Originally Published 2013-01-14 00:00:00 Published on Jan 14, 2013
As a follow-up to the impeachment motion passed by Parliament by a two-thirds majority, Sri Lankan President Mahinda Rajapaksa has sacked the nation's Chief Justice, Shirani Bandaranayake.
Sri Lanka: After the sacking, a new CJ?
As a follow-up to the impeachment motion passed by Parliament by a two-thirds majority, Sri Lankan President Mahinda Rajapaksa has sacked the nation’s Chief Justice, Shirani Bandaranayake. The week-end decision gave a lie to earlier pronouncements of the President referring the motion to four eminent persons for their opinion before deciding on the matter, but then there was little that they could have done, given the binding nature of the parliamentary resolution under the Constitution.

Ever since moves were initiated for the impeachment of the Chief Justice, it was clearly known that the decision at every turn and step would depend on President Rajapaksa and his political advisors. The parliamentary motion, initiated by 117 MPs belonging to the ruling SLFP-UPFA combine, had cited 14 reasons for impeachment and the Parliamentary Select Committee (PSC) upheld three charges, leaving most others untouched, un-investigated.

The divided Opposition, while united with the Government on the larger issue of the supremacy of Parliament in the matter, would not have none of the Treasury argument that the due procedure was lacking in the matter. Their hands were strengthened after the Judiciary, the third of the three Estates in a traditional democracy, said that the Parliamentary Standing Orders were inadequate for undertaking a pre-impeachment, parliamentary investigation. The court said that a separate law, passed by Parliament, was required for the purpose.

As important as the court finding on impeachment procedure was the ruling that the Judiciary was the final arbiter of constitutional issues. A traditionally-acknowledged position, the present verdict will have long-term consequences. Coming as it does after the court clearance for the Eighteenth Amendment, in turn annulling the Seventeenth Amendment to the Constitution, which had created a multi-party Constitution Council for appointments to high posts in Governments, the court ruling in the impeachment case has the effect of a review of certain legal positions and judicial rulings from the none-too-distant past.

Between 18-A and 17-A

In political terms, the impeachment motion saw divisions within the ruling combine, and also in the Opposition, though of varying degrees. Two senior Ministers from the traditional Left, namely, D E W Gunaeskara and Prof Tissa Vitharana, abstained from voting while their comrade-in-arms and Minister Vasudeva Nanayakara and another voted with the Government. A National List MP of the SLFP leader of the ruling combine, Prof Rajiva Wijaysinghe, also abstained. The Opposition parties were divided on concepts and tactics. The main Opposition United National Party (UNP) has since said that rebels from the party, including those already in the Government for long years, would face disciplinary action.

For starters, the Eighteenth Amendment has conferred on a Legislative Council, as different from the independent Constitution Council, the power to recommend names for ’high posts’ in Government, of which the Chief Justice post is one. However, unlike the Constitution Council, the present system does not provide for mandatory acceptance of the choice by the Executive President. It is not unlikely that the appointment of a new Chief Justice would not be challenged before the Supreme Court, on this score.

However, the sacked Chief Justice may still reserve the right to challenge her impeachment before the Judiciary, which she had presided over until the previous day. She has the earlier court ruling against the Standing Orders to go by. Having challenged the Government’s initiative on the perceived premise that her honour and dignity may have been compromised in the process, there is nothing as yet to suggest that she would not challenge the formal impeachment, post facto.

Any challenge of the Executive order of impeachment, which in turn is backed by a two-thirds majority, in and by the Judiciary would have consequences for Sri Lanka as a nation. If the issue is only procedural in nature, the Government’s two-third majority in Parliament would still be adequate to pass a new law on impeachment proceedings, promised by the Government after the Court of Appeal, acting on the advisory opinion of the Supreme Court above it, had stuck down the Standing Orders route.

With Chief Justice Bandaranayake still having over a decade of service ahead of her, the impeachment could be passed under the new format. The dignity and honour of the Chief Justice, who is now seen as a ’fighter’ and/or ’defender of democracy’, may come under fresh and constitutionally-backed legal and political attack. Her position then could well become indefensible, particularly if the political Opposition that is now with her on the issue, sticks to the argument favouring parliamentary supremacy over judicial independence.

Govt firm on CJ exit

It may not come to such a pass, however. The Government was/is determined not to adapt a new law for the impeachment of the Chief Justice. Sri Lankan media, quoting official sources, have said that the Government was not prepared to give Bandaranayake time till April, as reportedly sought for her to resign her post, after Parliament had passed the impeachment motion on Friday evening. According to the reports, the President was however ready to have Chief Justice Bandaranayake resign immediately, so that the impeachment order need not have to be signed.

Bandaranayake would have secured her pension benefits in case of resignation, not after impeachment. The question may be raised if after impeachment, if Bandaranayake could be allowed to practice in the Sri Lankan Bar. At present, a majority of the Bar and the Judiciary at all levels are behind her, but the situation may change, after all, if and when she is out of office. With a new Chief Justice around, things may take a different turn, after all. However, sections of the Bar and the polity have declared that they would not accept a new Chief Justice, but their numbers do not seem to be big.

CJ’s challenge?

The situation could take a turn for the worse if, however, Bandaranayake moved the Judiciary, challenging the impeachment, basing her arguments on the existing ruling of the Supreme Court and the Court of Appeal, in her favour. This could have other consequences, too. The Judiciary could haul up the Executive and the Legislature for contempt of court. The Legislature could return the compliment by initiating breach of privilege against members of the Judiciary, Bar, political parties and civil society organisations that have backed Bandaranayake.

Both before and during the parliamentary debate on the impeachment motion, Government members have charged collusion between sections of the Judiciary, the political Opposition, and possible external forces to destabilise Sri Lanka and attempt ’regime-change’. They had levelled similar charges, but keeping the Judiciary out of it, ahead of the post-war presidential polls of 2010. Surprising many, then armed forces’ chief Field Marshal Sarath Fonseka, the ’military hero’ of the ’Eelam War IV’, quit his post and challenged President Rajapaksa, the ’political hero’ of the war.

What followed in Fonseka’s case afterward, as they say, is history. It included a sordid chapter on two courts martial finding their erstwhile army chief guilty of criminal offences, leading to his cashiering and imprisonment. The Judiciary had upheld the procedure followed by the courts martial at the time. Out of prison at present, Fonseka, now leading the Democratic National Alliance (DNA), has extended support to Chief Justice Bandaranayake. The latter, however, has kept away from involving politicians in her battle.

If the international community hoped that the Rajapaksa leadership would not go out of the way to embarrass itself in its eyes through the impeachment move, that was not to be. They had made similar appeals on behalf of Fonseka, when legal troubles began haunting him after his electoral defeat in 2010. Yet, the West continued to do business with Sri Lanka. So did China, which country Fonseka was visiting at the time of conclusion of ’Eelam War IV’.

In the post-Cold War world, Colombo seems to have understood the limitations of big-power diplomacy, and has also learnt to exploit it to its political benefit. It has been so after the high-pitched US resolution on ’accountability issues’, which Washington had made a prestige issue of sorts at the UNHRC, Geneva, in May last. In comparison the four-yearly review of HR record in November was a tame-affair.

In upcoming March, the UNHRC is expected to discuss, the progress report, if any, on Sri Lanka’s commitment from March last, on the implementation of the Government-appointed LLRC. However, the time-lines give cause for relief for the Government, which has understood the limitations of the global processes. Whether the CJ impeachment could be cited as one more instance of HR violation in a broad sense of the term remains to be seen, but then the international community did not make much of the war-time allegations on the HR front that did not relate or flow from the war itself.

Whither Commonwealth Summit?

What is of greater consequence for the Government now should be the decision of member-nations on the conduct of the Commonwealth Summit in Sri Lanka later this year. The UK, as the titular head of the Commonwealth, has expressed concern, so has the US, which is a non-member but whose influence in international matters cannot be undermined, either.

Canada, a lead-member of the Commonwealth, has been threatening to pull out even before the CJ issue, basing its arguments on the ethnic issue, war and violence, and consequent ’accountability issues’. Australia, post-impeachment, has however backed Colombo on the Summit. Both nations have a substantial Sri Lankan Tamil Diaspora constituency, in electoral terms and otherwise. Australia also counts on Colombo for coordination in halting ’human-trafficking’ of Sri Lankan Tamils to the country.

Whatever be the background to, and consequences of the Chief Justice’s impeachment, Sri Lanka has stalled discussing the ethnic issue and debating the processes - which is where the role for a PSC was mentioned first in recent years. So has the international community, which seems keen on sticking to the Government’s deadline for LLRC implementation rather than forcing issues all over again. In between, however, any constitutional crisis flowing from a possible judicial intervention with the impeachment at this late stage could still have domestic consequences of an unprecedented kind. That is what the Government would be keen on averting. The Commonwealth Summit and the rest would flow from it.

(The writer is a Senior Fellow at Observer Research Foundation)

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N. Sathiya Moorthy

N. Sathiya Moorthy

N. Sathiya Moorthy is a policy analyst and commentator based in Chennai.

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