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Impeachment trial imperils democracy

Targeting the chief justice subverts the rule of law

  • Jehan Perera, Colombo
  • Sri Lanka
  • December 20, 2012
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The main political issue in Sri Lanka at the present moment is the government's effort to impeach Chief Justice Shirani Bandaranayake on the grounds of alleged misbehavior.

It is also the latest manifestation of the government’s desire to exercise undisputed power in the country.

President Mahinda Rajapaksa and other top leaders of the government appear to be convinced that centralized decision making is of the greatest importance in implementing their vision for Sri Lanka.

They also publicly state that there is a conspiracy to subvert the government in which the main protagonists are the Tamil separatists and a section of the international community that champions human rights causes.

Now it also seems that they see the chief justice as part of this cabal.

The government’s conflict with the Supreme Court arose after it ruled against the constitutionality of a proposed government law, the Divineguma (Uplifting Lives) Bill, which sought to vest devolved economic and financial power in relation to community-level development with the central government.

But on this occasion, unlike on previous occasions, the Supreme Court stepped in to put on the brakes. A Supreme Court bench headed by the chief justice decided that the Divineguma bill was not in conformity with the constitution. The draft law has therefore to be passed by a two-thirds majority in parliament and also has to obtain the approval of the people at a referendum.

The legal objection to the Divineguma Bill came primarily from its potential to erode the powers given to the provincial councils in terms of the 13th Amendment.

From the time they were established by that amendment in 1987, the provincial councils have been an arena of contested power. The system was set up as an outcome of the Indo-Lanka Peace Accord, which was in the nature of an unequal treaty signed by the governments of India and Sri Lanka.

The Indian promise was to disarm the LTTE and end the ethnic insurgency, while the Sri Lankan promise was to implement the devolution of powers on the Indian model. 

But neither side was able to keep its side of the bargain. Due to the nature of its origins, the provincial council system has never been fully empowered by successive governments. The resource base of the councils has never been strong, and in fact, during the period of the present government, even the limited taxing power they enjoyed has been further reduced.

The proposed Divineguma law intrudes into areas that have been reserved for the provincial councils. On the one hand, many of the powers vested in them by the 13th Amendment have been non-functional due to the lack of economic resources and non-devolution of those powers to the provincial councils. 

Examples of this include the central government taking back powers over local-level business taxation and the continuing non-devolution of even limited police and land powers. 

The concern of the government is that the 13th Amendment potentially vests these powers with the provincial councils, and an effective provincial administration can indeed demand them.

The Supreme Court ruling on the Divineguma bill presents a major obstacle to the realization of the government’s vision of centralized development in which it has the final decision making power.

The character of the government leadership is not to accept a situation in which there is countervailing power that can stand in its path as an equal. Although equality of the executive, legislative and judicial branches of government is a widely accepted principle of constitutional governance in developed democracies, this is not presently the case in Sri Lanka.

The government does not appear to be ready to accept the judiciary as a co-equal branch of government that could negate or block initiatives of the executive and legislature, both of which are under the full control of the ruling party.

By ruling against the constitutionality of the Divineguma Bill, the Supreme Court has denied the government the opportunity to further strengthen itself and weaken the 13th Amendment and Provincial Council system in the indirect manner it has sought.  It has forced the government to deal with these matters in a transparent and direct manner, instead of subtly and indirectly.

The government’s apprehension is that this type of supervision by the Supreme Court will undermine its grand vision for the development of the country as it sees fit. This may explain why the government feels constrained to impeach the chief justice who has been trying to give leadership to principles of governance that is according to the rule of law as laid down in the Constitution.

The impeachment process launched by the government against Bandaranayake has now entered its most contentious and controversial phase.

The parliamentary select committee appointed to look into the charges against her has declared that she has been found guilty on three counts and innocent of two others. There were a total of 14 charges against the chief justice.

The opposition members appointed to the committee had earlier withdrawn from it and the chief justice herself had refused to continue to appear before it, citing bias. The belief that justice is being done in these circumstances would require a leap of faith.

The government is engaging in this act of impeachment in defiance of public opinion voiced by the country’s religious leadership and also the bar associations in the country.

The rapidity with which the parliamentary select committee, or what is left of it, has been proceeding with the impeachment cannot impress any objective outsider as being the actions of a government that respects democratic procedures.

The impeachment will not only serve to polarize Sri Lankan society but will be further evidence to the international community that the ethnic minorities cannot expect justice from the government when its own chief justice is being treated unjustly.

Now President Mahinda Rajapaksa appears to be distancing himself from the impeachment process launched by his government. He has indicated that the impeachment was not his idea and he was responding to the petition from parliament.

The president has also stated his intention to appoint an independent committee to advise him on the findings made so far with respect to the charges leveled against the chief justice.

The president’s acceptance of the need for an independent committee to review the decision of the parliamentary select committee gives substance to the belief that it failed to arrive at a sound and unbiased conclusion.

The government may be able to convince itself and the majority of people that what it is doing is right. But in terms of constitutional government, in which checks and balances take a foremost place and the judiciary’s independence is guaranteed, the country’s democratic system is at risk.

Dr Jehan Perera is a lawyer and executive director of the National Peace Council. He received his law degree from Harvard University

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