By Rajan Philips –

Rajan Philips

“Extraordinary things are taking place right now in Sri Lanka – things which could not be found in anywhere else in the world.” –  President Rajapaksa, at the ‘Swarna Purawara’ ceremony, Temple Trees, 9 January

In a famous exchange between GK Chesterton and Bernard Shaw, GK poked fun at Shaw that if visitors to Britain were to see Mr. Shaw they would think there was famine in Britain.  “And when they see you”, Shaw shot back, “they will know why.”  For young readers not familiar with the two English literary figures of the early-mid 20^th century, GKC was very portly and Shaw was very skinny.

So when the President of Sri Lanka says that “Extraordinary things are taking place right now in Sri Lanka – things which could not be found in anywhere else in the world,” we know that the President and his government are the reason why such things are happening in the land.  Not just us, even the President has only to look into a mirror to see why extraordinary things are happening.  If he is not satisfied with the mirror image, he can look at his brothers to see why they are happening.  On his watch, parliament has just done the most extraordinary thing in Sri Lanka’s constitutional history.  The President himself is set to follow suit and issue an extraordinary order to remove Chief Justice Shirani Bandaranayake from office.

Almost for the first time after decades of internal and external manipulations, the Supreme Court found its voice to give a ruling to protect the rights of the subject against the power of the rulers.  The Court did not deal with the question of supremacy, it adroitly sidestepped the issue of separation of powers under Article 4 of the Constitution, and it addressed the only issue that matters: whether it is fair or just for parliament to make, investigate and rule on allegations against a judge under procedural standing orders without providing for it by law.  The Court concluded that “in a state ruled by a constitution based on the rule of law” the impeachment process can be sanctioned “only by law and by law only” and not by Standing Orders. How could anyone quibble with this?

Willful undermining of the Judiciary

The government opted to answer with the muscle of a two-thirds majority in parliament and the force of goon squads on the streets of Colombo.  The Speaker in his wisdom chose not to issue another baseless broadside against the courts.  And the task of attacking the courts fell to other hired guns.  Leading the pack was former Chief Justice Sarath Silva who caviled at the ruling for not taking “any notice of the words ‘by Standing Orders’ in Article 107-3 of the Constitution which reads, “Parliament shall by law or by Standing Orders provide for all matters relating to an impeachment”.  It is funny he should say that, for in his day the former Chief Justice appeared to  many as if he was not taking any notice of either spirit or the letter of the “law” in dealing with the rights of others.   In contrast, the three judges of the present Supreme Court who ruled on the impeachment question took notice of both ‘by law’ and ‘by standing orders’ and determined that law and law alone, and not Standing Orders, that should govern the impeachment process inasmuch as it involves the rights of a citizen.

The state media seemed to pull a fast one to discredit the court rulings.  On Friday, the Daily News carried a news item and an article to announce that a “brilliant legal luminary”, LJM Cooray, has concluded that the impeachment was “full in order” and that the “PSC has fulfilled all requirements.”  But Cooray’s long article is sandwich scholarship: between seven or eight introductory paragraphs and the final citation paragraph of Cooray’s impressive credentials, is sandwiched, in its entirety and with due attribution, the Sunday Island political column article that appeared on December 23, 2012.  In fairness, only the first part of Cooray’s article appeared last Friday and the rest including Cooray’s “analysis” is to come next week.  In the meantime, we could reflect on what Ludwig Wittgenstein said of a false news story in a newspaper: the story will not become true if people buy fifty copies of the newspapers and read the same story.  Nor will it become true, we might add, if it is reproduced in other newspapers.

That said, Dr. Cooray observes in his article that there is no perfect constitution in the world, that in Sri Lanka each constitution was progressively made more imperfect, and that “the source of our problems today around the independence of the judiciary is the two immediately prior Constitutions. The 1948 Constitution was neutral and British conventions relating to independence of the judiciary were observed. The following Constitutions willfully undermined the independence of the judiciary.” Without waiting for further analysis, we could rhetorically ask the question, has there ever been an instance in Sri Lanka when the independence of the judiciary was more willfully undermined than at the present time with the impeachment of the Chief Justice?

Dr. NM Perera, in his Critical Analysis of the 1978 Constitution, insightfully observed that “institutional perfection is no antidote for human imperfections and perversities.” NM was referring to the transgressions of Felix Dias Bandaranaike against the judiciary during the 1970-77 period.  Felix, NM asserted, was acting in spite of the 1972 constitution and not in conformity with it.  So did JR Jayewardene in undermining the judiciary in spite of his own constitution and the solemn assurances to protect the independence of the judiciary.  JRJ and Felix Dias were third generation lawyers from leading lawyer families, and yet they became embodiments of imperfection and perversity in undermining the judiciary.  What they started has now descended to its worst depths under a regime that has too little to show by way of forensic pedigrees, and too much to offer by way of perversity, dishonesty and the lack of attributes that are fundamental to good governance.

Constitutional la-la land

“The Supreme Court judgment is not worth the paper it is written on,” External Affairs Minister GL Peiris is reported to have scoffed during the impeachment debate in parliament.  That is an assertion and not an argument, unworthy of the Minister’s stellar reputation as a law professor but in keeping with his spineless record as a politician.  Never known for making legal arguments, Vasudeva Nanayakkara resorted to cursing that the “Supreme Court could go to hell if it did not change its course.”  It is not the court that is going to hell, but it is the country that is heading to constitutional la-la land.

The President and the government may or may not have a problem in finding someone who is thick skinned enough to accept appointment as the new Chief Justice, acting or permanent.  But even if they were to find one, the present incumbent could challenge that appointment in court.  There will then be two Chief Justices – a legal CJ and a political CJ; but neither will be functional, so no CJ for a while.  Although Shirani Bandaranayake could challenge through the courts her removal and the appointment of her successor, she will not be able to function as CJ.  The government will make sure that she will not be able to function.

At the same time, a new Chief Justice, the political CJ, will have difficulty in getting full acceptance and cooperation among the associate justices of the Supreme Court and the judges of the Court of Appeal.  It would be morally and professionally impossible for the three justices, Gamini Amaratunga, K. Sripavan, and Privasath Dep, who made the historic ruling on New Year’s Day – through the mode of objective inquiry and in faithful fulfillment of their oaths of office, to accept the appointment of a new Chief Justice and work with that person.  The government would of course like to see the three Supreme Court judges and their counterparts in the Court of Appeal resign, but they will likely not resign.  Why should they?  They could instead leave it to the government to fire them if it wants to. By being fired, they could claim compensation for lost career and let the government take further political heat for monkeying with the judiciary.  The government would of course like to pack the judiciary with puppets and have the recent impeachment rulings overturned. The more likely scenario, however, would be an unhealthy stalemate in the superior courts.

The government will try to manage, or ‘shape’, in the midst of protests without overly antagonizing the lower echelons of the judiciary and the legal profession, and by playing favours among them.  The system is so rotten that it is more advantageous for individuals to politically fall in line than to push back and fight.  The lower courts may go back to normal business but there will be chaos if the courts’ rulings are not accepted at one level or another.  If the government can disobey the Supreme Court ruling, why cannot somebody else disobey the rulings of other courts?  The government could direct law enforcement officers to enforce the lower court rulings, but enforcement would become selective in an environment that is corrupt overall.  Some court rulings may turn out to be more important than others.  If parliament can punish the Chief Justice under standing orders, what is there to prevent subsidiary legislative bodies – from the Provincial Councils to Pradeshiya Sabhas – to have their own by-laws and procedures to punish their enemies, and acquit their family and friends from normal court proceedings?

The chaotic situation that the Court of Appeal warned earlier is about to unfold. But as I wrote two weeks ago, this government likes chaos, because in a chaotic situation it can do what it wants with no questions asked and no one to answer to. The government would be happy to have a stalemated Supreme Court as long as possible because it can avoid constitutional challenges to legislative and executive actions affecting people’s rights.  But the government’s undoing will be its arrogance, arbitrary entitlements, and overreaching.  It has been pushing the limits of political and social tolerance in one instance after another.  Alas, at every stage, as in the case of the current impeachment crisis, the government has been able to avoid a decisive political challenge thanks to the political impotence of the Opposition UNP Party and its leader.