The ghosts of expediency

Sri Lanka’s legitimate Chief Justice Shirani Bandaranayake may soon cease to hold what some legal minds have called that ‘de jure’ or lawful title.

The newly-installed regime at Hulftsdorp will soon be presented with an opportunity to declare null and void two judgments by the highest courts of the land, that declared the process to remove her unlawful and unconstitutional. The Attorney General has appealed for a divisional bench of the Supreme Court to rule on two Fundamental Rights petitions against the Parliamentary Standing Order that sets the procedure for the impeachment of Supreme Court Judges.

The legality of Standing Order 78A has already been ruled on by a three-judge bench of the apex court, when several writ applications filed in the Court of Appeal were referred to the Supreme Court for constitutional interpretation. Under the circumstances, that ruling would have been a frame of reference for any bench of the same court hearing the two FR petitions against the Standing Order. But the AG’s application for a divisional bench – or a bench comprising five or more Supreme Court judges, means that the new Chief Justice, Mohan Pieris will now be able to appoint a fuller bench that could potentially review and even overturn the Supreme Court’s 1 January ruling.

That landmark determination, which found the Standing Order had no basis in law, set the stage for the Court of Appeal to issue a Writ Certiorari quashing the findings a legislative committee that probed the charges of impeachment against Bandaranayake and found her guilty on three counts, allowing the President to sack her from office.

Post-facto, the Rajapaksa administration is determined to change that.

Earlier this week, a petition was filed in the Supreme Court praying the Court to overturn the Writ Certiorari issued by the Court of Appeal that de-legitimised the probing committee report that found Bandaranayake guilty of ‘proven misbehaviour’ warranting her removal from office. It is safe to say that it is no accident that a citizen from Gampaha decided the time was apt to find a way to quash the Writ issued by the Court of Appeal.

Quiet crisis

While Parliament and President Mahinda Rajapaksa may have proceeded with the impeachment in disregard of these court rulings and even appointed Bandaranayake’s successor to head the Judiciary, in the eyes of the law at least, the country’s first female Chief Justice is also still its only Chief Justice. A constitutional crisis is quietly prevailing in judicial quarters, unfelt by the masses that are in no way affected by it at present.

A petition filed against the appointment of Bandaranayake’s successor by the Centre for Policy Alternatives brought the crisis briefly to the fore especially after the petitioner subsequently appealed for the entire Supreme Court – all 11 Judges – to hear the petition. The premise of CPA’s petition is that the Government could not appoint Bandaranayake’s successor because no constitutional vacancy existed in law for the position.

Under the circumstances, the CPA petition for the full bench to hear its petition also argues that Chief Justice Pieris, having been appointed and accepted the position despite the legal conundrums, cannot nominate a bench to hear the petition firstly because he is himself, a respondent in the case and secondly because the country’s lawful holder of the office of Chief Justice cannot exercise her constitutional duty to nominate benches of the Supreme Court to hear cases.

Therefore, on the one hand, the CPA petition highlights the fact that a flawed impeachment process led to a flawed appointment to the office of Chief Justice against which legal challenges are bound to keep mounting, creating constant conflicts of interest that seriously erode public faith in the institution of the Judiciary and its capacity for independence from the political system. On the other, the petition brings to light a dangerous deadlock that arises from the existence, in effect of two Chief Justices – one whose removal was declared unlawful and is therefore invalid and the other whose appointment is thrown into doubt by the unlawful sacking of his predecessor.

Post-facto legitimacy

A reversal of the court rulings therefore, would legitimise the new regime at Hulftsdorp and the Government believes it could put an end to the legal challenges arising from the constitutional deadlock post-impeachment. But this erasure of history by the ruling administration will only ever make a difference domestically, where it is becoming almost impossible to stall the regime’s constant and concerted consolidation of power at the virtual exclusion of all other national concerns. An effective Opposition and suppressed media and civil society have allowed the regime to have its way thus far. A Judiciary effectively cowed by the Government’s unforgiving brand of justice against a sitting Chief Justice will no longer stand in the way of that march.

Yet even as it basks in the glory of this victory and mulls a further clipping of the Judiciary’s wings through a 19th Amendment to deny an incumbent Chief Justice the security of tenure, and a 20th to repeal or dilute the 13th Amendment to the Constitution that devolves power to the provinces and was to be the basis of a power sharing agreement with the Tamil minority community of the north and east, sections of the Government are also beginning to realise that the free pass it is granted at home is not always replicated in its offshore dealings.

More importantly perhaps it is also dawning on the administration that some international repercussions may prove more difficult to bear than others. The Government is now certain a resolution will come in Geneva next month, along with some serious indictments at the UNHRC about Sri Lanka’s lack of progress on reconciliation and accountability following the adoption of the US backed resolution in Geneva last year. It is also certain that a toothless resolution in Geneva, while being damaging to the country’s image overseas, will have little bearing on the regime’s own unique set of priorities back home.

Geneva 2013: A different play

In fact, it is becoming clearer now that the Government has decided to play Geneva 2013 very differently, with as little jingoistic rhetoric and political drama as possible, as advised by its foreign affairs specialists. It is likely that there will be no ministerial delegation to Geneva for the 22nd UNHRC sessions, and Sri Lanka’s case will be handled entirely by the country’s Permanent Representative to the UN in Geneva, Ravinatha Ariyasinha.

The career diplomat who was in Colombo in January was upfront about the challenges Sri Lanka was going to face during the February-March sessions. It is learnt that in backroom discussions, even New Delhi has advised Sri Lanka against contesting the US-backed second resolution this year, urging Colombo to put its diplomatic machinery in gear instead to attempt to dilute the language of the resolution. Under the circumstances, Government insiders claim that Sri Lanka may not even ask for a vote once the resolution is debated, and is hoping that any adverse impacts from UN High Commissioner for Human Rights Navi Pillay’s report to the Council and Sri Lanka’s UPR report, on the language of the resolution can be negotiated with quiet diplomacy.

The Government appears to be pursuing this path, despite some confusion even in Government circles about who will lead Sri Lanka’s delegation to the UN, based on sound advice that to overreact and protest and essentially launch an offensive against the US move, would only result in it looking like a defeat for the Sri Lankan Government when the resolution is inevitably adopted.

In fact, Pillay’s report made public yesterday will go a great distance in convincing hitherto non-committal UNHRC member states that a second resolution against Sri Lanka in March this year is critically necessary. The High Commissioner’s report is a blazing indictment of Government inaction on both the reconciliation and post-war recovery fronts and the virtually untouched issue of accountability for alleged war time excesses.

Focus on C’wealth

Geneva being virtually a foregone conclusion now, the Government has chosen to focus instead on the Commonwealth and Sri Lanka’s standing in the bloc of nations. The focus is not based on the fact that the Government is more concerned about how the 54 member grouping views its conduct as opposed to the wider international community, but instead on the regime’s desperate bid to ensure that a major Commonwealth Summit is held in Sri Lanka as scheduled in November this year.

Plans are underway for the summit, with the Government planning major infrastructure developments to facilitate the hosting of 54 Heads of Government in the country in nine months’ time. Task forces have been set up for the purpose and most importantly, as far as the ruling administration is concerned, big business interests have significant stakes in the summit that promises to be a golden opportunity for certain service providers.

Yet, following the impeachment of the Chief Justice and increasingly louder international calls for Sri Lanka to address its human rights issues, the venue of the summit is no longer a foregone conclusion, despite the fact that there is no official reason so far to believe Sri Lanka will not be the 2013 hosts of the Commonwealth Heads of Government Meeting. In fact, the Commonwealth Secretariat reacted swiftly on Monday (11) to certain media reports implying that visiting Commonwealth Secretary General Kamalesh Sharma had reconfirmed Colombo as November’s CHOGM venue, even though the Secretariat has repeatedly and consistently maintained that there is no official change in venue on the cards so far.

Secretary General Sharma arrived for a three-day visit to Colombo on Sunday (10) to review preparation for the summit in November. The visit has been in the pipeline since December last year. It will be recalled that several Commonwealth Associations and indeed, the Secretary General himself, called on the Sri Lankan Government repeatedly in the run-up to the impeachment of Chief Justice Bandaranayake, to desist from any action that could erode the independence of the Judiciary.

It has been repeatedly affirmed that Sri Lanka’s impeachment process violated the Commonwealth’s Latimer House principles on the Independence of the Judiciary that sets forth the principles that should govern a process to remove judges in a Commonwealth member state. Furthermore, the Government’s decision to override the Supreme Court’s constitutional authority at whim and pursue its own path in violation of the Constitution, casts dangerous shadows over Sri Lanka’s claim to being a constitutional democracy, another area of serious concern as far as Commonwealth core values are concerned.

The Commonwealth of Nations is founded on the premise that its member states adhere to certain core values, including democracy, human rights, separation of powers and the rule of law. Violation of these core values by a member state effectively puts the country at risk of suspension and even expulsion from the grouping, as in the case of Fiji, which was expelled from the Commonwealth in 2009 because its military leadership refused to hold democratic elections at the appointed time.

Suitability concerns

Since Sri Lanka was declared the next host of the CHOGM in Perth in 2011, the country’s suitability has been called into question due to the Government’s adamant refusal to address human rights violations and accountability issues lingering from the final phase of the war with the LTTE. The impeachment of the Chief Justice last month and the international outcry it created, especially after the Government exposed its hand badly by appointing a former member of the executive branch of the Government as a successor to the sacked Chief Justice, has exacerbated matters to the extent that it is now beginning to seriously concern the upper echelons of power in Colombo.

Canada, which is leading the call for a boycott of CHOGM if the summit is held in Colombo, recently upped the ante, by demanding that Sri Lanka be included as an agenda item in the Commonwealth Ministerial Action Group (CMAG) meeting to be held in April. CMAG is a core grouping of nine Commonwealth Member states, mandated to assess “serious or persistent violations of the Harare Declaration, which contains Commonwealth’s fundamental political values.” Uniquely, it is the CMAG that has the power to suspend or expel member states from the grouping, if it persistently violates the core values of the grouping. If Sri Lanka is included in CMAG’s April agenda, it would possibly be the first time a CHOGM host’s commitment to the Commonwealth’s core values of democracy and constitutional rule will be under scrutiny by the small yet powerful body.

It is the realisation of this that has led Sri Lankan Government officials to engage in diplomatic mission after mission to London since mid January in attempts to convince the Commonwealth Secretariat that CHOGM 2013 should take place in Colombo as scheduled. The first to travel to the UK for meetings with the Secretariat was Ministry of External Affairs Monitoring MP and presidential confidant, Sajin Vaas Gunewardane.

Sharma’s ‘list’

It is learned that during the meetings, Secretary General Sharma outlined several key areas the Sri Lankan Government had to demonstrate it was willing to address immediately in order to avoid being included in the CMAG agenda. Since a Commonwealth report was published on the 2010 presidential election in Sri Lanka, the grouping has been concerned about the lack of an independent elections commission in the country and its impact on democratic, free and fair elections being held in the island.

Following the 2010 election, the Commonwealth report called for the implementation of the 17th Amendment that would have provided the necessary oversight mechanism for free and fair polls among several other recommendations. Sharma underscored the importance of an independent Elections Commission during discussions with Gunewardane. The Commonwealth is also concerned with media freedom constraints and other threats to democracy, including the recent move to oust the Chief Justice in violation of a Supreme Court order, Sri Lankan officials were told. Sharma made it clear that unless these concerns were addressed, he would find it difficult to keep Sri Lanka off the CMAG agenda in April.

It remains unclear whether the Government can effectively address these concerns of the Secretary General ahead of the April meeting. In fact, the international community is beginning to understand that the Rajapaksa Government remains unwilling to move on certain critical issues, such as dealing with possible war-time excesses and human rights violations and any move that dilutes the power of the ruling regime, including the setting up of a truly independent mechanism for national elections. As far as the Rajapaksa administration is concerned, the impeachment is done and dusted and retraction or post-facto misgivings and changes of heart are simply out of the question.



Just days after Gunewardane’s return to Colombo therefore, Minister Peiris took wing to London to lobby the Secretariat using a completely different strategy. According to a media release by the External Affairs Ministry, during a meeting with Sharma, Minister Peiris explained why Sri Lanka should not be included in the CMAG agenda.

“The Minister pointed out that such a course of action is contrary to the decisions taken by the Commonwealth Heads of Government at their meeting in Perth, Western Australia in October 2011 regarding the mandate of CMAG and the scope of its functions,” the External Affairs Ministry statement said.

Peiris also reportedly also emphasised to the Secretary General that any attempt to politicise the organisation or to permit its structures and mechanisms to be used as instruments by some countries to interfere in the domestic issues of other countries, would inevitably distort the cultural ethos of the Commonwealth and pose significant challenges with regard to its future.

CMAG’s fresh mandate

It is unclear what Sharma’s response to the Minister’s submissions were but as far as the CMAG mandate is concerned, a decision was made at the same meeting in Perth Minister Peiris refers to, that the scope of CMAG’s mandate would be expanded to make the body more ‘proactive’ rather than ‘reactive’ to evolving situations in Commonwealth member states.



According to the Secretariat the core changes to CMAG’s mandate decided in Perth included using the following situations as constituting “persistent violation of Commonwealth values,” including the unilateral abrogation of a democratic constitution or serious threats to constitutional rule and the systematic denial of political space, such as through detention of political leaders or restriction of freedom of association, assembly or expression. The new mandate allowed CMAG to also take the following developments into account among other things, a national electoral process that is seriously flawed and the abrogation of the rule of law or undermining of the independence of the Judiciary.

Undoubtedly, the CMAG’s new mandate and especially how “serious threats to constitutional rule” and “undermining the independence of the Judiciary” could especially be troublesome for Sri Lanka post-impeachment is not lost on the Minister of External Affairs.

Appealing to Dhaka

And so it was that after lobbying the Secretariat as hard as possible, Minister Peiris then headed for Dhaka last week for meetings with Bangladeshi Government officials, in order to make his case against an inclusion in the CMAG agenda. Bangladesh is currently a member state in the CMAG and by far Sri Lanka’s strongest ally in the current grouping that could prove decisive for Sri Lanka in terms of hosting CHOGM 2013. It is learnt that officials in Dhaka assured Peiris of their support at the April meeting, but also underscored the need for Colombo to showcase something in terms of progress and commitment to upholding the values of the Commonwealth, especially in the democracy and human rights spheres.

Colombo is also fairly secure in the knowledge that Australia, which is the current chair of CMAG, will be supportive of its cause. Canberra has repeatedly affirmed its support to Colombo as hosts of the CHOGM and even encouraged other member states to attend the summit as scheduled. Australia deviates somewhat from the agendas of concern for other powerful liberal nations in the international community as relates to Sri Lanka, largely because Colombo’s engagement with Canberra has been professional and multi-pronged.

Interestingly, the CMAG meeting takes place almost immediately after the UNHRC’s 22nd Sessions end in late March, and analysts claim it is not yet certain that the submissions made and resolution adopted in Geneva will not have some impact on the decisions arrived at with regard to the agenda in April.  

As Sri Lanka’s international challenges mount, the Government remains supremely confident that even if Sri Lanka loses CHOGM, it can play it effectively to the local electorate as being irrefutable proof of an international conspiracy against the island. The regime’s primary concern with regard to the movement of the summit is firstly, that it wants to be able to showcase its hyper-development drive to the always-doubting ‘West’ and secondly, that it has considerable business interests riding on Colombo being retained as the summit venue. President Mahinda Rajapaksa knows well that the loss of CHOGM will, if anything, increase his political capital by giving him the opportunity to project himself as the political leader standing between Sri Lanka and an increasingly hostile world.

Undoubtedly, this is the calculation Opposition Leader Ranil Wickremesinghe was making when he reportedly extended his support to the summit being held in Colombo during his meeting with Secretary General Sharma on Tuesday (12). The report of his support came despite the Opposition Leader’s repeated affirmations that the Government had violated Commonwealth principles by its impeachment process and even warned that the country could face expulsion from the grouping if it did not desist.

The UNP Leader’s reticence on the issue is rooted simply in the fact that he does not want to become the face of the CHOGM defeat in the eventuality that the venue is shifted. Accustomed to the highly-effective Government propaganda machinery that constantly plants traitor labels on the UNP, Wickremesinghe does not want the Rajapaksa regime to possess ammunition that will help the Government to convince the people that the UNP was engaged in a conspiracy with the West to discredit Sri Lanka by robbing the country of CHOGM.

Refusing to change the narrative

While the calculation may not necessarily be incorrect, it also speaks to how unwilling the main Opposition party is to change the narrative set by the Government, for fear it would further erode its nationalist support base. The UNP constantly finds itself defending against a storyline deliberately set by the Rajapaksa regime, to portray all those opposing the Government as responsible for the nation’s ills.

An effective Opposition would instead seek to tell a different story, to the country and the world, about how the incumbent regime’s supreme indifference to democratic norms, human rights and the rule of law was eroding the country’s international standing and dealing a death blow to the citizens’ freedom in one fell swoop.

To become the champion of human rights, to actively oppose the regime’s Sinhala chauvinistic face, or become the country’s truly liberal democratic alternative is too high a political price for Wickremesinghe to pay. Therefore the party confines itself to being on the defensive, playing to the gallery – as was obvious by Wickremesinghe’s recent remarks on the Halal controversy in Parliament – and hoping against hope to win back some Sinhala Buddhist support.

As for opposing the regime, the UNP is content to sit back while the international community does the work for them, engaged as it were in an eternal waiting game until the regime falters in a way that it can no longer recover.

All this notwithstanding, the regime’s expedient and often blatantly autocratic political conduct, if unnoticed and ignored at home, is constantly under scrutiny internationally, as High Commissioner Pillay’s evidently current report indicates. The scrutiny will continue for years, resulting at some point in sterner action that the Government is confident will not affect the regime’s inner circle even long after it debilitates the country’s economy and disempowers the citizenry. But like Longfellow’s ‘mills of God’ the hand of international justice too, works in slow but exacting ways. The hubris of power will bring about an eventual collapse. The only question is whether there will be a country worth recovering in the rubble.