Colombo Telegraph

Fast Descent Into A Constitutional Dictatorship?

By Eran Wickramaratne

Eran Wickramaratne MP

Sri Lanka is fast descending into a Constitutional Dictatorship.  In a kingdom the powers of the Executive, the Legislature and the Judiciary were exercised by the king.  The king was sovereign.  In a democracy the people are sovereign and their sovereignty is given expression through the executive, legislative and the judicial branches of Government.  The healthiest democracy is where the different arms of government are independent of one another, and they exercise their powers in a manner that does not impinge on the other. A system of checks and balances should also be in place, so that one organ of power could arbitrate conflicts between the other two organs. If there was to be a conflict between the Executive and the Judiciary, the Legislature would be the arbitrator.

We are now facing a situation where Members of Parliament have brought an impeachment motion against the Chief Justice, and where they have to decide on the removal of the Chief Justice. In the United States of America there is a clear separation of powers between the Legislators on Capitol Hill and the President and his Cabinet.  The President picks his Cabinet from outside the House of Representatives and the Senate.  If a member of any of the Houses is picked to be in the Cabinet, like was the case with Senator Hilary Clinton, she resigned her legislative position to become a part of the Executive maintaining strict separation between the Executive and the Legislature.  In Sri Lanka the Cabinet of Ministers is picked from elected members of Parliament diluting the separation between the Executive and the Legislature.  The dilution was limited to the Cabinet of Ministers who share in executive power.   The administration of President Rajapaksa has reduced the independence of the Legislature drastically by appointing multiple scores as Senior Ministers, Ministers, Deputy Ministers and Monitoring Ministers. The independence of the Legislature from the Executive has irretrievably suffered by turning most legislators into mini-executives.  Government MP s have little choice but to bow down to the whims and fancies of the President when the structure of government has been altered in this manner.

It is in this situation that the Chief Justice will be subject to a hearing by the Parliamentary Select Committee and a subsequent vote by the Members of Parliament.  One has to assume that the Bench in a trial is unbiased and has no material interest in the case at hand. It must be pointed out that some of the MPs who have signed the Resolution have cases pending against them in the Supreme Court, and crossed over to the government from the Opposition benches.  In a jury system of trial a Juror picked to hear the case will be vetted for independence.  If the Juror is discovered to have any material interests or conflict on his selection he would step down as a Juror.

The critical issue in the dispensation of justice is to ensure that justice is done, and justice is seen to be done. I will refrain from commenting on the Resolution as per Article 107 of the Constitution that has been entered into the Order Paper of Parliament.  I need to comment on the backdrop and process of the impeachment.
An ordinary citizen has access to several safeguards in obtaining justice.  For example, a decision given by a lower court could be challenged in a higher court.  In the case of the impeachment of the Chief Justice or a Judge there is no similar recourse.  Therefore allegations must be converted into a charge sheet and then the evidence must be heard and carefully analyzed by the Parliamentary Select Committee.  Even in the instance an offense has been committed, it will have to be further examined if the offense warrants impeachment.  For example, former Chief Justice Neville Samarakoon’s speech at a tutory in Colombo was thought to be improper, but did not lead to an impeachment and he was subsequently acquitted.

It is no secret that there have been bad judgments on important issues relating to the interpretation of the Constitution and the sovereignty of the people.  It is also not a secret that there have been poor decisions by the Executive, and also by Parliament.  A case in point was the abolition of the 17th Amendment to the Constitution. Bad decisions do not always provide a basis for an offense. Bad judicial decisions of the past should not bias one’s view on the impeachment resolution It must also be pointed out that it was unfortunate that the Judiciary had presided over the reduction of its own independence when it ruled that the 18th Amendment was not inconsistent with the Constitution.  If modern democracies are built on the notion of separation of powers, then Sri Lanka has transgressed that principle with the adoption of the 18th Amendment.  It is also disturbing that the Constitution itself could be amended as an Urgent Bill, without time for public debate and consideration – an argument that appears to have not been considered by the Bench. A two-thirds majority in Parliament was not the mandate given by the electorate at the General Elections held in 2010.  The special majority has been created artificially by inducing crossovers from the Opposition ranks.

Sri Lanka is one of the few countries where laws inconsistent with the Constitution can be enacted through a special majority and referendum.  It begs the question whether such a Bill should be enacted into law or whether the Constitution itself must be amended after wide consultation.    The Divi Neguma Bill seeks to centralize power in a Minister, who is a Presidential sibling. The proposed Bill attempts to subvert Articles 148 and 150 of the Constitution which deals with public finance which is a part of the sovereignty of the people that is entrenched in Article 3 of the Constitution.  The Supreme Court has ruled that funds must be deposited in the Consolidated Fund and made available to the Divi Neguma Fund with the approval of Parliament.  The Divi Neguma Bill was a further attempt to strengthen the Executive arm of the Government over the Legislative arm, while others feel that it was an attempt to get at finances outside Parliament’s purview.

In another ruling on 22nd October on the Appropriation Bill the Supreme Court ruled that Clause 2(1) (b) and 7 (b) of the said Appropriation Bill contravened Article 148 of the Constitution giving Parliament complete control of finances.  Article 2(1) (b) was an attempt to raise loans without Parliament’s specific approval, and 7 (b) referred to the Minister’s discretion in allocating funds from one purpose to another without Parliament s specific approval. The Supreme Court’s recent rulings as explained above are a major irritant to the unbridled powers of the President and Executive arm of government.  The Court s newly founded assertiveness and exercise of independence is troubling for Government.  Dr. Shirani Bandaranayake as the Chief Justice may be a risk the Government does not want to take in the long run.  Those who are drunk with power need more power as an addict is devoted to his addiction.

It is in this backdrop that a resolution with allegations of personal and professional misconduct has been entertained by the Speaker.  Justice Bandaranayake has sat on the Bench for the past 15 years and her behaviour and judgments have been previously acceptable to the regime which then elevated her to be the Chief Justice. I do not wish to prejudge the charges against the Chief Justice. However questions will be raised as to their motivation.

The Executive and Parliament must now ensure that just and fair process will be followed and that the accused will be given the space and time to make her defense.  If not Sri Lanka will be a Constitutional Dictatorship

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