The die seems to have been irretrievably cast and it is only a matter of time before Chief Justice Shirani Bandaranayake will be out of office. Nobody can be happy about the process that has been employed to deal with whatever act of omission or commission she is alleged to have been guilty of and the manner employed to determine guilt or otherwise will be viewed with distaste by all reasonable people. The country’s credentials as a functioning democracy has been brought to question by these events and for this all Sri Lanka’s people and not just its rulers will have to pay a price.
There was every possibility of handling this matter with greater circumspection and minimizing the damage that would necessarily accrue by using a battering ram technique. But that was not to be. The government was obviously in a hurry to finish the unpleasant business for reasons that are undoubtedly practical. When matters such as these drag on, negative consequences are inevitable. So there was no concession to public opinion or even to voices of reason, however feeble, from within the government itself. The Executive had clearly decided which way to go and there was none to stand in his way at least from the ruling coalition.
The Parliamentary Select Committee investigating the Chief Justice, at least in terms of representation, was presented to the country as a microcosm of the composition of the legislature, reflecting the break-up between government and opposition forces in the House itself. Thus the government had seven members to the opposition’s four and the only saving grace was that the majority did not decide who from the minority should sit on the committee. Party leaders were duly consulted as is traditional in these matters and the PSC accordingly appointed with a lawyer chairman from the government side. There was more than a sprinkling of legal professionals in the PSC, more from the opposition than the government, and a great deal of advice and comment that was on tap was barely taken note of. Given the published reports of what was happening within the committee, despite the bar on the reporting of proceedings, the CJ seemed to have had little option but withdraw from proceedings which the state media has seen as “fleeing’’ from the PSC.
While it must be readily admitted that a PSC is not a court, it would be expected that experienced members within it would ensure that the proceedings continue with due decorum and with fairness to the person under investigation. A sense of justice and fair play is what is expected from a body such as a PSC on which an onerous responsibility has been cast. Now that the report is in, it went to the Speaker at 9 a.m. yesterday, it will no doubt be debated in the House a month hence and an address to the President duly presented. Thereafter it is he who must decide what must follow and we have little doubt that would-be CJs would already be jostling for office. Hopefully, all the material against the incumbent, presented in the charges as well as whatever defenses she has to offer will come up in the public domain so that people can make up their own minds on whether the action that has been taken, once that happens, is justified or not. But of course they will be presented with a fait accompli and there will be very little that they can do about it.
At least for now, it appears that the CJ had not been given sufficient time to respond to the charges that have been preferred against her. These were published and her brief rebuttals are also in the public domain. As is to be expected in these matters, both sides pulled no punches with the government using the state media and also mobilizing crowds of protestors to counter what various civic and other organizations drummed-up in support of the CJ. But unlike in the case of Pakistan where the sacking of a Chief Justice who stood up to a powerful President led to massive protests by the legal fraternity eventually forcing a back down, what happened here was relatively ineffective. Lawyers did protest and the Bar Association spoke up, but for whatever reason the activism we saw lacked the punch to force any climb down by the president or his government.
There seems to be a misconception in some quarters that the conflict is one involving the supremacy of the legislature versus that of the judiciary. This is far from reality. The constitution has made abundantly clear that it is the People who are sovereign. The legislative power of the People has been delegated to Parliament and the judicial power to the Courts. The only exception, as has been pointed out while the present controversy swirled around us, is on matters relating to parliament’s own powers and privileges. We did see an editor once tried by a previous parliament over a triviality relating to some mixed up captions, in an exercise that did no credit to that parliament; but subsequent matters were sent for determination by the courts. The constitution decrees that this is what must be done if a president is to be impeached with the Supreme Court required to determine whether there is substance in the charges preferred. Unfortunately this is not the case where judges of the superior courts are concerned. Although the draft constitution of President Chandrika Kumaratunga of 2000 sought to make a correction, that Bill never saw the light of day. A suggestion by late Speaker Anura Bandaranaike about amending a weakness in standing orders that came into the fore in this instance was also not acted upon.
Hopefully, the present experience will encourage necessary correction of constitutional provisions as well as those in standing orders sooner rather than later although none of that will do Shirani Bandaranayake any good. But no constitution can cover every situation that can arise. That is why it is imperative that the executive, legislative and judicial branches respect the separation of powers and cooperate with each other to ensure the smooth functioning of democratic institutions and the primacy of the People’s interests at all times. Several bad precedents have been set in the present instance and it is our hope that these will not get entrenched.