Republic no more?

The removal of Sri Lanka’s top judge in a process deemed illegal and unconstitutional by the highest courts of the land is being touted as a major victory for the ruling alliance. But critics say the move has deeply wounded the country’s democratic credentials

By Dharisha Bastian.

Published on March 04, 2013 with No Comments


Dr. Shirani Bandaranayake, Sri Lanka’s 43rd Chief Justice committed a cardinal sin.
Her final months on the bench of the Supreme Court were marked by a series of judgments that did not find favour with the ruling regime. In early November when her ruling blocked legislation that granted sweeping powers over a large Government fund to a powerful Government Minister for the second time, the writing was on the wall.

Two months later, President Mahinda Rajapaksa sacked Shirani Bandaranayake, after 155 legislators overwhelmingly voted to impeach her, despite rulings by the Supreme Court and Court of Appeal that the impeachment process was deeply flawed and illegitimate.

Sri Lanka’s justice system is no stranger to political interference. Judicial history is replete with examples of poor choices by the political leadership of the time that had damaging repercussions on judicial institutions and the citizen’s right to legal redress. In fact, over the years, the courts have played their part towards eroding democracy and fundamental freedoms by strengthening the hand of the executive. The highest court approved the 18th Amendment to the Constitution that removed presidential term limits and an expropriation bill that allowed the state to selectively acquire assets and enterprises held by private citizens. In a landmark ruling, the Supreme Court also barred political parties from sacking legislators who crossed over to the Government, which has helped to create the artificial two thirds majority the ruling coalition commands in Parliament today.

But for all its flaws, the system has also remained quasi-independent, with judges in the recent past issuing warrants on ruling party parliamentarians and hauling cabinet ministers up on contempt charges. The Government’s determination to remove Bandaranayake without fair trial and in a process that has been declared legally void, activists like J.C. Weliamuna say, heralds the end of judicial independence. The ease with which the Government executed Bandaranayake’s removal will strike at the heart of the justice system, with judges henceforth compelled to make rulings with a sword of Damocles hanging over their heads, he says.

Following a widely publicized trial by Parliament that consistently showed a glaring lack of due process, the committee probing the impeachment found Bandaranayake guilty on three counts. The Court of Appeal quashed the findings of the Committee after the Supreme Court ruled the investigation was unlawful.
But Bandaranayake’s defiance in the face of a powerful executive had irked the regime at the highest levels. Despite the international outcry and unceasing pressure from the legal fraternity, Parliament decided to dismiss the ruling by the apex court and forge ahead with her removal. Government legislators denounced what they termed was ‘interference’ by the judicial branch on the business of Parliament.
On January 15, a legal community that fought hard against Bandaranayake’s removal, declared that darkness had fallen at noon, as the ruling coalition garrisoned the Superior Court Complex in Hulftsdorp in order to prevent Bandaranayake entering the premises and hastily appointed former Attorney General and close ally of the regime, Mohan Peiris to head the country’s Judiciary.

Peiris’ appointment has already been challenged at the Supreme Court, which he now heads. Never before has the appointment of a Chief Justice in Sri Lanka drawn such derisive international condemnation.
Bandaranayake’s removal and the appointment of a successor to the chair of Chief Justice, has plunged the country into unprecedented constitutional crisis.

From a constitutional and legal perspective, the new appointment has no basis in law. In effect, Sri Lanka has two Chief Justices. “In my country, which is a democracy, where the rule of law is the underlying threshold upon which basic liberties exist, I still am the duly appointed legitimate Chief Justice,” Bandaranayake said as she left her official residence last month. President’s Counsel Srinath Perera vows that the day of reckoning will come, even years from now for those who violated the country’s constitution in appointing Bandaranayake’s successor in violation of the court rulings. The legal fraternity, led by the powerful Bar Association has vowed not to recognize the new appointment. But as the days wear on post-impeachment, it appears as if the status quo, despite being challenged in every quarter, will remain.
Critics say the decision of Parliament to ignore the dictates of the Supreme Court and push through process deemed constitutionally unsound, marks the unofficial end to Sri Lanka’s claims of being a constitutional democracy. The power of the Supreme Court to pronounce on the constitutionality of draft legislation and ambiguous provisions of the constitution has never before been challenged by the country’s legislature. Lawyers and activists warn that a precedent has been set, setting the stage for Parliament to ignore the rulings of the highest courts at its whim.

For the time being, it looks like the Government will get away with Bandaranayake’s impeachment. But the devastating assault on the judiciary will not be without consequences. Undermining its own justice system could prove fatal for a country that has been trying to ward off a potential international war crimes inquiry.
Peiris was a member of the delegation to Geneva last year, where he stoically defended the actions of the military and denied the forces were guilty of violations of humanitarian law. The incapacity of a country’s justice system to credibly investigate violations of humanitarian law, invites international intervention. This will be a key issue when the Sri Lankan delegation faces off against the UN Human Rights Council this month, with Peiris, very much the Government’s man, now at the judicial helm.

International condemnation of Bandaranayake’s impeachment has been unanimous and unceasing. As hosts of a major Commonwealth Summit in November this year, Sri Lanka is bound to uphold the core values of the organization. The Commonwealth is a vociferous critic of the process to remove the Chief Justice, saying it violated the principles of judicial independence and separation of powers that the organization espouses. The US Government has warned repeatedly that the impeachment and its ramifications for judicial independence could seriously hamper Sri Lanka’s chances of attracting foreign investors to the country.

But the ruling regime places little value on its democratic standing in the world. Still basking in the triumph of the war victory and assured of the support of emerging powers like China, the Government believes the international furore over the impeachment is no more than a storm in a teacup. To dismiss international concerns entirely however, would be arrogance. Beijing, which the Government considers its godfather, is still coming to grips with how it lost influence in Myanmar, (whose ruling junta China backed to the hilt), to the West in just one year. India, as the major power in South Asia, believes it has a moral responsibility to ensure autocratic failed states do not emerge in its backyard. As Beijing and New Delhi grow into becoming global powers, realization is also dawning that economic prowess alone will not give them authority in the world.

To ignore these developments would be imprudent for a regime that governs a tiny island in the Indian Ocean, so dependent on friends and allies in the world. If the Government continues to mutilate every democratic institution in order to tighten its grip on power, international isolation could come much sooner than anticipated. A world that is currently watching the transition from dictatorship to democracy across the Middle East and realizing the heavy human cost of that struggle is unlikely to allow one of Asia’s oldest democracies to regress without taking pause.


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