by N. Sathiya Moorthy

Protests by the Bar, posturing by political parties, condemnation by the civil society and constitutional possibilities notwithstanding, the judicial transition at the top, following the fast-tracked impeachment of the incumbent, has gone off incident-free thus far, reflecting the inherent resilience of the Sri Lankan nation and its people. Conversely, it could also be a reflection on perceptions of continued indifference by the masses to matters ethical and ethereal, and of the disconnect existing between these classes of people and the middle class urban elite.

The impeachment of Chief Justice Shirani Bandaranayake was followed by the swearing in of former Attorney-General Mohan Peiris in her place, without much break or let-up. In between, both President Mahinda Rajapaksa and the Parliamentary Council, empowered under the Eighteenth Amendment of the Constitution to clear high-level appointments, went through the motions of appointing and passing the nomination without hitch.

It is not as if there was any hitch that way in the impeachment process once the Government had made up its mind. The Government’s decision had included defying the court orders in the matter, citing the existing procedure that had been followed by the political Opposition while in power, and the Judiciary at the time, so to say. That those moves did not lead to the impeachment of the incumbent is beside the point.

Affirmative opinion on 18-A

As coincidence would have it, Shirani Bandaranayake was on the Supreme Court Bench that gave affirmative ‘advisory opinion’, clearing the 18th Amendment to the Constitution, which, among other things, sought to replace the ‘Constitution Council’ under the predecessor 17-A, with a ‘Parliamentary Council’ in appointments to high-level posts, including the Chief Justice and other Justices of superior courts in the country.

In doing so, 18-A restored the traditional authority/responsibility of the Executive (President), which had been passed on to the multi-party ‘Constitution Council’ through 17-A. Instead, 18-A limited the powers of the ‘Parliamentary Council’ to approving – or, rejecting – the nominee of the Executive President. With the Opposition staying away from the Parliamentary Council meet, unlike in the case of the PSC, from where they walked out after the initial days, there was no doubt on the endorsement for the new Chief Justice nominee.

Independent of the issues attending on her impeachment, controversy has surrounded Bandaranayake, from her very appointment to the Supreme Court. The first woman to be elevated to the Supreme Court, that too at the relatively young age of 38 – and the first woman to become Chief Justice, and also the first CJ, male or female, to be thus impeached – Bandaranayake was possibly the only law graduate in the nation’s history to be nominated to the superior court Bench directly without any practice at Bar. She was a member, and later Dean, Faculty of Law at Colombo University, when President Chandrika Kumaratunge named her Justice of the Supreme Court in 1994.

At that time, the purpose purportedly was to ‘clean up’ the Judiciary, which the powers-that-be purportedly viewed as ‘anti-Establishment’. So was it when President Mahinda Rajapaksa named her Chief Justice in 2011. On both occasions, there were protests from the Bar and others over the perceived impropriety of her appointment. The civil society organisations and human rights outfits too had protested her nomination, and later-day elevation, just as they have since criticised her impeachment.

Rescue, not Recuse

In more recent times, there was the alleged impropriety of Chief Justice Bandaranayake presiding over a Supreme Court Bench, before which her husband Pradeep Karyawasam stood accused. In other times and in other countries, any Judge in her place would have recused herself from hearing the case. When Bandaranayake chose to do so, the impeachment move was already on. The Government parties would thus argue that rather than recusing from the case, she had sought to rescue her husband. There was/is however no other evidence to that.

Kariyawasam had been in the centre of controversies even otherwise, first as the Chairman of the Sri Lanka Insurance Corporation (SLIC), and more recently as Chairman of the National Savings Bank (NSB), both state-run institutions, with little or no executive experience or expertise at those levels. Wife Bandaranayake was already a Judge of the Supreme Court, and it is not known if she gave him any sane advice on the morality and legality of his accepting those positions.

From Conscience to Constitution

What should have been a ‘crisis of conscience’ for CJ Bandaranayake ended up becoming a classic case of constitutional crisis after the Government parties initiated the impeachment proceedings against her. So much so, the Opposition UNP, which was in the forefront of demanding action against the Chief Justice for the improprieties involved, would soon take a U-turn, as the Government is not tired of recalling since.

Today, no one relates the exit of CJ Bandaranayake to the UNP. Instead, the Government is being charged with illegality in not following constitutional procedures, as ruled by the Supreme Court. And not so for totally unjustifiable reasons, though. Yet, the UNP may need to explain to the nation, the party’s position on the original charges it had levelled against Bandaranayake.

With the impeachment and change-of-guard in the Supreme Court, half a dozen private petitions against the PSC procedure have been reportedly withdrawn. Others may remain. Colombo-based Centre for Policy Alternatives (CPA) has challenged the appointment of Chief Justice Mohan Peiris, yet the latter’s predecessor, Shirani Bandaranayake, alone may have the locus standi to challenge her removal.

Bandaraynayake’s earlier petition challenging the PSC procedure, too, may have become in-fructuous since. She has a month’s time now to move a Fundamental Rights (FR) petition in the matter – or, for the enforcement of a right she may claim she continued to have – unless she wants to wait for another day, another environment, to challenge her removal. She has age on her side, but how the law of the land may play out would remain to be seen.

Advised to stay overseas

After being served the impeachment order, which she seems to have accepted without protest, Bandaranayake declared that she still continued to be the ‘Chief Justice’. In the same vein, she said she had the people’s support and looked up to them for the personal security of her three-member family, which includes a son. The former sounds a legal position that she has taken, the latter sounds sort of political, too.

Not to be left out of the political discourse on the impeachment, which has been enjoined by legal minds in the nation’s polity, former armed forces chief and one-time presidential aspirant, Sarath Fonseka, has been urging Bandaranayake continuously for joining hands with him to float a new political party, to upstage those in authority at present.

From the Government side, Interior Minister John Senaviratne has advised her publicly not to fall prey to ill-advice of the kind. According to him, settling down overseas is the only course available to her. That is saying, and meaning, a lot. It is unclear if that is also the official position of the Government on the subject.

Driven to the wall or otherwise, should Bandaranayake enter the political arena, now or a little later, she would have given life to some of the claims of Government politicians that she was conspiring with some Opposition party leaders and ‘external powers’ to effect a ‘regime-change’ in the country. It was the kind of charge thrown at Fonseka, when he inexplicably, and rather unconvincingly, quit the job as the top guy in the armed forces, to contest for the presidency against incumbent Rajapaksa in January 2010.

The election results showed some purchase for the ruling coalition’s position. It also showed that the ‘military hero’ of the conclusive ‘Eelam War IV’ could not bring any additional vote to the collective Opposition kitty at the height of his popularity, starting with his native Ambalangoda. Bandranayake could thus be expected to weigh her political options even more, though it could be tempting to look at the ‘political vacuum’ that is supposed to be existing in the Opposition ranks, with some hope.

The temptation may be there in the advisors of Bandaranayake to hope that she could still re-emerge like her one-time Pakistani counterpart, Chief Justice Iftikhar Mohammad Chaudhry, who had to quit office after Gen Pervez Musharraf became the martial law administrator and later the ‘elected President’. Contemporary Pakistani history in the collective South Asian neighbourhood has shown that CJ Chaudhury has out-lived Musharraf’s shelf-life as a politico-military leader of the nation, to return where he belonged – and on his terms. But Sri Lanka is not Pakistan, where the military excesses have since been replaced by an excessive dose of judicial activism.

Divided House, Still

On the legality and constitutionality involved in the impeachment, the political Opposition remains a divided house, as on other matters. On the question of impeaching Chief Justice Bandaranayake, the UNP and the TNA, for instance, was with the Government on the sovereignty and supremacy of the Legislature over the Judiciary. What these parties now question is the legality of the procedure followed by the PSC, and the constitutionality of the procedure adopted.

On the politics of it all, the Opposition is both clueless, rudderless – and is also dis-spirited for effect. More voices came to be heard from among the civil society than the political Opposition. Where the political Opposition spoke, it was either too late, or too vague, or both. So much so, the JVP went out of the way to hit at the UNP, saying party leader and former Prime Minister Ranil Wickremesinghe was hand-in-glove with the Government on the issue. Fonseka was more circumspect in the beginning.

The JVP has since started lending voice to the low-profile Government claims to an ‘internal conspiracy’ to destabilise Sri Lanka, even while peppering its position with charges against the nation’s leadership. While the JVP and Fonseka’s DNA staged a walk-out when Parliament began debating the PSC recommendation on impeachment, the numerously larger UNP and TNA participated in the discussion – and voted against the motion.

The division in the Opposition ranks was so palpable that at the end of the voting, no one was looking out for the votes against the motion in Parliament – but for the names of the Government combine members who had abstained. It was yet another academic exercise in futility – of the parliamentary process, supposedly aimed at sending out a political message, of which there was none!

(The writer is Director and Senior Fellow at the Chennai Chapter of the Observer Research Foundation, ORF, the multi-disciplinary public policy think-tank, headquartered in New Delhi.)