By Harim Peiris –
The speed of the Rajapakse regime’s impeachment against the Chief Justice was so swift, at the political speed of a duty free Lamborghini, that the defense against this unrestrained assault on democratic fundamentals in Sri Lanka was slow in coming.
However, starting things off where it should were the lawyers for the Chief Justice who produced a comprehensive and stinging refutation of the main charges against her, that of large sums of money in her account. The explanation which was also quite easily established and readily proved was something likely to be quite common in Sri Lanka, an overseas based family member remitting money for the purchase of an asset in Sri Lanka, in the CJ’s case, her sister sending funds for the purchase of an apartment in Colombo. Her lawyers reiterated what the CJ’s young son in his Face book profile first clearly indicated, the Chief Justice was not going to be intimidated and go quietly; she was going to fight this tooth and nail.
The main weakness in the CJ’s defense is really a political one, namely Opposition Leader Ranil Wickramasinghe’s unwillingness to mount a serious challenge to the Rajapakse regime on any issue, just ask FUTA. One actually wonders, if Ranil does consolidate his own power within the UNP, whether the situation would change. That of course is the hope for some push back on authoritarianism in Sri Lanka. The way for Ranil to consolidate his power, is not still more manipulation of the much maligned UNP constitution, but rather a political accommodation of his detractors and rivals within the Party and especially his charismatic young deputy leader Sajith Premadasa. Ranil should realize that even his own loyalists in the UNP Working Committee, who so overwhelmingly voted for him as party leader turned around and voted for Sajith Premadasa as deputy leader, clearly indicating their desire that the two work together. They also recognize quite astutely that all Ranil’s weaknesses are complemented by Sajith’s strengths. This desire of the UNP Working Committee hasn’t changed but it hasn’t worked because Ranil has instead tried soft peddling opposition to the government, leaving the door open for the political assault on the Chief Justice.
Mangala Samaraweera, a former campaign manager and foreign minister for President Rajapakse and now an opposition front bencher, UNP media coordinator and fierce critic of the Rajapakse regime came out swinging in defense of an independent judiciary, safeguards and guarantees for the integrity of the officer of the Chief Justice. Using the occasion of the second reading of the budget in Parliament, the UNP front bencher built on the political arguments consistently made on the issue by the UNP deputy leader Sajith Premadasa, who from early on had consistently advocated strong political resistance to the assault on the judiciary.
The Bar Association of Sri Lanka, for the first time in over two decades summoned an extraordinary general meeting, to discuss the assault on the judiciary by the government. Bar Association Chairman and UNP Parliamentarian Wijeydasa Rajapakse presided over a gathering of over one thousand lawyers who were fairly unanimous in their opposition to the impeachment and passed a motion urging the President and Speaker to reconsider the Government decision and also in the alternate to ensure strict procedural safeguards and the integrity of the process. Government members including Cabinet Members present at the meeting were noticeable by their stoic silence as their impeachment initiative was universally condemned by their fellow lawyers.
There is strong merit in the legal argument that Parliament exercising judicial functions is ultra vires the Constitution. Before Sri Lanka’s 1972 republican constitution, final appellate jurisdiction rested with the Privy Council in the UK. When the House of Lord’s acts in a judicial capacity, it is only the Law Lords and not the other lords, spiritual and temporal that sit on such deliberations. Sri Lanka’s republican constitution vested the judicial power of the people, exercised by Parliament through the Courts, the apex of which is the Supreme Court. Parliament does not directly exercise judicial power except in the specific and limited case of its own rights and privileges.
Joining the international chorus calling the Rajapakse Administration to some sanity and urging judicial independence was the United Nations (UN) through the Office of its Special Rapporteur on independence of judges and lawyers, Gabriella Knaul who reminded the regime that “irremovability of judges is one of the main pillars guaranteeing the independence of the judiciary”. While not reported in the press one can be certain that visiting US Deputy Assistant Secretary of State Dr.Alyssa Ayres would have reiterated US concerns on the impeachment expressed by the US PRUN in Geneva at the UPR recently.
There is also informed political speculation, that besides the Divineguma Bill, the other domestic legislative imperative for the Administration, is the guttering of the 13th amendment to the constitution and the current Chief Justice and the ruling on Divineguma would prevent that. Hence CJ Bandaranayake must be sent home before the 13th amendment is guttered.
While the government presses on gung ho, seeking to impeach the Chief Justice, gutter the 13th Amendment thereby centralize power and restrict freedoms further, the UK House of Commons today gave the first indications that it was seriously considering joining the Canadian Prime Minister in a boycott of CHOGAM to be hosted by Sri Lanka next year. India’s Congress Party facing a tough re-election battle in a general election due early in 2014 if not earlier and with the Tamil Nadu votes and support being essentially a swing state for power at the Center, would hardly consider a photo opportunity of its Prime Minister at CHOGAM, with a 13th Amendment guttering President Rajapakse, a vote winner in Tamil Nadu.
The Rajapakse regime is likely to succeed in its single minded effort to get rid of Chief Justice Bandaranaike. However this would occur only with significant and possibly irreparable collateral damage to its credibility and legitimacy, both domestically and internationally.
*Harim Peiris served as Presidential Spokesman from 2001-2005