Justice Under Siege in Sri Lanka

The Rajapaksas decided to impeach the Chief Justice of Sri Lanka, Dr. Shirani Bandaranayake, after the Supreme Court, headed by her, declared against the Divi Neguma Bill, and they did not like it one bit. It would have made the President’s brother, Basil Rajapaksa, the Minister of Economic Development, additionally the overlord of economic development of the provinces, completely undercutting local responsibility, and depriving their elected representatives of a huge source of political power in their own provinces. It also could also have resulted in taking back a good chunk of the powers granted to provincial councils. But the Rajapaksas clan did not like the decision one bit.

The government magically produced an avalanche of wrongdoings by the Chief Justice, and appointed a Parliamentary Select Committee (PSC), made up of seven government members and four from the opposition ranks, to prosecute the charges against her. Fourteen charges were brought against her. There is no sense it recounting all the charges here as will be clear later.

To observers, at home and abroad, it was a shocking development. Many saw it as nothing but a public lynching of the Chief Justice, calculated to serve as an example to the judiciary who dared to stand in the way of the executive and their onward march to supreme power in the land.

But for the first time, in recent years, it stirred public concern especially that of the intelligentsia, led by the powerful Law Association of Sri Lanka and its 3,000 members. They probably saw it as an attack on the last bastion of democracy in the country, and even resolved that if the Chief Justice were removed without due process, the Bar will not welcome her successor. But there was an attempt to stop the protest, by harming, even assassinating, the President of the Colombo Magistrate’s Court Lawyers Association¹, and the President of the Bar Association of Sri Lanka. Not surprisingly a white van was involved in the attempts¹.

The United States, the United Nations and the Commonwealth Secretariat have raised concerns about the process and called on President Rajapaksa to ensure the independence of the judiciary. The International Commission of Jurists said about the same thing. The Asian Human Rights Commission, while asking the bar associations to protect its colleagues, called on Law Asia, the International Bar Associations, and the International Commission of Jurists, and others to request Sri Lanka to stand up for the rule of law.

The Chief Justice fired the first salvo, rebutting all the 14 charges leveled against her, in a written public release, before the PSC proceedings could begin its sessions. The hearings began on December 6, and the Chief Justice maintained that all the charges against her were false. Later she held that the proceedings were unconstitutional, and had no legal basis. But after the PSC Chairman refused to provide the procedures for the inquiry, a list of the witnesses, documents related to the charges, and the proceedings descended to an obnoxious level she and her lawyers walked out of the proceedings.

Later the opposition members of the PSC declared they’ll boycott the meetings, after the PSC Chairman did not accede to the four requests for changes they had put forward to him.

The PSC met on December 7 to continue the impeachment proceedings, but without the Chief Justice, and opposition members of the PSC who had withdrawn, both boycotting the proceedings in protest, the proceedings were robbed of legitimacy. But despite their absence, the government members of the PSC concluded the Chief Justice was unfit to hold office, because of unexplained wealth, financial irregularities, and misuse of power. They only investigated 5 of the 14 charges against the Chief Justice before concluding that she was guilty on 3 counts. She had, of course, previously denied all the charges.

The PSC report on its findings that the Chief Justice was guilty on three counts now goes to parliament, for debate and vote. The impeachment will depend on their decision expected in January 2013.

But in the wake of the PSC verdict, President Rajapaksa, taking account of what had happened at the PSC proceedings, declared that he would act according to his conscience, and appoint an independent committee to further inquire into the PSC findings.

The guilty verdict brought in by the government appointees of the PSC appeared flawed. How it could have brought in this verdict without due process and the defendant not present was baffling. It left people wondering how to reconcile the verdict of the PSC with the decision of the President to further inquire into the PSC findings. To many it appeared as if the President was backing down from the impeachment.

To the public the PSC proceedings appeared to be defective, and unlawful, because the Chief Justice did not enjoy even the rights of a common criminal arraigned before a court of law. There were no laid down procedures. The accused was not provided with documents related to the charges, a list of witnesses, and the right to cross examines them, and so on. There was no decorum observed at meetings, as they were allowed to descend to loathsome and unbearable levels. It looked as if the government members of the PSC did not care at all, because they were certain that with their huge majority in parliament anything and everything would be passed without any difficulty.

There are other ramifications flowing from the Chief Justice’s declaration against the Divi Neguma Bill. The government fears the north-east becoming more autonomous in its wake, if the provinces work under the 13^th Amendment. There is a view that 13^th Amendment would not work because it is a foreign solution, and an affront to the country’s sovereignty. But the Chief Justice had also indicated that the government should not take back the powers of the provinces without Supreme Court approval, and that any new bill proposed by the government for this purpose should be cleared first by the provincial councils.

But to the powerful Rajapaksas clan this was an unexpected hurdle they could not put up with. To them the solution was simple. Get rid of the Chief Justice and put a more pliant one in her place. With a brutal majority in the parliament, they reckoned it would then be a cinch to do laws any way they wanted.

It was nothing but raw political power that steered the Rajapaksas to the impeachment route. With provincial economic development under the centre, they deemed they would become king maker in the provinces. The Divi Neguma Bill was nothing but a ploy to achieve this transformation, concentrate political power at the center, and ensure the Rajapaksa clan exercised supreme power over the entire country.

The Tamils have to fight the Divi Neguma Bill all the way to keep it out of the statute books if they are to exercise power in their own provinces, develop and manage it their way, instead of becoming mere vassals of the center, and be dependant on them for every bit of progress of their provinces and people.

Equally important to the Tamils is not to loose their identity in a Sinhala dominated world, but develop and nurture their own culture in parallel with it. They need strong allies to do this. The UN in March, 2012 censured Sri Lanka on alleged war crimes, in a US sponsored resolution, during the conflict with the Tamils. It should reassure the Tamils that the war might be over, but the world is closely watching what is happening in Sri Lanka.

India as the regional super power will continue to exert enormous influence in the territory, and with the vastly improved and close relations they have with US, there can be nothing superior and stronger in this world than the India-US unity watching over developments in Sri Lanka and the Tamils.

At the next meeting of the UN in Geneva, to review Sri Lanka’s position vis-a-vis the Tamils, their rehabilitation and issues relating to human rights and war crimes will figure prominently in the discussions. It is going to be a critical time for the Tamils.

At the same time, the impeachment of the Chief Justice of Sri Lanka, its relation to the rule of law as it relates to the Tamils could also figure prominently in the UN discussions. It would be unthinkable for Tamil homelands to be equated to Sinhala provinces, should the Divi Neguma Bill become law. How the Tamils representatives will get this across at the meeting is something for them to work out.

Note: 1. Please see Lanka e News at lankanews.com, of December 22, 2012 and later, for shocking accounts of the shooting and related news.