Prof. Laksiri Fernando
It may appear that the Rajapaksa regime is so powerful that even for the initial impeachment motion against the Chief Justice, Dr Shirani Bandaranayake, it has gathered 117 signatures of parliamentarians. What it actually required was 75 or one third of the 225 member Parliament. But what appears on the surface is not actually the case. It is so powerful; but it is so weak. It is powerful in numbers within and outside Parliament, at present, but weak in moral legitimacy and justice both from a national and an international perspective.
The reason behind the impeachment is obvious. It is to retaliate and circumvent the constitutional and legal objections coming from the Supreme Court and the judiciary for its arbitrary rule. The full content of the impeachment motion is yet to be revealed.. But the appointment of the Secretary to the Judicial Services Commission (JSC), Manjula Tilakaratne, and even the ‘refusal’ to meet the President on 18 September, highlighting the interference with the judiciary, must have been included in the impeachment petition. While the appointment of the JSC Secretary was made a long time back, there is no rule to say that the senior most judge should be necessarily appointed to the position of secretary. The JSC required a competent and an efficient person with nothing against the others who are perhaps equally qualified.
The government spokesman, Keheliya Rambukwella, has used the terms ‘overstepping’ its role and ‘improper conduct’ in justifying the impeachment motion against the Chief Justice. It is quite possible that the determination on the Divineguma Bill, both the initial one to direct the bill to all provincial councils and yesterday’s one, determining whether the endorsement of the Governor of the Northern Province is sufficient on behalf of the Provincial Council, must have angered the government. It is extraordinary, however, to impeach a Chief Justice, in the midst of a Supreme Court determination on the constitutionality of a bill and its procedure that disfavours a government action, whatever the importance or the merits of such a bill. This is particularly so, as it is the unanimous decision of a three member bench of the Supreme Court which in itself exposes the ulterior motive behind the impeachment motion. No other argument is necessary.
It is clear where the Rajapaksa regime is heading. This would have been clear, but unfortunately not to many, when the 18th Amendment was passed in September 2010. Only now has the Communist Party realised its mistake. The impeachment of the CJ is a dress-rehearsal for many more to come. Revamping of the whole judiciary is on the cards whether it will succeed or not.
The next major assault would be on the 13th Amendment and the provincial council system. The regime is insecure otherwise. The power of the Eastern Provincial Council soon would be on the balance and if the provincial council election is held in the North, the process of the de-legitimation of the regime would be accelerated. One major trait of the present regime, in fact a dangerous one, is its ‘pseudo-populist’ nature which is a farce. The opposition to the Supreme Court and its determination on the Divineguma Bill was mustered on this basis, within Parliament and outside. This is the most dangerous trend.
Those who are blind to populist rhetoric and who cannot distinguish between what is in letter and what is intended, even the Supreme Court decision on the Divineguma bill might appear ‘not correct’ even though they may like to ‘defend devolution’ like a pet dog. They might stumble when the real challenge comes in abolishing the 13th Amendment and the provincial council system. Then, in addition to populism, it would be ‘patriotism’ against foreign interference or imperialism. Even the ‘moderate’ left in Parliament cannot be completely relied on, on the issue of the 13th Amendment.
The challenge to be faced by the Rajapaksa regime in the future with ‘law and justice’ is not only national but primarily international. Even the internal challenge will not go away and the impeachment might boomerang on the regime. The submission of a motion is not the end of an impeachment. It should go before Parliamentary debate and the legal profession and the civil society has ample time to protest against the move.
The judiciary in Sri Lanka with an independent tradition since the Bracegirdle judgement in 1937 cannot be coerced easily. Minister G.L. Peiris recently told Parliament that many of the sitting judges are his students, perhaps to indicate to the house that he has some authority over them. The statement was completely inappropriate and an insult to the judges. The guru-gola (teacher-student) relations apart, the issues that confront the judiciary are to do with clear legal matters which the government is hell bent to neglect, by-pass and violate. No judiciary or a judge would be in a position to ignore justice in their right mind. They might waver for a while but not for long and after this, there will be more vigilance on the judiciary nationally and internationally.
The major challenge for the government in the future would be from the international justice system. That may be the main reason why the government is so erratic and almost hysteric about the stance of the national judiciary to safeguard its independence. There is a link between the two and some of the matters bordering on international justice i.e. ‘war crimes’ might come before the Supreme Court of the country soon and if a prominent legal scholar like Dr Shirani Bandaranayake is at the helm, it would be a virtual disaster for the government. This is another reason why this impeachment is brought against her. It is likely that the UN Human Rights Council (UNHRC) would request the Sri Lanka Supreme Court to investigate the alleged violations reported in the UN Experts Report at the last stages of the war.
Even otherwise, there is no easy escape for the Rajapaksa regime from war crime charges which would haunt the regime, it’s perpetrators and those who have been wilfully covering them up so far, until they go to their graves. On the other hand, the international civil society is getting their acts together, step by step, to utilise the available international legal avenues to pursue these cases. Thousands of surviving victims and their loved ones from the atrocities of both sides (the LTTE and the Government) are in perpetual agony. If we are not doing justice to them, Sri Lanka is not a civilised society. It is argued, and perhaps the government believes, that the setting up of an international tribunal on Sri Lanka could be stalled with the backing of China in the Security Council which might or might not be the case when the crunch comes.
There are other avenues available in the Rome Statutes of the International Criminal Court (ICC), where even a sitting Head of State could be brought before the Court, even without the respective country being party to the ICC. No Security Council approval is necessary.
This is what the Rajapaksa regime is scared of: National and International justice through independent judicial institutions.