17 October, 2021

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The Judiciary Should Take Politics Seriously

By Kalana Senaratne

Kalana Senaratne

The clash between President Mahinda Rajapaksa and Chief Justice Shirani Bandaranayake, popularly (and wrongly) perceived as a battle between the executive/legislature and the judiciary, does not provide much hope for the latter. Both parties are presently engaged in a drive to convince the people of their narrative, their case. President Rajapaksa’s publicity campaign, as well as the manner in which some of the charges against CJ Bandaranayake have been framed (with prominence given to matters of financial impropriety) has had an effect among the people. That CJ Bandaranayake has understood this is reflected in the response issued by her through her lawyers, denying these serious charges; implying further that the rest of the charges are so flimsy that the trouble need not be taken to even refute them.

The immediate outcome of this personal rift may not be surprising. 14 ‘impeachable’ charges have been leveled, with a minimum of 1 charge being needed to be proved. 11 Parliamentary members are to decide the case, with 7 of them from the governing coalition (which has already decided that CJ Bandaranayake should be impeached). So the outcome is somewhat clear. Perhaps the only thing that CJ Bandaranayake can do is to transform this impeachment-process into a mission which will, inter alia, expose the government and any shady dealings of its members, the instances when (as claimed) the higher judiciary in particular was intimidated, etc.

However, what is perhaps clear is that the present clash has once again shown the fragmentation of Sri Lankan politics (especially opposition-politics) and the challenges confronting anti-government political resistance within the country.

Divineguma Bill

Initially, numerous reasons were adduced to explain the rationale behind the move to impeach the CJ Bandaranayake. Many critics pointed out that the move was largely prompted by the SC’s initial determination on the Divineguma Bill. Having to consult the Provincial Councils (PC) was considered to be a significant blow to the government.

But placing too much emphasis on this was problematic for a number of reasons. For instance, the initial SC-determination was not a radical or unprecedented one anyway; the SC has, on previous occasions, determined that certain Bills required the approval of the PCs, even the approval of the people at a referendum (as the erstwhile UNP-led government was made to realize in 2003, regarding the two SC determinations on the Land Ownership Bill and the Water Services Reform Bill). In the present case, given its majority in Parliament, the composition of the PCs and the state of the opposition, the government would not have been overly worried by the SC-determination.

A more nuanced argument would therefore be that it was largely the status of the Divineguma Bill vis-à-vis the Northern PC that really concerned the regime. The most recent SC determination spelt out that the Bill needs a 2/3rds majority in Parliament given the absence of the Northern PC. Yet, the response of the government has been to announce that it would move the necessary amendments during the Committee Stage of the Bill, in keeping with the SC-determination. In the final analysis, not much has happened to compel the government to withdraw the Bill. Like the 18th Amendment, the Divineguma Bill seems to have sailed through comfortably; exposing, inter alia, the impact that the judiciary can make within the current constitutional framework, even when it calls for the approval of Bills by a 2/3rds majority in Parliament.

CJ: misreading government antics and implications

Whatever the accuracy or otherwise of the charges leveled against the CJ may be, one of the most unfortunate aspects of this entire drama is the inability she seems to have shown, wittingly or unwittingly, in reading the antics of the government and the trap that was set for her when her husband was offered plum posts by the government. The government seems to have targeted the weakest link. Once the husband of the CJ is seen to be holding a post so lovingly and generously offered by the government, President Rajapaksa would have known then that half the battle (if there is to be one) was won anyway.

With this, however, many things seemed to have happened. On the one hand, the critics of the regime were initially pushed to a situation where they had to completely ignore this aspect and accuse the government that a witch-hunt was on. That it is a witch-hunt is obvious, but in having to ignore this ‘husband-factor’, the allegations leveled against him, and how all this reflected on the CJ, the critics soon began to mimic the very unethical government they had begun to critique; everything was fine as long as your opponent can be attacked. To those who were serious about the judiciary and its relevance in contemporary politics, this sudden rush towards adopting such a counter-productive, unethical, stance would have been most baffling; especially when the very same critics had attacked the judiciary and even CJ Bandaranayake to have been a pawn of the regime.

That such a stance was counter-productive is reflected in the pathetic situation that the UNP has fallen into. The government knows well that the UNP’s opposition to the impeachment move will not go down well with the masses, precisely because it was the UNP that attacked the CJ’s husband in Parliament. Suddenly, when the government decided to investigate these charges (of course, for its own ulterior motives), the UNP was helpless, unable to continue with its stance in any clear or convincing manner. Hence the initial trepidation in the UNP’s response to the impeachment motion. What the UNP, and its lawyers like Mr. KN Choksy, PC, were able to do was to take the classic formalistic route of setting out the constitutional procedure governing the impeachment of a CJ. But even this was a hopeless cover, given the skewed procedure leading to an impeachment of the CJ, the provisions of which were drafted and introduced by the UNP itself. The current spectacle couldn’t have been more hilarious than this, and the government knows this absolutely well.

In addition of course, the UNP’s response could be read in another way, especially at a time when the UNP leadership is inundated with court-battles. If the UNP’s leadership is aware that the possible replacement resulting from this impeachment motion is not going to be inimical to their interests (especially those of Mr. Ranil Wickremasinghe), then there is every reason for prominent members of the UNP to adopt a very lukewarm, formal and ‘legalistic’ approach to the impeachment motion.

Façade of parliamentary democracy and the poverty of resistance-slogans

Just as the global financial crisis revived the spectre of Marxist/Communist thinking, this government (like numerous previous governments in Sri Lanka) has amply demonstrated why many elements of a Marxist-critique of the law are relevant to understanding its corporatist drive. The 18th Amendment, the Divineguma Bill, and much else have demonstrated why law remains an expression of politics; why the law has been used as a coercive tool, expressing at most times the economic interests of the dominant class; and why many of the legal/constitutional procedures are designed in a way that expresses the interests of the ruling regime, as it becomes clear (in this case) when examining the form and nature of the constitutional provisions and procedures set out to impeach a CJ.

Furthermore, this overarching context should provide an opportunity to rethink and re-examine the language of resistance that is adopted by opposition-forces, especially in relation to the impeachment motion. What is to be observed quite coldly is that irrespective of the fact that elements within the government are engaged in, and accused of, subversion of the legal and judicial processes, much of what is happening with regard to some of the more prominent constitutional and political issues, including the current impeachment move, is taking place within the parliamentary democratic framework and through the adherence to some of those very principles and doctrines that one imagined would put an end to nepotism and authoritarianism: the separation of powers, the rule of law, parliamentary democracy, universal franchise, to name but a few. While I have no problem with the idealism that animates the promotion of these slogans, I fail to see much liberating potential in these concepts especially in the current context.

Take for instance the old and fossilized concept of ‘separation of powers’, so ardently developed by the likes of Montesquieu in the 18th century. Even if one believes the concept of ‘separation of powers’ to be real and useful, that slogan is not helpful in the face of a government which is able to argue that it respects the determinations of the SC (as shown by its decision to amend the Divineguma Bill, and as the President highlighted in his budget-speech with reference to the SC decision on university students). It is precisely the government which shows that it is respecting the verdict of the SC; hence the separation of powers. This much is enough for the masses to believe in the government’s narrative.

What of the ‘rule of law’? It is precisely the rule of law that the government, in following the constitutional provisions on impeachment, is adhering to. Where the law is problematic, the slogan ‘respect the rule of law’ is meaningless (more so, in relation to something like the 18th Amendment). What one realizes also is that the law itself obscures many injustices, while also providing a convenient cover for those who are unable to take a stand on certain aspects of the impeachment motion. A serious change then needs to take place of the law before the very slogan – ‘rule of law’ – is to become more relevant and meaningful.

So too seems to be the case with the much abused slogan: ‘independence of the judiciary’. It is unnecessary here to enumerate why judicial institutions are also political institutions (note: this is not necessarily a critique of judicial institutions) and the best one can do with the judiciary is to ensure that the appointment to such institutions appear to be ‘independent’ (which is why demanding a better system of appointment than which is set out in the 18th Amendment is still relevant).

Yet, the demand that the critics often make – re-establish the independence of the judiciary – is problematic in this specific context for a number of reasons. Such a demand obscures the question whether the people have perceived the judiciary to be ‘independent’ in recent times. Also, if the judiciary has not been independent, then re-establishing an independent judiciary remains questionable. Also, it is questionable whether an ‘independent’ judiciary (let’s imagine there are such judiciaries) can, by remaining ‘independent’, stem a mammoth undemocratic tsunami that is generated by a mighty executive and legislature. In such a situation, it is perhaps necessary to get rid of the artificiality of this slogan, since it does not give adequate expression to a demand we need to make more clearly of the judiciary, of asking the judiciary to change course.

Conclusion: taking politics of change seriously

There is no serious reason to suggest that this government has been overly troubled by the SC. Why should it be, when it was this same SC that approved the 18th Amendment; which seems to be the single most important and significant piece of legislation that this government has introduced with the hope of providing space for the perpetuation of its existence? Why should it be, when this executive is anyway aware of the limitations of the SC within the current constitutional and political framework? Given these reasons, the episode that has just unfolded has all the signs of ending up as just another meaningless rift; one big bourgeois spectacle that thrills and entertains us whenever the mighty and the powerful in these different branches of government decide the engage in their petty and arrogant squabbles for power and prestige.

Nothing much is going to come out of it, unless the judiciary takes the political character of its role and existence more seriously. At this critical juncture, it may be useful for some of us to proclaim in a more forthright manner what is needed (without resorting to artificial doctrines that we have used and misused for so long).

What needs to be said is: we do not perceive the judiciary as some apolitical institution cut off from the rest of the people. It is an institution that needs to take politics seriously. This is not only a case of playing a critical interventionist role in society given the absence of a viable opposition. This is not only a case of being mindful about the different methodologies that party-politicians may adopt to trap members of the judiciary. Most importantly, this means that the judiciary needs to consider seriously how it can open up spaces for real politics of change to take place. To do this, we need judges who can resist the authoritarianism of this government, and arrest the degeneration of society; those who can inform the executive and the legislature where necessary, that it is simply out of order. And importantly, we need judges who take this role seriously from the day they are appointed to the judiciary, at any level, against any government.

There is no hope that any of this will take place in the immediate future. But it is necessary for these different arms of government to realize that transforming the skeptical masses into a cynical lot will not auger well for the country.

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Latest comments

  • 0
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    Very educative and thought provoking as usual.

    Dr.Rajasingham Narendran

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    Author seeks to confuse the role of parliment and the judiciary by saying that judiciary should consider political realities. Rule of law is for the Government to follow. Deciding wether the Govt is following the laws of the land and upholding the constitution is the job of the Judiciary. It is clear as that.
    There is no need for the judiciary to involve in Politics. This appears to be a political smokescreen to confuse people and lay the blame on the judiciary.

  • 0
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    Kalana,

    The SC determination is that the Divinegamuva Bill requires 2/3 majority in Parliament in the absence of Northern PC for the act to be applicable throughout the island.

    Further,

    The Supreme Court has ruled that certain provisions of the proposed bill require a two thirds majority to be passed in Parliament and the Supreme Court has also ruled that the envisaged bill impinges on certain entrenched clauses of the Constitution thereby requiring 2/3 majority plus an Island wide referendum to be passed and made law.

    Amendment to the relevant clauses in terms of SC determination could make the need for referendum irrelevant. However no amendment is going to change the need for the 2/3 due to absence of Northern PC.

    If parliament passes the bill with simple majority, then the act is inapplicable in the NPC.

  • 0
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    Your verification is positive and illuminating. yet CJ has determined to fight back.MR has attempted to give her the bait in appointing her husband to high political posts. . Yet history will record that MR was unable to tackle the lady. Her fight against corrupt regime has to be recognized.

  • 0
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    Another wanna be “politician” Says: “It is an institution that needs to take politics seriously”

    In a democracy we see “a politician as one who speaks the truth and sandwiches them with lies”

    Open up your mind be true to thy self then it will dawn unto you that the Judiciary needs to be a well versed in “Rational Ethics” and this does not follow automatically. However, a rational mind can dream what a dream cannot reason.

    It is the ballot that brings the mega politicians to power not the judiciary and it is for the citizen to decide whom they bring in to power. Alas Sri Lanka has cultivated “block votes” using the emotion of religion and race for the past 60 years that’s the cause of 90% of the citizen’s having an IQ below 75 ;)

  • 0
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    Politicians interfering with the judiciary and vice versa has been normal practice for many decades in Sri Lanka. As long as they have a symbiotic relationship – you kiss may ass and I will kiss yours – both worked in harmony. There was a price to pay and the price was paid by people who were affected by the decisions that were made. This, as one would expect, goes against democratic principles but the people tolerated this practice. Governments in Sri Lanka have tended to be slightly authoritarian although elected democratically.

    The present problem arose when an independent minded CJ decided she was not going to be a “yes” person to the executive. She was also felt humiliated by the regime’s treatment of her husband. She also felt trapped and had no choice but to fight back. What she is faced with is someone who is determined to acquire absolute power for himself at any cost. We have to wait and see how the drama ends.

  • 0
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    Very interestring discussion with a very serious tone. In a lighter tone let me say she is a great lady having that much of strength to stand for what is right.She in not only a great judge, she is a greater wife for standing together with her honest husband who is(wrongly or rightly) accused of thing considered unethical

  • 0
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    This piece is a laboured but fruitless analysis of the present attack on the judiciary. That is what is it- an attack on the judiciary, and not a ‘clash’ between the two as the writer has attempted to portray.

    He has also sought to identify what he calls a ‘more nuanced argument’ and tried to argue that the ‘status of the Divineguma Bill vis-à-vis the Northern PC that really concerned the regime.’

    The attempt to impeach the CJ is part of the executive’s plan to cow the judiciary into submission. The legislature is a rubber stamp and doing the bidding of the executive. the real culprit is the executive.

  • 0
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    Kalana wants the judiciary subserviant to the executive.
    This is against all norms of democracy.

  • 0
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    Excellent article to educate others and make awareness of the reality. Not only the Judiciary should take politics seriously, but the other sectors as well, especially the educational sector. Politics involves in every sector, therefore every other sector leaders should follow Chief Justice Shirani Bandaranayake, this is the only way to make Sri Lanka as wonder of Asia and knowledge hub.

  • 0
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    I find this argument of Kalana’s quite untenable in that it is suggested that the judiciary take poliics seriously! This suggestion is quite antithetical to the constitutional notion and value of a judiciary.

    He scoffs at notions such as the independence of the judiciary and the Rule of Law saying that these terms have no meaning. However, a decade ago, Sri lankans did not scoff at an independent judiciary since we had one. True, there were aberrations but by and large, we respected the Court. The judiical thug Silva destroyed all that and those who followed either played the game willingly like Asoka de Silva or realised that if the game was not played, the post of CJ would never be given, like Shirani B.

    While these realities remain, that does not mean that judges should not be exhorted to live up to the value of an independent judiciary. Scoffing at this notion is a meangingless task.

    Whatever the CJ has done or not done, what critics of the impeachment are pointing out now is the questionable circumstances in which this motiion was filed. That is a legitimate argument surely. I fail to see any great contradiction between this and previous calls into her conduct.

    Similarly with the Rule of Law. Kalana says that the impeachment is being followed in accordance with the Rule of Law. There have been many demands from decades ago to amend this procedure along the lines of the Indian reforms. But the Rule of Law does not mean only strict adherence to procedural norms. It also means fairness, equity. And those principles have been flouted by the circumstances of this impeachment.

    These are dangerous undermining arguments Kalana. I am disappointed in you.

    certain basic facets of it

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    The author clearly explains who appoints the people in higher positions and what takes to bring a change, if you dare to stand up for yourself and for others. However, the comments are not reflecting that major point of this article. I am disappointed, now I believe Sri Lanka has the highest number of brain drain in whole Asia.

  • 0
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    The whole purpose of having an independent judiciary is to insulate that institution from the vagaries of politics and the influence that politicians in particular may wish to wield over it.

    As individuals judges will of course be interested in politics and may follow political trends but they should not allow it to influence their decisions.

    The author is obviously trying his best to suggest that the judiciary should take heed to political realities, which is a shorthand for saying that judges should compromise on principle. Is n’t it what politicians do all the time? Jumping from one bandwagon to another.

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