Impeachment of the Sri Lankan Chief Justice

Sri Lankan Chief Justice, Shirani Bandaranayake. PHOTO: Centre for Policy Alternatives

The impeachment of the Sri Lankan Chief Justice, Shirani Bandaranayake is possibly a watershed moment in Sri Lankan law and politics. President Rajapaksa’s 13 January decision to ratify the impeachment decided two days earlier by a parliament controlled by his ruling United People’s Freedom Alliance is the latest step in the gradual but systematic dismantling of the rule of law. The move, in violation of the Sri Lankan constitution and basic principles of due process and in disregard of rulings by the Supreme Court and Court of Appeal, leaves Sri Lanka’s already battered democracy on life-support.

The decision to impeach the Chief Justice is a direct message that the Rajapaksas will continue to consolidate their power without regard to democracy, the rule of law or human rights.  In that sense, it complements the administration’s disregard of international law in the military actions that resulted in the deaths of some 40,000 or more civilians in 2009 and its refusal to investigate credible allegations of war crimes.

Indeed, the two issues – this assault on the independence of the judiciary and the accusations of war crimes – are interlinked and must be seen as such.  The Sri Lankan government’s insistence that Sri Lanka should be left to investigate and remedy its own shortcomings with regard to the latter looks increasingly (if more evidence were required) implausible as one of the last remaining independent institutions – the court – is so openly dismantled.  Further, without addressing, fully and transparently, the facts of the war’s denouement the seeds of future conflict remain embedded in Sri Lankan society.  Ongoing persecution of Tamils; the shrinking of political space for Sinhalese civil society; and the neutering of the courts creates an alarming trifecta which, if left unaddressed, does not augur well for the country’s future.

Sri Lanka’s international partners need to take note and frame their policies in light of the Sri Lankan government’s persistent rejection of domestic and international law.

The initiation of impeachment proceedings against the Chief Justice, in November 2012, was seen in large part as a politically-motivated response to the Supreme Court’s decision in the Divineguma case. In a judgment signed by the Chief Justice, the court temporarily blocked legislation to establish a new government department that would usurp many provincial powers over welfare and development policy and bring hundreds of millions of dollars worth of government programs under the control of the economic development ministry, headed by the president’s brother, Basil Rajapaksa.

The impeachment proceeded in disregard of basic principles of due process:

• the eleven-member parliamentary select committee considering the case was composed of a clear majority of government members who had already expressed their belief in the Chief Justice’s guilt;
• the committee denied the Chief Justice sufficient time and information to prepare her defence, even refusing her access to documents and evidence used by the panel members;
• the Chief Justice was verbally abused by government members of the committee;
• after informing the Chief Justice that the panel had no plans to call witnesses to give oral evidence, the committee did just that, summoning witnesses to testify immediately after the chief justice and her lawyers quit the hearings in protest at the lack of due process;
• the committee’s report, which found the Chief Justice guilty on three charges, was completed within twenty-four hours of concluding its hearings.

Despite rulings earlier this month by the Supreme Court and Court of Appeal that the parliamentary process was not constitutional and nullifying the conviction of the Chief Justice by the parliamentary select committee, the parliament nonetheless voted overwhelmingly on 11 January 2013 to endorse the committee’s finding and impeach the Chief Justice. On 13 January, President Rajapaksa ratified the parliament’s decision.

On 15 January, former Attorney General Mohan Pieris, one of the regime’s most loyal apologists, was sworn in to replace Bandaranayake, who was prevented by the police from going to court and forced to vacate her official residence. Nonetheless, Bandaranayake has defiantly asserted that she remains Chief Justice and retains strong support from lawyers and senior judges.

In addition to the immediate danger of violence against dissenting lawyers and activists and/or illegal detentions and other forms of repression, there is the longer-term damage the impeachment will do to democratic institutions; this in turn will threaten the prospects of sustainable peace in a country that should be seeking to emerge from the ravages of a particularly nasty civil war.

In the coming days and weeks, the international community should speak out against the government’s denial of due process in the case of Ms. Bandaranayake and warn clearly and publicly of international sanctions in the event of the violent repression of dissenting judges, lawyers and civil society activists.

The Commonwealth

The Commonwealth has an important role to play. In light of Sri Lanka’s clear and repeated violation of Commonwealth principles, and following his recent welcome expressions of concern about the impeachment, the Commonwealth Secretary-General should refer Sri Lanka to the Commonwealth Ministerial Action Group (CMAG). Already the Canadian government has called on CMAG to put Sri Lanka on its agenda – other Commonwealth governments should endorse this position and insist that CMAG acts. Unless the impeachment is reversed, the Commonwealth should shift the location of its next heads of government meeting, currently scheduled to take place in Colombo in November 2013.

The UN Human Rights Council

Member states of the Human Rights Council (HRC), which begins its next session on 25 February, should work for strong follow-up to their resolution of March 2012. The impeachment of the Chief Justice is only the most obvious and important example of the Sri Lankan government’s refusal to respond positively to the HRC’s many useful recommendations. Despite government claims to have implemented significant portions of the recommendations of its own Lessons Learnt and Reconciliation Commission (LLRC) reporting on the civil war’s final months, in fact there has been next to no progress, and none with respect to accountability. On every major category listed in the HRC resolution, the Sri Lankan government has failed to take effective action:

• there have been no credible investigations into war crimes, disappearances or other serious human rights violations;
• no independent institutions for investigation or accountability have been established; instead the regime has dismantled the last traces of judicial independence through its assault on the chief justice;
• rather than moving towards a lasting and fair constitutional settlement of the ethnic conflict through meaningful power-sharing, the President and his brothers have expressed their intention to repeal or weaken the already limited provincial powers granted under the 13th Amendment. (For details see Crisis Group’s November 2012 report, Sri Lanka: Tamil Politics and the Quest for a Political Solution);
• despite the council and many others calling for the demilitarisation of the Tamil-majority northern province, the Sri Lankan military continues to control virtually all aspects of life in the north, with the civil administration intimidated and sidelined;
• the government has cracked down hard on Tamil protest in the north, with peaceful demonstrations disrupted by the military, students arrested on groundless charges of working with the LTTE and other forms of dissent denied;
• dissent among Sinhalese in the south is also under attack, with recent anti-impeachment protests attacked by government thugs while the police looked on and did nothing.

The HRC should note the failure by the government to implement last year’s recommendations and call for an independent investigation into all credible allegations of war crimes and crimes against humanity, whose broad outlines were laid out in the April 2011 report of the UN Secretary-General’s panel of experts looking at the civil conflict’s conclusion.

Other responses

All of Sri Lanka’s international partners – both bilateral and multilateral – need to determine measures to be taken in response to the Rajapaksa government’s clear contempt for constitutional values and the rule of law.

All those providing bi-lateral and multilateral development assistance – especially the World Bank, Asian Development Bank and International Monetary Fund – should review their programs in light of the political attacks by the Rajapaksa government on the rule of law and its continued failure to address accountability issues stemming from the killing of thousands of non-combatants in 2009.