By Basil Fernando –

Basil Fernando

When the impeachment proposal was announced, the immediate reaction of many was that the outcome was pre-determined as the government has a two thirds majority in Parliament (acquired as this was even by foul means). It was therefore predicted that this would be the end of the matter. There will be rituals, like the PSC proceedings which were presumed to be artificial and then the beheading of CJ will take place, after government MPs raise their hands in favour of the impeachment. Thereafter the Supreme Court will not interpret the Constitution against the government.

These predictions however were proved wrong within a very short time. One simple issue came to the forefront of the debate concerning the principles relating to removal of the judges of the superior courts. In respect to this issue, near unanimity that the process leading to the easy removal of a judge was contrary to justice and equity emerged. Even the president, the chief mover of the impeachment declared that he had qualms of conscience on the matter.

One primary factor that was not predicted was the manner in which the courts reacted to the matter. On an earlier occasion when the late Anura Bandaranaike as the Speaker, refused to accept the summons issued by the Supreme Court in relation to a stay order on a motion of impeachment against Sarath Nanda Silva, the matter ended there. The same approach was adopted by the Speaker this time but the matter has not ended in that same way. Courts have claimed the right to have the last word on the matter. Thus the raising of hands in the parliament will not be the end of the matter. If the matters raised by the Chief Justice are proved in Court, the appeal court had said, it will declare any decision taken on the basis of PSC findings as null and void. Thus, there are many more episodes to this drama which may be more exciting than what was predicted initially.

Some say, that the government still has one more easy way to achieve its objective. That is by way of the assassination of the chief justice. Some websites have even published stories about alleged plots in that direction. It is alleged that some criminal serving long sentences are being mobilized. Given the past record of the government, there is reason not to disregard such stories as mere rumours. However, if this were happen, the consequences impacting on the government will be much worse than otherwise.

The fact that lawyers and judges rose to the occasion makes this attempted impeachment of the Chief Justice different to the attempted impeachment of Sarath Nanda Silva. Then, the legal community by and large wished to rid of him. It was the government that protected him.

What is even more impressive in the current context is the manner in which public opinion came to be formed in defense of the judiciary, even despite the fact that the people were unhappy about the way that the judiciary has performed in the past. It was clear that what the people were defending was not the incumbent Chief Justice but the judiciary itself. The fight changed from one between the government and Shirani Bandaranayake to a fight between the government and the people. Obviously the people had been waiting to confront the government and the government had provided them that opportunity. Despite all the rubbish that sycophants who act as journalists in the state media were propagating, many people cast aside their inhibitions to express their clear opposition to the repression that government was engaged in.

The way that the government members of the parliament raise their hands is not the most important aspect of this impeachment move. Deeper questions have been raised and the people have sought answers to the questions that they have managed to raise. There is a visible change in the culture of political silence that was prevailing after the accursed victory of J.R. Jawardence in 1977.

Perhaps Karl Popper was right when he wrote, “the future depends on ourselves, and we do not depend on historical necessity” (The Open Society and Its Enemies). Sri Lanka’s future need not necessarily be one under totalitarianism and we may find our way out of the shackles of the 1978 Constitution and the equally accursed 18^th amendment.