By Jehan Perera –
The process of impeaching Chief Justice Shirani Bandaranayake has commenced in earnest. The Parliamentary Select Committee to investigate and pass judgment on her has been appointed with a 7-4 government majority and consists of very senior government and opposition members. It has been very prompt in serving the charges against her. The Chief Justice was given one week to answer the 14 charges which she appealed against. According to news reports, this appeal filed by her lawyers was denied, and she was asked to appear in person and request for more time. Usually government administrative procedures offer those who are charged and have to answer the charges a period of 6 weeks. But this is not an ordinary case, and so the wheels of justice are moving extraordinarily fast.
Sri Lanka has a government that has shown it can dispose of obstacles to its path without delay. Once the government has decided on a course of action there is little or nothing that it will permit to stand in its way. Whether it was the elimination of the LTTE or the cleaning up of Colombo to be one of the most livable cities in Asia, the government has not permitted opposition to stand in its way. In eliminating the LTTE the government chose to ignore those sections of the international community who urged a negotiated settlement. The plight of slum dwellers has not stopped the government’s beautification of Colombo.
The improvements taking place in Sri Lanka compare favourably with other post-war countries such as Nepal or the Philippines. But now an albatross hangs around its neck in the form of international allegations of war crimes that are not going away. In an interdependent and interconnected world, every action has its reaction, and these cannot be confined to national boundaries. The recently published internal report of the UN on the end phase of the country’s war will add to the international demands for further investigations into what actually happened in Sri Lanka’s war.
On the other hand, this quality of doing what has to be done, or what is deemed to have to be done, has earned the government much praise within the country. It was not that the government leadership was unaware of the possible consequences of defying the international community in its bid to end the terror of the LTTE. The government has experts in all forms of law, including international law and local and international relations. The government would have consulted them prior to deciding to eliminate the LTTE and its leadership at high human cost and dare the consequences. The fact that the government was able to take this decision has served it well in subsequent elections, particularly going by the electoral verdicts in most parts of the country.
The initial indications are that, the international furor over the end of the war notwithstanding, the government will follow the same strategy of dealing quickly and decisively with the Chief Justice as well, and facing up to the consequences later. The state media has been utilized to place selective information before the general public. The state media does not believe in media ethics of providing balanced coverage as a matter of right. Therefore it has been able to create a political environment in which even punitive actions taken by the government against the Chief Justice will be accepted by the majority of people. Where poverty and limited resources prevents people from obtaining a well-rounded picture of reality, there is none that can rival the government’s ability to use the state media at its disposal.
In these circumstances the government may be able to politically get away with the impeachment, at least in the short term. Most of the Sri Lankan people would have seen the charges against her, which were widely publicized in the state media. Only few would have seen the Chief Justice’s answers to some of the more important charges. As a result they may feel that what the government is doing is justified. However, there are indicators that the majority of those in the legal profession are deeply perturbed by what is happening to the Chief Justice as they know both sides of the issue, and know that the charges against her are weak ones. The Bar Association at the national level as well as at the district level have become activated and have expressed their concerns.
The government also has reason to be concerned that the highest religious leaders of both the Buddhist Sangha and the Christian churches have come out strongly against the impeachment. It is noteworthy that the strongest expressions of disquiet about the government’s decision to impeach the Chief Justice have come from religious and civil society. The Chief Justice has come to be seen as embodying the values that democratic society stands for, such as separation of powers, checks and balances, independence of state institutions from political interference and personal rectitude in public affairs. It is also noteworthy that there is no full governmental consensus on the impeachment. The left parties within the government coalition have refused to support the impeachment.
In addition there is a gathering storm of international outrage over the impeachment. Within a few days of government’s announcement it would impeach the Chief Justice, the UN Special Rapporteur on the Independence of the Judiciary issued a strong statement expressing concern and called on the government to respect the independence of the judiciary. This has been accompanied by several statements of concern by international legal and human rights organizations. Ironically, the government declared its intention to impeach the Chief Justice on the very day that Sri Lanka was being discussed at the Universal Periodic Review of the United Nations in Geneva. This gave the move the maximum international publicity.
The government’s hard line on the issue of the impeachment appears to be an overreaction to what is perceived to be anti government actions by the Supreme Court. Sections within the government wish to create an ill-motivated impression that the Chief Justice is opposed to the government and that this is part of a larger political conspiracy. These misgivings began with the unprecedented stone throwing attack on a court house in the north of the country allegedly by a government politician. This led to an unprecedented strike by the lower judiciary. This has created the impression of a confrontation between the government and judiciary. Unfortunately the government has still not taken action against those involved, and the investigation appears to have ground to a halt.
Adding to the government’s fear of being stopped in doing what it believes is the way to move forward, is the fact that one of its proposed laws to concentrate economic development powers in itself was ruled as unconstitutional by the Supreme Court. However, it is not the judiciary that is opposed to the government, but a proposed law (the Divineguma bill) that is opposed to the Constitution. A dispassionate analysis would indicate that the Sri Lankan judiciary has, by and large, been deferential towards the decisions and plans of the government. The present Chief Justice can be described as being in that typical mould.
It must be kept in mind that it was a Supreme Court bench headed by her that permitted the removal of the two-term limit on the Presidency without subjecting it to approval at a referendum as hoped for by most democratic civil society activists. The government has the option of swiftly eliminating this Chief Justice through the impeachment process. It has a 7-4 majority within the Parliamentary Select Committee that is inquiring into the merits of the charges and the necessary 2/3 majority in Parliament to impeach her. The government leaders may feel that they have a mandate from the people to do as they please.
However, it is not good governance or the practice of democracy when the government, popular as it is and with a mandate from the people, dismantles the system of checks and balances. Continuing with the impeachment would be a grave mistake that would harm the country’s democratic system. It would also erode the government’s credibility with civil society and the international community at a time when the government needs their goodwill. The government needs to give the highest priority to reconsider this ill conceived impeachment. The first step in de-escalating the crisis would be for the Chief Justice to be granted the additional time she has requested to reply the charges against her.