By Jehan Perera –

Jehan Perera

The government’s decision to impeach Chief Justice Shirani Bandaranayake on the grounds of alleged misbehavior is a controversial one.   It is extraordinary in a democratic society for a chief justice to be faced with charges that are said to merit impeachment.  During her long tenure on the Supreme Court Justice Bandaranayake since 1996 she has maintained a low profile.  She was also the country’s first woman judge of the Supreme Court.  She was appointed to the highest position in the judiciary by the present government.  The timing of her impeachment has been disconcerting.  The impeachment motion was presented to the Speaker of Parliament at same time the time that Sri Lanka was defending its human rights record before the United Nations in terms of the Universal Periodic Review.

The international fallout has been immediate.  The impeachment motion triggered a response from the United States which, last March, spearheaded a campaign in the UN Human Rights Council to get the Sri Lankan government to deal with the issue of human rights violations during the war.  The US representative said that Sri Lanka must strengthen its judicial process, protect members of the judiciary from attacks and restore an independent mechanism to oversee judicial appointments.  The attack on the Secretary of the Judicial Services Commission, of which the Chief Justice is the head several weeks ago was also noted in the US statement.  The JSC Secretary had publicly alleged executive interference in the judiciary prior to being attacked by unidentified men who have not yet been apprehended.

The timing of the impeachment gives an indication of the issues that spurred the government to action.  It coincided with the handing over of the Supreme Court’s determination on the legal cases filed before it with regard to the Divineguma bill.  Several parties had filed action before the Supreme Court opposing the legislation on various grounds, including its undermining of devolution of powers to the provincial councils.  The media has reported that a Supreme Court bench headed by the Chief Justice has decided that the Divineguma bill is not in conformity with the constitution.  The draft law has therefore to be passed by a 2/3 majority in Parliament and also has to obtain the approval of the people at a referendum.

MAJOR OBSTACLE

The Supreme Court ruling on the Divineguma bill presents a major obstacle to the realization of the government’s vision of centralized development in which it has the final decision making power.  The character of the government leadership is not to accept a situation in which there is countervailing power that can stand in its path as an equal. Although equality of the executive, legislative and judicial branches of government is a widely accepted principle of constitutional governance in developed democracies, this is not presently the case in Sri Lanka.  The government does not appear to be ready to accept the judiciary as a co-equal branch of government that could negate or block initiatives of the executive and legislature, both of which are under the full control of the ruling party.

President Mahinda Rajapaksa and other top leaders of the government appear to be convinced that centralized decision making is of the greatest importance in implementing their vision for Sri Lanka and that there is an international conspiracy to subvert it.  On many occasions, government leaders have proclaimed their admiration for the Asian model of development with specific reference to countries such as China and others in Asia.  The first legal step in fulfilling this vision in the post-war period was the passage of the 18^th Amendment to the Constitution with the Supreme Court giving its assent on the grounds that it did not require a referendum.  This restored to the President the full and untrammeled powers of appointment to the highest positions of the state that the 17^thAmendment had taken away from the Presidency a decade earlier.   It also strengthened the Presidency by doing away with the two-term limit on office. The Divineguma bill represents the second step in this policy of centralizing power.  But on this occasion, unlike the last one, the Supreme Court has stepped in to put a brake.

The 18^th Amendment has helped to centralize control over the state machinery by ensuring that all top officers of the state are beholden to the President for having appointed them.  By way of contrast the Divineguma bill deals with the second and third tiers of government.  It seeks to take away the powers of the provincial council especially in respect of economic development and vest them with the Economic Development ministry.  These two pieces of legislation would give to the government a very powerful hold on political power and economic resources from the top to the bottom of Sri Lankan society.  It is therefore not surprising that the government would be very much concerned about the setback to its plans and wish to get rid of the obstacle to them.

ETHNIC FACTOR

As the Supreme Court ruling is that the devolution of powers is affected by the Divineguma bill, the government will be forced to deal directly with the 13^th Amendment if the Divineguma bill is to be passed in its present form.   This should not prove to be difficult in terms of the domestic balance of forces.  The government has a 2/3 majority in Parliament that it could utilize.  In addition, the 13^th Amendment to the constitution and the provincial council system set up under it, have never really endeared themselves to the general population. The ethnic majority believes, and been made to believe, that they are both a white elephant, as there is little that they can do, as well as a Trojan horse, as they were forced upon Sri Lanka by India and can pave the way for the division of the country.

The ethnic minorities are also disenchanted by the 13^th Amendment and provincial council system as they feel they have not delivered to them the economic resources and powers of self-government that they seek.  But nevertheless the international community tends to view the 13^th Amendment as the basis for a fair solution to the ethnic conflict in Sri Lanka.  Certainly the Indian government has been a consistent lobbyist for the strengthening of the devolved system of government under the 13^th Amendment.  At the session on the Universal Periodic Review in the UN, the Indian government reiterated its expectation that the Sri Lankan government would further add to the powers of the 13^th Amendment to resolve the outstanding ethnic conflict.  Any amendment of the 13^th Amendment, or abolition thereof, is likely to be taken by the international community as a further weakening of the rights of the ethnic minorities.  India is also likely to see a violation of commitments made in terms of the Indo-Lanka Peace Accord.

By ruling against the constitutionality of the Divineguma bill the Supreme Court has denied the government the opportunity to further strengthen itself and weaken the 13^th Amendment and provincial council system in the indirect manner it has sought.  It has forced the government to deal with these matters in a transparent and direct manner, instead of subtly and indirectly.  The government’s apprehension is that this type of supervision by the Supreme Court will undermine its grand vision for the development of the country as it sees fit.  This may explain why the government feels constrained to impeach the Chief Justice who is now trying to give leadership to principles of governance that is according to the rule of law as laid down in the Constitution.  The government may be able to convince itself and the majority of people that what it is doing is right.  But in terms of constitutional government, in which checks and balances take a foremost place, and the judiciary’s independence is guaranteed, the proposed impeachment is putting the country’s democratic system at risk. The Owl of Minerva has set flight, but the shades of twilight have already fallen.