By Dharisha Bastians –

Dharisha Bastians

Every country in the world now being governed by an autocratic regime must have had a week like this one. Barring an eleventh hour reprieve, by sundown tomorrow, for the first time in the history of the Republic, the Sri Lankan Parliament will move to remove  a sitting Chief Justice from office. In doing so, the UPFA led legislature will mark another first, by following through with a process deemed unconstitutional and illegal by the highest court of the land. A unilateral decision by parliamentarians to discard the determination by the Supreme Court sounds a death knell for rule of law and the concept of checks and balances so integral in a democracy. The rapidly developing situation may still elude the citizenry at large but for the next 48 hours, Sri Lanka stands upon a razor’s edge that could well transform the nature of the state from republic to full blown autocracy

The Lagoon’s Edge holiday bungalow has a unique selling point no other resort location in the island can match. Tourists can spend Rs. 15,000 to spend a luxurious night on the banks of the lagoon in which one of the world’s most ruthless terrorist leaders were killed by Sri Lankan armed forces. Nandikadal, a place that will forever be synonymous with the defeat of the LTTE after 30 years of civil war ravaged this island nation is now firmly situated on the tourist map. Recently declared open by President Mahinda Rajapaksa and his brother the Defence Secretary, Gotabhaya Rajapaksa, the military-built, all teak luxury bungalow especially targets hoards of local war tourists, eager to embark on the trail of Eelam War IV which finally saw the end of the Tamil Tigers. The military caters to these visceral pleasures, setting up war museums and carefully marking each war monument – whether it is a destroyed ship, aircraft, gun or terrorist bunker. But the must-see attraction for most travellers from the south are the spots associated with the ethos of Tiger Leader Prabhakaran– his swimming pool, his ‘luxury’ bunker, even his toilet; and now with the brand new opening of a resort in Nandikadal, the chance to sleep one night in the place Sri Lanka’s sworn enemy, clad in only a loin cloth and covered in flies, met his gruesome end.

Reconciliation struggles

There is another side to the story of the Nandikadal Lagoon that often eludes the triumphalism that pervades the Sri Lankan post-conflict psyche. This stretch of land overlooking the brackish water of the lagoon was also the final battleground in which the UN estimates some 40,000 Tamil civilians died in the last months of fighting. The figures are disputed by the Sri Lankan Government – but even by regime estimates, at least 9000 civilians died in the final phase of the war with the LTTE. Under the circumstances, perhaps the more fitting reaction, in a country struggling with reconciliation four years following the conflict’s end, would have been the construction of a memorial to honour the dead as a means of making amends for the civilian ‘collateral damage’ in the country’s great triumph over terrorism.

International publicity

Needless to say, the resort at Nandikadal has generated wide international publicity. These are the Channel 4 dubbed ‘killing fields’ and Lagoon’s Edge is being called ‘killing fields tourism.’ The Sri Lankan Government in its supreme wisdom, despite grappling with the need to account for the civilian deaths in the last phase of the war, decided to draw international attention to the very place the world is screeching about by making a high end tourist destination on its banks. But when this and other damning reconciliation and accountability issues in the country – like the Jaffna University crackdown and the strange fate of the female LTTE cadres inducted into the army – put Sri Lanka in the hot seat when the UN Human Rights Council in Geneva six weeks from now, the Government and its proxies will no doubt be shouting themselves hoarse about international conspiracies driving the UNHRC agenda against the island.

If the UNHRC sessions that commence on 25 February are not top-most in the minds of the ruling regime, it probably should be, even as it proceeds with a move to oust Chief Justice Shirani Bandaranayake from office amidst grave concerns being expressed in that respect throughout the international community.

Wimal’s conspiracy theory

Housing Minister Wimal Weerawansa, who is also the regime’s conspiracy theorist in chief, alleged last week that the Chief Justice was part of an international conspiracy to make things difficult for Sri Lanka in Geneva this March. Sri Lanka is on the UNHRC watch-list after the Council adopted a resolution against the country last year, demanding that it stops dragging its feet on reconciliation and accountability issues in the post-war phase. Besides drafting a National Action Plan on Reconciliation and vague noises about a military tribunal to investigate military excesses, the Government has done little to escape serious scrutiny and review of its progress one year later. So Minister Weerawansa it would seem is on the lookout for scapegoats. Chief Justice Shirani Bandaranayake who has decided to fight the impeachment motion against her right down to the wire, fits the bill. Since any person dissenting with the Government – even if it were merely to prove their innocence against scurrilous charges brought against them by the regime – is naturally an international conspirator and traitor, Bandaranayake’s refusal to ‘go quietly’ as the regime would have preferred, must mean she is determined to make the country look bad internationally. This claim may have garnered some credence had the Bandaranayake herself brought the impeachment motion against her and then resorted to have it probed by a kangaroo court that vilified and abused her, refused to grant her adequate time to submit a detailed defence, called witnesses in secret and drafted an ex-parte guilty verdict in six hours, one senior lawyer quipped. But it has long since become the norm to vilify and paint as treacherous any civil society movement agitating against state excesses. The fight for individual freedoms and fundamental rights are often touted as being Western ideas, born of Western agendas to change Sri Lanka. Every resistance movement for civil liberties is by definition therefore, anti-Sri Lankan and anti-regime. But this is inevitable. When a ruling party grows more determined every day to strip away fundamental freedoms, the struggle for liberty and a fight to protect institutions that preserve democracy, become essentially, anti-regime.

New threats

A sense of foreboding has dulled this second week of the new year. Potential confrontation and chaos hangs heavy in the air. What began with the delivery of the Supreme Court ruling that the Parliamentary Select Committee probing the impeachment charges against the Chief Justice did not have the authority to make decisions adversely affecting the rights and tenure of a judge of the superior courts, climaxed with the Court of Appeal issuing a Writ Certiorari quashing the PSC report that found Chief Justice Bandaranayake guilty on three charges out of 14 listed.

On the night of Sunday 6 January, on the eve of the Court of Appeal ruling President of the Appeals Court, Justice S. Skandarajah received a telephone call. The anonymous caller told Justice Skandarajah that he was not to proceed to court the next day, when a bench led by him was to take up the Chief Justice’s petition against the PSC findings. Around the same time, Justice Anil Gooneratne, another judge on the bench hearing Bandaranayake’s petition received a telephone call to his residence. The message was the same – refrain from attending court the next day. Both judges filed complaints against the threats at the Bambalapitiya and Borella police stations and proceeded to court the next day, when they heard submissions from the Chief Justice’s legal counsel and the Attorney General for several hours before issuing a verdict that quashed the findings of the PSC against Bandaranayake. Police investigations meanwhile concluded that the telephone calls originated from a public phone booth in Rajagiriya. Whoever the callers were, in attending court the next day and declaring the ruling against the PSC, the judiciary proved once again that in this battle of wills, it was not going to give into intimidation or be cowed by the threat of physical force.

Upon announcement of the judgment, the Government whipped itself up into a frenzy, with several ministers, including Weerawansa and Mervyn Silva making seriously contemptuous statements against the judiciary that were provided wide publicity in the state media. Weerawansa has gone so far as to demand that the Court of Appeal judges who gave the verdict should be summoned before the legislature to be held in contempt. Weerawansa’s abysmal knowledge of legal procedure and the separation of powers concepts aside, the statement had a much darker side. Legal circles raised the question as to whether this was a prophesy of things to come, that under the new order that will be established once the incumbent Chief Justice is removed any judge who makes determinations against the Government would be faced with the threat of being hauled up before Parliament to answer for his actions.

An issue of supremacy

Weerawansa’s assertion, and indeed assertions by most Government legislators this past week – many of whom have taken to adding the prefix ‘uththareethara’ or ‘supreme’ each time they refer to Parliament – draw their courage from the ruling made by Speaker Anura Bandaranaike in 2001 (and repeatedly reinforced by UNP Leader Ranil Wickremasinghe of late), to a parliament that was dissolved before a discussion about or challenge to the claim could be mounted. The ruling was in reference to an injunction imposed on the Speaker by a Supreme Court bench that included then Justice Shirani Bandaranayake, during a hearing of a fundamental rights case challenging the setting up of the PSC to look into the motion of impeachment brought against then Chief Justice, Sarath N. Silva.

As this impeachment battle raged and the Government took a cue from the UNP Leader, whose purported knowledge of Commonwealth parliamentary tradition is suddenly greatly respected by UPFA parliamentarians, former Chief Justice Silva became a key pundit for the state media on the supremacy of parliament.

The concept of Parliamentary Supremacy is an old one, dating back to monarchical Britain when constitutional conflict revolved around the struggle for power between the King and Parliament. Parliament’s supremacy was established in the 17^th Century when Britain transformed into a constitutional monarchy. The fundamental reason for asserting this supremacy then, was to protect the people from arbitrary rule and lawmaking by the monarch. At the time, with judges serving almost entirely at the pleasure of the king (Charles II sacked 11 judges during his reign), it may have been necessary to ensure the judiciary could not interfere with the laws made by Parliament. No modern constitutional theorist would argue that parliamentary supremacy within the framework of modern democracy, instead of a monarchical system, meant supremacy over the courts of law. It runs paradox to concepts that govern modern democracies to assert the power of one organ of the state over the other in the way ruling party legislators and some UNP members are currently attempting to do. This is a strange assertion, especially since the 1978 Constitution that legislators are currently bound by only refers once to something being “Supreme” in one instance: In its preamble which states thus: “WE, THE FREELY ELECTED REPRESENTATIVES OF THE PEOPLE OF SRI LANKA, in pursuance of such Mandate, humbly acknowledging our obligations to our People and gratefully remembering their heroic and unremitting struggle to regain and preserve their rights and privileges so that the Dignity and Freedom of the Individual may be assured, Just, Social, Economic and Cultural Order attained, the Unity of the Country restored, and Concord established with other Nations, do hereby adopt and enact this CONSTITUTION as the SUPREME LAW of the DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA.”

The constitution makes no further reference to any institution of the state holding sway over or being supreme to another. So the question remains, what are Parliamentarians basing this claim upon?

Flawed logic

The concept of separation of powers relates to the separate and unique powers vested in each of the three organs of the state. The Sri Lankan Parliament (and other legislative councils at regional levels) have exclusive jurisdiction in the making of laws and control of public finance. The executive retains the power to declare war and peace and execute actions under the nation’s public seal. The Judiciary is vested with the power of judicial inquiry, the examination of evidence, pronouncement of guilt and innocence – and in the case of the Supreme Court, the “sole and exclusive” power to interpret the constitution. In the oldest constitutions, the power to make law and constitutions may lie with the legislature, but the interpretation of those laws is the sole jurisdiction of the courts of law. Head of the Department of Law of the Peradeniya University, Dr. Deepika Udugama, a panellist at recently held Forum with Eran, a panel moderated by UNP National List MP Eran Wickremaratne, explained how the concept of parliamentary supremacy is outdated and does not apply in mature democracies. The logic governing the Sri Lankan parliament’s assertion that it could discard a ruling by the apex court because Parliament was supreme was fundamentally flawed she said.

“If the Constitution is the Supreme Law of the land and the sole and exclusive jurisdiction to interpret the constitution is guaranteed to the Supreme Court by the constitution, then to say parliament is supreme therefore it does not have to abide by Court rulings especially on the interpretation of the constitution is completely flawed logic,” Dr. Udugama explained.

In an executive presidential system the question also arises as to whether Parliament’s supremacy so widely asserted in the House by the Diyawanna, is also then liable to be asserted over the Executive President and the powers vested with that office. In fact, the inclusion of a clause on the supremacy of the National Assembly in the 1972 constitution was possible only in the absence of an executive president with whose inclusion naturally the power of parliament would be diluted somewhat. That Supremacy clause also referred to jurisdiction over parliamentary affairs, in that no other institution could interfere with the business of parliament. Indeed, the present Parliament also has certain safeguards provided by the Parliamentary Powers and Privileges Act that protects parliamentary proceedings from external control.

The Supreme Court of Sri Lanka in its ruling on 1 January, in reference to interpretation of Article 107 (3) pertaining to the removal of judges of the superior court, helps to make a keen distinction between the allegation that the courts are interfering with the business of parliament and the bounden duty of the judiciary to uphold the constitution and the guarantee of rights to every citizen contained therein. The ambiguity contained in Article 107 (3) which stipulates that: “Parliament shall by law or by Standing Orders provide for all matters relating to the presentation of such an address, including the procedure for the passing of such resolution, the investigation and proof of the alleged misbehaviour or incapacity and the right of such Judge to appear and to be heard in person or by representative,” prompted the Court of Appeal to refer the clause to the Supreme Court for constitutional interpretation. Given the apex court’s sole and exclusive jurisdiction in this regard the Supreme Court seeks to derive logical and constitutionally sound resolutions from ambiguous phrasing of the section by the framers of the constitution.

Ex-CJ’s doubts about SC ruling

Former Chief Justice Sarath N. Silva, during whose tenure discussions on a ruling by the Supreme Court could only be whispered in dark corners for fear of being hauled before his court on charges of contempt, has waxed eloquent on state media regarding the fact that the Supreme Court had ignored the words “or standing order” contained in Article 107 (3) in its interpretation.

Dr. Udugama during the panel discussion, sought to clarify this tangle. She explains that the Supreme Court ruling conveys that while Parliament may by Standing Order make provisions for the presentation of an impeachment address and procedure for passing a resolution of impeachment as stipulated by 107 (3), the investigative aspect of the impeachment process must be provided by for by ‘law and law alone’. The Supreme Court reasoning for this is simple. The Court ruled that because the investigation procedure could adversely affect the legal rights of a serving judge – legal rights that are entitled to every citizen under the constitution – the process for judicial inquiry of the charges must be provided for through legislation that vests a particular tribunal with the power of inquiry. It is the Court’s assertion that this would ensure that the right of a judge to be granted a fair hearing would be upheld.

Standing orders subject to constitution

In other words, a Standing Order cannot vest a body of parliamentarians with judicial power, if it means that power could affect the rights of the person under investigation, since that is an inalienable power vested solely with the courts of law or tribunals set up through the passing of legislation. The question of parliamentary supremacy over its affairs by an ‘external body’ does not arise in the investigation process of an impeachment against a judge, because it not simply a case of ‘the business of parliament’ but an issue of a citizen’s fundamental rights – and jurisdiction over guaranteeing a citizen’s rights under the constitution, is undeniably vested with the courts of law and cannot be transferred to a legislative committee through a Standing Order. In fact, as the panel’s moderator, Suren Fernando Attorney at Law pointed out, Article 74 (1) of the constitution stipulates that Parliament may make Standing Orders “Subject to the provisions of the Constitution”.  In effect, a Parliamentary Standing Order may not read contrary to the provisions of the Constitution. If Standing Order 78A which makes provision for the setting up of a PSC to inquire into impeachment charges against a judge contradicts articles in the constitution pertaining to judicial power of the people or the rights of a person to fair trial for instance, the standing order is liable to be challenged in court for being inconsistent with the constitution as set out in Article 74 (1).

Unfortunately, the Government cares not a whit for these technical discussions on the principles governing the rule of law, the independence of the judiciary and a modern democracy. Having dragged the issue this far, blinded by a desire for vengeance against a judiciary that has dared not only to deny it what it badly wanted but for refusing to bow to pressure brought to bear upon it, the Government of President Mahinda Rajapaksa finds itself with no option but to push through and damn the consequences. Opposition parties are putting up valiant resistance against the Speaker’s moves to push through with the Impeachment debate and vote, in violation of the Supreme Court ruling and the Writ issued by the Court of Appeal, making the PSC findings legally void. According to UNP General Secretary Tissa Attanayake, there was no legal basis upon which to debate an impeachment resolution because the report of findings had been declared null and void by the courts.

‘CJ’ must go’

But none of this is of any consequence. The UPFA Government is determined to have its way. Bandaranayake must go and it will risk international condemnation and reprisals, unceasing legal battles and even force to get it done. If the threat of having the Commonwealth Heads of Government Meeting later this year being taken away was a concern a week or two ago, it is no longer a major impediment with the Government having made a decision that it needed to move the national discourse away from the impeachment as soon as possible. In fact, the discussion on impeachment, separation of powers and the independence of the judiciary is getting too widespread for comfort as far as the ruling regime is concerned. Its calculation is that it needs to remove Bandaranayake from office as soon as possible and divert public attention from the issue and in this the Government is convinced that the peoples’ short term memory will help to cushion the post-impeachment aftermath. The Presidential Secretariat has been blowing hot and cold over the impeachment, with the Presidential Spokesman denying on Tuesday a news item that appeared on the Government Information Department’s website indicating that the President had appointed a four member independent panel to review the PSC report. Presidential Spokesman Mohan Samaranayake who was quoted in some sections of the foreign press as saying the panel had been constituted and would commence deliberations on 7 January, retracted the next day, claiming that no committee had been set up so far. The confusion in the Government camp indicates that there is some degree of trepidation despite the conviction that the process must go through, with the legal fraternity throughout the country mobilizing at hectic pace. Even as the Impeachment Motion is scheduled to be taken up for debate today and tomorrow, the Lawyers Collective will be joined by the UNP and other opposition parties as they march on Hulftsdorp Hill in against the move to oust the Chief Justice. The Bar Association of Sri Lanka has also decided to go on strike today and tomorrow as Parliament prepares to debate and vote on the motion despite the court ruling annulling the process. Several branches of the Bar have also declared court boycotts and many of these organizations will join the lawyers’ march today. The UNP also appears to be contemplating future legal action against MPs that have crossed over to the Government after being elected to office under the elephant symbol. On Tuesday, the Party decided to issue writs on all MPs in Parliament that contested under the elephant symbol – including the eight SLMC members – that they were to vote against the impeachment. UNP Senior Vice President Lakshman Kiriella charged earlier this week that every MP that had taken an oath to protect the constitution could be expelled for working contrary to an order by the apex court that the process to impeach the Chief Justice was unconstitutional.

All this notwithstanding, by sunset tomorrow, Chief Justice Shirani Bandaranayake will stand impeached – unconstitutionally and illegally perhaps – but removed from office with a Government “approved” new Chief Justice already waiting in the wings. Former Attorney General, presidential advisor and Chairman of Seylan Bank Mohan Pieris is the chief contender for the new appointment. It is learned that several other retired officials approached have refused to accept the position under the circumstances. However, Pieiris enjoys the support of senior regime officials and is widely speculated to have been involved in drafting the impeachment motion against Chief Justice Bandaranayake.

These facts now seem inevitable. How the legal community and civil society continue to react in the post-impeachment phase and how long the struggle can be sustained will remain to be seen.

There is a school of thought that this attempted removal of the head of the country’s judiciary is creating more of a hue and cry than it should. Sri Lanka’s judiciary has rarely been free of political interference and indeed, has made more than its share of grave errors of judgments that have cost the country dearly. But this much is obvious. The desire to remove a top judge of the country for political reasons has never been more clear and more adamant. According to President’s Counsel Srinath Perera, there is a reason why this battle is more than just a storm in a teacup. If it were to become so easy for a Government in power to drag a sitting judge out by the ear each time they met with the regime’s disapproval, the condition and situation of Sri Lankan judges would be similar to that of Sri Lankan police officers. There is a reason judges are granted tenure, why their appointments and removals are supposed to be so stringently fair. Imagine, for instance, Perera says, if walking into a courtroom was similar to walking into a local police station where political power and influence hold complete sway? The judiciary, flawed and broken as it might be, in need of reform though it might be, remains still the citizen’s final hope of redress against the politically powerful and the excesses of the state. Activist lawyers say this is why this struggle may the last true battle for liberty Sri Lankans may need to fight.

Shadows of the future?

Many dire predictions have been made for the next 72 hours. There is speculation that a presidential proclamation for Bandaranayake’s removal may come on Saturday (12) and her successor appointed on Monday (14). Rights watchdogs and members of the legal fraternity worry that the doors of the Supreme Court Complex will be locked against the incumbent Chief Justice and that she will be prevented from entering the courts by force if necessary. But it may well be that the transition will be smoother than ever, once the Government gets its way and breathes a sigh of relief following many months of battle.

In every anti-democratic and autocratic state in the world, there must have been a week like this one. It may have been that in those societies too, the citizenry at large did not realize what was unfolding. The journalistic fraternity have learned to dub this month as Black January, because an astounding number of atrocities committed against the free press have occurred in the first month of the year. Perhaps in the years to come, Sri Lankans will call it a black month because it was also the month in which Sri Lanka ceased to be a constitutional democracy. It may not all end in a single day, but just like some lights in this democracy were turned off with the passing of the 18^th Amendment, the impeachment of Chief Justice Shirani Bandaranayake tomorrow, may also prove a harbinger of what is to come. Coming events, they say, cast their shadows long before. Liberty, justice, democracy and the rule of law – these are fragile, tenuous concepts. They require constant watching over, constant stewardship, constant reinforcement and strengthening. The damage to democracy over the years in Sri Lanka has already weakened the struggle to keep these concepts alive. How much can be done to reverse this trend in the next 24 hours and the days and weeks ahead by civil society, opposition parties and the legal fraternity will determine the country’s future course. Blink now, and it’s over.

Courtesy Daily FT