Battle-lines drawn

Battle lines have been drawn between the Government and Judiciary and there is no going back, making 6 November a red letter day in Sri Lanka’s history.

As the Government pushed ahead with its impeachment, the Supreme Court retaliated by insisting that the Divi Neguma Bill is unconstitutional and therefore would need both a two-thirds majority in Parliament as well as a referendum to be passed in its present form.

Unperturbed, the Government is taking the low road by undermining the power of the Chief Justice post rather than redrafting the controversial Bill. The message is getting louder and more menacing.

Fourteen charges of misconduct against Chief Justice Shirani Bandaranayake, as cited in the motion of impeachment filed against her by the ruling coalition, were included in the Parliament’s Order Papers.

The 14 charges range from alleged conflicts of interests pertaining to cases heard before Chief Justice Bandaranayake and certain financial transactions, to non-declaration of assets, abuse of her position as Chairperson of the Judicial Services Commission (JSC) to harass magistrates, unconstitutional appointments to the JSC, and constitutional violation with regard to the delivery of determinations to the Speaker.

With reference to the corruption case against her husband Pradeep Kariyawasam, the impeachment motion says that in her capacity as JSC Chairperson, the Chief Justice was vested with powers to transfer and remove magistrates and peruse judicial records and could hinder the administration of justice.

Charge #9 even refers to a Fundamental Rights petition filed against her appointment to the Supreme Court and argues that she has acted in contravention of the ruling given in that case during her time on the Bench. Charge #10 makes reference to an article written by Bandaranayake during her tenure as a lecturer at the University of Colombo’s Faculty of Law.

The merit of these charges will be decided by a Parliament Select Committee (PSC) but there are many questions over its composition. For a fair hearing it is essential that there is a strong Opposition presence, but it is unclear what guidelines will be set by the President.

It would not be an exaggeration to say that this is the greatest challenge for the Opposition since President Mahinda Rajapaksa came into power because this goes beyond mere elections into the true heart of a democracy – adherence to law and order.

Many among the moderate public fear that the impeachment, so swiftly imposed, will undermine the power of the Chief Justice office, which acts as the last bulwark of resistance against a heavily-biased Parliament and all-powerful Executive. They fear that disempowered people, particularly minorities, will not have a voice left.

The impeachment will also show Sri Lanka in dimmer light, overshadowing the impressive progress made since the end of the war. It also sets a sombre tone for the country’s progress and does not bode well public or private officials in general.

The Government has attempted to explain away the impeachment by insisting that it is in line with the checks and balances integrated into a democratic system by the Constitution. However, experts have pointed out that this system was hastily concocted by former President J.R. Jayewardene to impeach a former Chief Justice and does not follow best practices adopted elsewhere in the world.

Moreover, the string of incidents that form the background to the impeachment does not prove the impartiality of the Government. The only hope now is that public dissent and Opposition support will provide some semblance of justice.