Sri Lanka: Ruling combine seeks to impeach Chief Justice

by

N Sathiya Moorthy

With the ruling UPFA coalition submitting a memorandum signed by 117 members in the 225-seat Parliament to Speaker Chamal Rajakasa, the stage may now have neen set for impeaching Sri Lanka’s first woman Chief Justice Sirani Bandaranaike. The constitution provides for a third of the membership seeking impeachment of any member of the nation’s higher judiciary, which, however, has to be passed by a simple majority in Parliament.


Details of the charges against Justice Bandaranaike will be known when the Speaker, a brother of President Mahinda Rajapaksa, announces it to the House when Parliament reconvenes on Tuesday, November 6. According to Sri Lankan media reports, the Speaker will then (have to) nominate a Parliament Select Committee (PSC) to process the motion, before being brought back to the full House for vote. Considering that the Government side has two-thirds majority in the House, obtaining a single majority (comprising for instance the very signatories to the impeachment motion) would be adequate to get it through.

Indications, going by media reports and political commentaries by the Opposition parties in particular, relate the government’s stand-off with the judiciary on a series of unfavourable pronouncements, which otherwise were supposed to be in line with the constitutional scheme. Particular reference is being made to the Supreme Court’s decision that a majority of the nine ’toothless’ Provincial Councils had to clear the controversial Diveneguma Bill before the pro-Government Parliament could take it up for safe passage. Last year, the court had similarly held clearance by the Provincial Councils was required before Parliament could amend the existing law on local government elections.

In a way, the Divineguma Bill in particular is aimed at further consolidating the powers now conferred on the Provincial Council in the Centre. This time the powers relate to those that are supposed to have devolved on the Provincial Councils under the Thirteenth Amendment to the Constitution, and decentralised there too, among various ministries and departments. An added issue on the judicial front flowed from a petition filed by the Tamil National Alliance (TNA), challenging the authority of the nominated Governor of the Tamil-exclusive Northern Province to represent the Provincial Council, for which elections have continued to remain promised but pending, all the same.

First signs of an imminent tiff between the legislature and the judiciary in what essentially had involved only the executive and the Supreme Court emerged when Speaker Rajapaksa informed the House about a communication from the Chief Justice being addressed not to his office, but to the Secretary-General of Parliament. He observed that it should have been the other way round. Media reports have since indicated that the Supreme Court’s decision on the TNA’s petition and allied submisisons, have been sent to President Rajapaksa and Speaker Rajapaksa, and that the latter would unveil it to the House.

What however caused eyebrows to raise was a recent attack on a senior serving judge, who was Secretary to the Judicial Services Commission (JSC), an ’Independent Institution’ under the Constitution. The police is yet to crack the case, but in between the political motives came to be seen behind the attack. Judges across the country protested. Reports had it that they had stayed away from courts for a day. The Bar too joined in, with the Opposition, for its part, calling for protecting the freedom of independence of the judiciary. These calls are being heard even more continually and vociferously after the impeachment move gathered momentum.

According to news reports, a team met President Rajapaksa recently and sought his intervention to stop the impeachment move. The Press quoted team members to say that President Rajapaksa had cited the pending impeachment papers that were already before the Parliament Speaker. The team is also said to plan a meeting with the Speaker, possibly before the impeachment move comes up before Parliament. The prestigious Bar Association of Sri Lanka (BASL) is likely to consider its position on the impeachment motion soon after meeting the Speaker, it is said. Earlier, the BASL had taken exception to the attack on the JSC official and demanding immediate police action to identify the culprit in the case.

A ’deflecting game’ at UPR?

That the ruling MPs chose November 1, the day the UNHRC was to consider the four-yearly Universal Periodic Review (UPR) for Sri Lanka at distant Geneva, has, however, not gone unnoticed nearer home. Critics of the Government in Colombo would claim that it was aimed at ’deflecting’ the attention of the vociferous West at the UPR, to move away from the ’ethnic issue’, which otherwise has been at the centre of the continuing global discourse on Sri Lanka, both during the three-decade long ’ethnic war’ and now for three years after the war ended.

Cabinet Spokesperson and Media Minister Keheliya Rambukwella has chosen to respond only thus far to the US criticism on the impeachment initiative at the UPR. Referring to American criticism back home in Colombo, Rambukwella said that the impeachment motion had been initiated under the Constitution. This, according to him, clearly showed that Sri Lanka was not ruled under any ’jungle law’. Over the weekend, the Government has otherwise been silent on the issues flagged by other member-nations at the UPR, which kept the focus almost entirely on the ’ethnic issue’ and the ’accountability’ concerns flowing from ’Eelam War-IV’.

Before Justice Bandaranaike, the UNP Government of then President J R Jayawardene had sought to impeach Chief Justice Neville Samarakone. Just before his retirement, the Rajapaksa leadership, media reports speculated, was considering the impeachment of Chief Justice Sarath N Silva, immediate predecessor to Justice Sirani, who has more than a decade to go for superannuation. Justice Sarath Silva was among the first to criticise the Government on the current impeachment move, as he has been on a host of other issues since retirement. News reports have spoken about his speaking to President Rajapaksa on the issue at a funeral in Colombo, recently.

The divided political Opposition, which had hoped that the impeachment motion could give them a common cause for coming together one more time after a succession of failures, remains hopelessly divided. Independent of the numbers, where they are just not equipped to shake or shock the Government, the Opposition parties are back to their blame-game sideshow. The Left-nationalist JVP, a shadow of its old self in terms of parliamentary representation, has charged the Opposition UNP with colluding with the Government on this issue, as others. UNP Opposition Leader Ranil Wickremesinghe, news reports said, had spoken to a senior JVP counterpart, denying the charge.

Independent of the results of the impeachment motion, if taken forward to its current logical conclusion, it remains to be seen how the Opposition fares in terms of raising a common voice against the Government in what is still seen as an ’urban, elitist’ issue. Questions have been flagged about the processes involved, including the constitutional requirement needing only a simple majority for impeachment of the kind, but at a time when the Government of the day has two-thirds majority in Parliament, such arguments have only an academic value, and nothing more!

(The writer is a Senior Fellow at Observer Research Foundation for which this paper was written)