26 May, 2019

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Abandoning The Rule Of Law In Sri Lanka

By Andrew Rizzardi

Chief Justice Dr Shirani Bandaranayake

Earlier this month, Sri Lankan president Mahinda Rajapaksa replaced Chief Justice Shirani Bandaranayake with a political ally following a parliamentary impeachment process that was deemed unconstitutional. While the government claimed that Bandaranayake had abused her position for personal gain, her ouster was widely regarded as a Rajapaksa vendetta and yet another blow to judicial independence in the country. In the wake of this showdown between the branches of government, the judiciary has been reduced to little more than an appendage of the ruling party. According to the latest edition of Freedom in the World, Sri Lanka experienced declines in political rights and civil liberties indicators in 2012, adding to a multiyear deterioration. If January is any indication, the coming year promises more of the same.

Bandaranayake is an unlikely symbol of judicial independence. In May 2011, she became the first chief justice appointed by President Rajapaksa following the enactment of the divisive 18th Amendment to the constitution, which abolished the short-lived Constitutional Council and granted the president increased appointment powers over the judiciary and a range of other previously independent state entities. Human rights lawyers opposed Bandaranayake’s nomination, and the U.S. ambassador in Colombo called her a “Rajapaksa loyalist.” Nevertheless, she eventually found herself at the center of a constitutional crisis.

The row began over the controversial Divi Neguma Bill, which proposed the creation of a centralized development authority combining all provincial agencies under Economic Development Minister Basil Rajapaksa, the president’s brother. The legislation would effectively transfer 80 billion rupees ($700 million) in development funds to the minister’s control without any provisions for oversight. The bill also included a “secrecy clause” that could block whistleblowers from reporting corruption. The Supreme Court, led by Bandaranayake, prevented passage of the bill on two separate occasions. In September, it ruled that all of the provincial councils had to approve the legislation, as it concerned issues that were normally handled at the provincial level. The bill successfully cleared the councils in all but one province; since Northern Province lacked an elected council, the appointed governor endorsed the legislation instead. A second legal challenge ensued, and on November 6 the Supreme Court ruled that certain clauses must be approved by a majority in Parliament and a public referendum. Almost immediately, the governing United People’s Freedom Alliance (UPFA) filed a motion for Bandaranayake’s impeachment. Fourteen charges were lodged against her, including failure to disclose income, disregarding the constitution, and harassment.

On November 23, the impeachment charade began in earnest. Requests for a public hearing were denied, and observers were barred. Full disclosure of the charges was refused, no witness list was provided, and cross-examinations were disallowed. Bandaranayake also faced verbal abuse from parliamentary hecklers. She and her legal team walked out on December 6, saying they would take no further part in the process. Bandaranayake was convicted by a parliamentary committee on three counts of misconduct, setting the stage for a vote on her removal by the full UPFA-dominated Parliament. The International Commission of Jurists condemned the entire process as a “relentless campaign” to weaken the judiciary.

Tensions escalated on January 3 when the Supreme Court found the impeachment proceedings to be unconstitutional. The government’s rhetoric then shifted from rescuing the Supreme Court from the menace of Bandaranayake to a direct assault on the judiciary. UPFA lawmakers denounced judicial attempts to “usurp” power from the legislature. State-owned newspapers championed the authority of Parliament, alleged foreign influence on jurists, accused dissenters of harboring separatist sympathies, and stepped up the smear campaign against Bandaranayake herself. On January 11, Parliament passed the impeachment motion, 155 to 49. The chief justice received a presidential letter of termination within 24 hours. Her replacement, Mohan Peiris, is a former attorney general and close Rajapaksa ally.

Bandaranayake quietly stepped aside, fearing for her life and the safety of her family. Opposition leader Sarath Fonseka urged her to join him in the creation of a new political party, but she has not issued a public response. Meanwhile, legal professionals are challenging the legitimacy of Bandaranayake’s successor and have threatened to boycott legal proceedings, potentially freezing the entire court system. Civic, religious, and professional groups have roundly condemned the impeachment process. There is also evidence of a rift within the ruling coalition. A number of normally loyal lawmakers abstained during the impeachment, including the leaders of the Communist Party and the Liberal Party. Internationally, Canada plans to challenge Sri Lanka’s bid to host the Commonwealth Heads of Government Meeting in November.

The crisis could also have economic repercussions. Sri Lanka has experienced robust economic growth since the end of the civil war, aided by dramatic increases in foreign direct investment. Erosion of the rule of law and related political turmoil could easily change investors’ calculations. The Ceylon Chamber of Commerce, aware of the danger, has called for harmony between state organs. Aid from foreign governments may also be in jeopardy. The U.S. State Department has said that the impeachment raises concerns about the Rajapaksa administration’s commitment to democracy. Sri Lanka received $27 million in bilateral assistance from the United States in 2012.

Nevertheless, the Sri Lankan leadership appears to be pressing its advantage. Having effectively confirmed the supremacy of the political branches over both the judiciary and the constitution, some government officials have threatened to regularly summondissenting judges before Parliament for censure. Meanwhile, the opposition is left with little recourse. Although the judiciary regularly enforced suppressive government actions, it remained one of the only venues for Rajapaksa’s opponents to challenge his hold on power.

It has long been bad politics in Sri Lanka to defy Rajapaksa and his allies. They typically get what they want, and the Divi Neguma Bill is no exception. It was easily passed on January 8. So why would the leadership risk economic and political damage over a bill that was all but assured to become law, one way or another? In an attempt to quickly quash any sign of judicial dissent, the government began a process that snowballed beyond expectations. As the stakes increased, it stubbornly refused to step back. The consequences of the constitutional crisis are still developing, and it could have serious deleterious effects on Sri Lanka’s future. For the time being, however, Sri Lanka has suffered a swift, harsh blow to the rule of law.

* Andrew Rizzardi is a political analyst with a focus on human rights, governance, and corruption. He is currently assisting Freedom House with the forthcoming report,Freedom of the Press 2013. This article is first published on freedomhouse.org

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Latest comments

  • 0
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    While any attempt to weaken or dilute the office of the CJ/SL must be resisted “Shirani Bandaranayake had abused her position for personal gain” apparently on more than one occasion in the safe thought she was immune from punitive action as the powers be were on her side. She certainly “is an unlikely symbol of judicial independence”….”Human rights lawyers opposed Bandaranayake’s nomination, and the U.S. Ambassador in Colombo called her a “Rajapaksa loyalist” – is language of her clear mala fide action.

    If the system of justice has any meaning here, she must be made answerable for the pre-meditated abuse on her part – like any other citizen. If she unduly used her weight in the GKCCC matter to fraudulently gain Trelinium Towers properties sacrificing the interest of nearly 10,000 duped defaulters – the law, in the preservation of its own integrity, must follow its course. Such a course will also remain as a deterrence to future corrupt and collutionist high judicial officers. We have had far too many in recent times.

    Senguttuvan

    • 0
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      If she had done wrong, then she has to face a legal inquiry and not an illegal inquiry. The process that took place to impeach her was illegal.

  • 0
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    ll those with ‘Silva’ surnames should change their names because Silvas are the ruin of our country. Sarath Silva and Asoka Silva,two blackguards, paved the path to Mohan to finish up the judiciary. Mervyn Silva is shitting and pouring excreta on the sacrd city of Kelaniya.Silvas are in my family line too and I have advised them to change their names.

  • 0
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    The law has been abandoned by the president, the parliment and not by the vast number of people who suffer in hope of justice. A scab has been placed on the highest seat of justice. It is hoped that the rest of judiciary will continue to dispense justice impartially and in accordance with the constitution. They will also need to be vigilant of attempts to change the constitution to suit the rulers.

  • 0
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    Freedom House mind your own stupid business. There is a saying in sinhala ‘anunge weda gena vivechanaya kara kara innawata wada, thamange weda tika hariyata karapan hiwala keya hada’

    and for those who do not know sinhala, it is a sinhala folk tale and it means instead of wasting one’s precious time and energy mindlessly critisising the work of others, do your own work and and what you are doing mindfully and diligently for the greater good of others and set a good example rather than hanging around like rasthiyadu karayo (those time wasters who hang around at street corners) critisising others.

    This is an apt saying applicable for a number of groups the EU, US, India vis a vis Sri Lanka and Amnesty, Human Rights Watch and other INGOs.

    Lets look at all the money that goes into funding these busybodies like Freedom House or Amnesty or Human Rights Watch (human rights? my foot) Do these organisations know that millions go to sleep hungry in this world? 1 billion lives on less than 1 dollar a day in the world. All the money that goes into funding these busybodies is much better spent on feeding the world’s poor, on vaccinations or clean water for the worlds poorer people, I think.

    These busybodies don’t know or understand simple realities. Sri Lankans want and is interested in food, clean water, sanitation, housing, education, healthcare, jobs, vocational training, proper public transport and are reasonably happy with present circumstances but could be happier still (govt take note). I seriously do not think majority of Sri Lankans are that much bothered (myself included) who the chief justice is or not. So please get your priorities right.

    • 0
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      monkey,
      You say “Sri Lankans want and is interested in food, clean water, sanitation, housing, education, healthcare, jobs, vocational training, proper public transport and are reasonably happy with present circumstances but could be happier still (govt take note)”.

      SL govt. cannot provide these without aid from richer countries.
      And even the aid is partly robbed by the powers that be.
      for example: Tsunami donations gone to Helping Hambanthota.

      So there is a need for such organisations like Human ights watch to point out any abuse.

  • 0
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    Monkey,

    You really are a monkey.

  • 0
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    OMG Monkey,Monkey..Sad still there people like you in this world. That is why we are still in this situation.It is not the politicians but the ignorant selfish people like you create such politicians. You mean to say as long as you get a job and promised a job by a dirty politician it is ok to vote him in cause you get your food,job and every thing else as you are safe with your motive.Assume you have job monkey and you get unfair dismissal how on earth do you sort it out?If there is no law and order and fair justice system how can you get a justice.If your boss is politician if so aligned CJ take the side of the Boss,do you care who the CJ is?Please do not be so narrow minded and selfish.If there is a rule of law,proper management of the country every one has jobs and every one will leave peacefully and we do not need these organization that you hate.They are there cause there are shortfalls in our country in all areas of management not only in justice system.If we do not correct it who will do it where will be the country within next 10 years to come.You are here today cause our grand parents and great grand parents left us a good system and our kings built those tanks and developed agriculture sector.If not , you are starving to death monkey running in the jungle eating fruits and dustbins today.You are a real monkey.Majority Sri lankan thinks like you that is why we have these politician who can fool them by promising jobs,handouts and free foods.So do not blame them but blame you.There are people in this world who cares so let them come and sort out the injustice int he world Monkey.

  • 0
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    According to the latest correspondence from International Commission of Jurists, those who are shouting that impeachment of CJ is unconstitutional are those who do not know or understand the Law of the Country. After a close study on the subject they have declared that Sri Lanka has followed the correct procedure according to it’s Constitution to impeach the CJ, and that this is the procedure followed by many countries for this purpose.

    It also state that the judgement give by the Supreme Court on this matter is also biased and unconstitutional. This is the view of all the member of ICJ who are senior Judges of International Courts.

  • 0
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    The account of the auther is bias. How can the supreme court give rulings to protect its own CJ. That is illegal. Supreme court has entertained an application where it has no authority. A shameless CJ without any Judicial Experience heading the Judiciary has put the Sri Lankan judiciary to disrepute.

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