Shorn of verbiage, the Sri Lankan Supreme Court's advisory for the Court of Appeal on the impeachment proceedings pertaining to Chief Justice Shirani Bandaranayake is clear. The nation's Apex Court has held that the impeachment proceedings have to be under a separate law that is passed by Parliament and has the President's assent. It cannot be done through the Standing Orders of Parliament, which is an internal reference-point for the Legislature and does not have any legal binding.
Based on these combined findings, the Court of Appeal has since admitted Chief Justice Bandaranayake's petition, challenging the PSC process and also quashed the proceedings before the parliamentary panel. Unmindful of the court verdicts and also the Opposition boycott of the PSC first and the proposed full House debate, Parliament has scheduled the latter for January 10-11. In the normal course, Parliament, with a two-thirds majority for the ruling combine, can be expected to approve the PSC findings. The ball would then rest in the President's court, who had initiated the proceedings, purportedly at the instance of 117 of the MPs supporting his Government.
The question now before the Government is if it would want to still proceed with the pending process in the House and debate and vote on the otherwise predictable report of the Parliamentary Select Committee (PSC), recommending impeachment of the Chief Justice - or, use the now schedule full House debate for the signatories to the original motion to withdraw the same at this late stage. The Government can drop the impeachment proceedings here and now, and let bygones be bygones. It can have Parliament pass a new law on the lines indicated by the Court of Appeal, which based its ruling in the matter on the Supreme Court's opinion. It can proceed with the current process, and take it to the logical conclusion - or, as logical as it can be from this stage in the proceedings.
Mired in pitfalls
All three options are mired in pitfalls, however. Leave alone the political ego of the party or parties in power, or the person of the President of Sri Lanka, the ego of the Sri Lankan State too would be hit if the Government were to be seen as doing a U-turn on the issue at this late stage. It could have consequences far more than the immediate political circumstances. The Government would hence have problems acknowledging the court ruling with such finality as the political Opposition, vociferous sections of the civil society in the country and the international community (read: West) too have been asking for.
Accepting the court ruling in toto will also have consequences for the ruling SLFP-UPFA in political terms. Despite near-similar views on the impeachment issue, the divided and dis-spirited political Opposition is still daggers drawn as much at one another as at the Government. They would have a cause for collective celebration. They would project the Government acceptance of the court ruling as the beginning of the end of the Rajapaksa presidency. The ruling alliance cannot afford it.
The question would also remain if the Government, if it decided to drop the impeachment proceedings, should sit silently on the PSC Report, or would have to ask the 117 ruling combine MPs to withdraw their original motion against the Chief Justice. In either case, it would have to be ensured that neither the political Opposition in Parliament and the affected party do not either move the House or the Apex Court (as the case may be) for debating or striking down the PSC Report. This again has legal and political consequences.
The second option would be for the Government to have Parliament pass a law on impeachment, without which two earlier proceedings of the kind had been initiated but without reaching this stage in their respective careers. That again could have legal consequences. One, it would still be up to the Supreme Court to decide on the constitutionality of the particular law in question, if enacted. The Government could even seek the court's advisory opinion, as often done, before moving Parliament with a law of the kind.
Yet, other questions would remain. If Chief Justice Shirani Bandaranayake were to be tried by another forum under a duly-formulated law, the question if the same person be tried twice for the same offence would arise. The Supreme Court having opined that the current PSC process was void in law, any new law could well be argued - and accepted - as the first investigation and impeachment under the constitutionally-mandated procedure. Yet, laws of natural justice might demand otherwise. Anyway, the tempo attaching to the pending proceedings would have also been gone - as much as the attendant controversies at present.
Constitutional deadlock?
Worse still however would be for the Government to ignore the Supreme Court advisory, as pronounced by the Court of Appeal, and proceed with the impeachment process, as if nothing had intervened. It could lead to the Opposition walk-out at the end of the parliamentary debate, or their voting against the motion, but the matter would not end with the two-thirds majority of MPs on the Government side, adopting the PSC recommendation.
For one thing, Chief Justice Bandaranayake could be expected to challenge the decision in the courts. She could either go to the Supreme Court, or move the Court of Appeal, even with a prayer on 'contempt of court' by Parliament. There is also the still pending case filed by her, challenging the PSC proceedings before the Court of Appeal. Either way, they have political and constitutional consequences for the Government. The Government could not ignore those consequences. The international community too could also be expected to ensure that the Government does not ignore it - rather, not overlook it.
At least two PSC members, namely, R Sampanthan (TNA) and Vijitha Herath (JVP) have responded to the court's notice in the matter. The UNP, with the largest chunk of Opposition members in the PSC, will have to take its decision. On the issue of the supremacy of Parliament in matters of impeachment, or constitutional tussle with the Judiciary, the TNA and the UNP seem to have near-similar positions. Yet, on the matter of enjoining the pending court proceedings, the TNA has since made its position clear. Having declared that the Government cannot ignore the judicial ruling in the matter, the UNP cannot delay a decision on joining the court proceedings without further erosion to its sullied and soiled credibility.
But that would be the least of the problems for the Government and the leadership of President Rajapaksa. Should any impeachment decision passed by Parliament is over-ruled by the Judiciary it could lead to an inevitable constitutional deadlock, which already seems to be in the making. If that stage has not been reached already, it is only because the Constitution has traditionally provided the checks-and-balances forums, where the issues are concerns are being agitated at present.
What could all that mean for Sri Lanka and Sri Lankans? The Supreme Court having outlined the basis on which it would have to decide on any impeachment of Chief Justice Bandarayanake as the culmination of the current PSC process, it would have little option but to hold the entire process vitiated under law and ultra vires of the Constitution. There of course could also lie the 'contempt of court charge', first against the Legislature, and later against the Executive, too, should President Rajapaksa act on the parliamentary vote and pass relevant orders.
It is here that the role of the experts' committee, mooted by President Rajapaksa would assume significance. Its role may not be to advise the President and the Government any more on the constitutionality of the processes and proceedings. That job has already been done by the Judiciary. The latter could also be expected to jealously guard its domain, not because it involves an incumbent Chief Justice but because the three arms of the State in a democracy, in Sri Lanka and elsewhere, have always been seen as doing precisely that.
In a way, it should also explain, if not justify, the Legislature and the Executive wanting to guard their respective turf against encroachment by the either or both of the other two arms of the Government. It could be argued that the Legislature having initiated a process, held subsequently unlawful by the Judiciary, but with the purported blessings of the Executive, cannot but back-track once the constitutional position had been clarified by that arm of Government mandated by the very same Constitution to do so.
Such arguments sound fine on paper, but falls flat on two counts. One, politics of Constitution-making and practice does not follow those kinds of rules. If that were so, nations could do without a Constitution, to begin with. If anything, instead, even in the UK, the 'Mother of Parliament' and of parliamentary democracy, where there exists only an 'unwritten Constitution' as students of jurisprudence would understand and acknowledge, the Judiciary does intervene ad
infinitum, to define the validity of laws passed by Parliament. It goes so far as to the debate and decision pertaining to the
'Case of the blue-eyed babies'.
Two and more importantly, in the case of Chief Justice Bandaranayake, as the ruling combine has argued at some stage in the political discourse on the impeachment issue, the Legislature acted in good faith. In the perception of Parliament (or, the 117 members who initiated the impeachment proceedings), they had acted in good faith, basing their case on existing procedures that had not been challenged in the two earlier cases.
Yet, the court since having clarified the legal and constitutional position, the Legislature cannot but accept the judicial dictum. Any other way to circumvent the court observations or orders could have consequences that go far beyond this particular case. For, the courts have also been circumspect in not wanting to hurt the Legislature's ego, and have desisted from sending formal 'notices' to Parliament and/or PSC members. The healthy precedent should not be violated by the other side even if it meant that Parliament may have questions for PSC members who have violated the 'collective decision' of the House in participating in court proceedings on the matter.
With the Government taking extra pride in hosting the Commonwealth Summit in the country later in the year, the impeachment proceedings are being watched as much from London as from Geneva, where the US-sponsored resolution would come up for further discussion in March itself. Some important member-nations have publicly declared non-participation in, or reservations on the Commonwealth Summit in Sri Lanka, citing the 'ethnic issue' and 'accountability concerns' flowing from 'Eelam War-IV'.
The Government can ill-afford further embarrassment on the Commonwealth front. It cannot afford to embarrass friends in the international community even more, granting that the impeachment move, like the ethnic issue before it, would still be a part of the democratic dynamics of Sri Lanka, with which the international community should not intervene. Yet, a constitutional deadlock on the impeachment issue would be a different matter altogether. It could well be the start of a process that the Colombo Government should try and avoid.
Maybe, to this end, the experts' committee that President Rajapaksa had mentioned should be set up here and now, without having to wait for Parliament to pronounce its verdict. Such a committee could either be formal or informal, but then it would also have to bear in mind that the continuance of Chief Justice Bandaranayake under the present political dispensation too has become as untenable as the court-voided impeachment proceedings against her.
For the Government, Leader of the House and Minister Nimal Siripala de Silva has said that the Government was considering whether to halve the 10-year term for the Chief Justice. It might require a constitutional amendment, for which again the Government has the numbers. That again would not help in this case, as Chief Justice Bandaranayake took over as the 43rd Chief Justice of the country only on May 18, 2011. The options for the Government are fewer thus, for the Chief Justice, still worse - when it comes to enforcing Parliament's will on the one hand and the Judiciary's decisions on the other.
(The writer is a Senior Fellow at Observer Research Foundation and the Director of the ORF Chennai Chapter)
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