one against the office of the Chief Justice and the independence of the judiciary by the executive. This group believes that at all costs, the Government must be prevented from turning the judiciary into just another state institution at which heads can roll at the whim and fancy of the political leadership.

The one thing the three opinions have in common is that the impeachment against Bandaranayake was not moved because the Government truly believed her to be financially and professionally corrupt.

Damned if you do, damned if you don’t

Having debated the issue heatedly in the last few weeks, the Government is faced with a strange catch-22 situation. It is not accustomed to backtracking, when it wants its way. Yet it appears that the pressure mounting both at home and abroad is too intense to presume there would not be some serious consequences for the country if Bandaranayake is removed. The most grave concern for the regime remains of course the Commonwealth Heads of Government Meetings scheduled to be held in Sri Lanka in November this year. For an organization whose primary membership is seriously questioning Sri Lanka’s suitability to host the summit and then continue as Commonwealth Chair for two years, the impeachment could well prove the excuse the wider membership needs to change the status quo even at this late hour. The regime deseperately wants to host CHOGM 2013 and as it stands now, the fallout in the Commonwealth, remains its primary and perhaps only reason to falter in terms of proceeding with the Chief Justice’s removal.

If the Government chooses to forge ahead despite these reservations, it would appear that President rajapaksa, who despite his assertions to the contrary is leading the charge on the impeachment, was forced to make an emotional, rather than rational decision and one that would be motivated from the very outset by ill-advice. His Government decided to table the shoddily drafted, error-ridden impeachment motion, on the poor advice that Chief Justice Bandaranayake would resign under pressure. His two thirds majority Parliament headed by the Speaker, his brother, bulldozed their way through the setting up of the PSC, its composition and the manner in which it conducted its affairs. Even as revelation after revelation further erodes the legitimacy of the impeachment process against Bandaranayake, it becomes clear that the Rajapaksa Administration went into this process blind and poorly advised. It appears now that the Government had no idea that the UNP in 2003 had requested a tribunal of retired Commonwealth Judges to investigate the impeachment charges against Sarath N. Silva – with the Government claiming at a meeting with newspaper editors last month that the UNP had not bothered to call for Commonwealth observers and tribunals when they were trying to impeach Samarakoon and Silva. It appears also that they were ignorant of the GoSL’s undertaking before a UN Committee when it waxed eloquent about the fact that Parliamentary processes were not subject to judicial review. If President Rajapaksa had a moment to change course, it was when the Congress of religions pleaded with  him to reconsider in December, when he had the option of being the magnanimous politician, submitting to the conscience call by all religious leaders in the country. But as always, the greatest political miscalculations occur when egos get in the way. When objection flies out the window, and rulers are surrounded by ‘yes men’ such errors become commonplace. With regard to both the Government and the Opposition, the inability of those around their political leaders to have the courage to say ‘no’ constantly drags the country into the doldrums.

The general feeling amongst activists for the Chief Justice’s cause believe that given her understanding of the legal system, its functions and requirements, she would not have commenced this fight against the charges levelled against her unless she was certain of proving her innocence. In fact every move the regime  has made, to unnecessarily hasten a process that took some six months during Chief Justice Samarakoon’s case and even the UNP in 2003 took its time over, despite having the numbers in parliament, the conduct of the PSC and attacks by the State media has further reinforced the fact that the Government itself was not quite certain of being able to prove Bandaranayake’s guilt, except the way they have – in an ex-parte and quasi-legitimate process.

Courtesy Daily FT