What is it with South Asia’s strongmen and top judges? Only five years ago General Pervez Musharraf of Pakistan found he had bitten off more than he could chew when he tried to sack Chief Justice Iftikhar Chaudhary. Now President Mahinda Rajapaksa wants Sri Lanka’s Chief Justice out, but like her Pakistani counterpart, Shirani Bandaranayake is determined to fight it out. The chances of her emerging victorious seem slim but the battle is sure to roil the country’s institutions, and put to test Sri Lanka’s Constitution like never before.
The statute empowers the President to remove a judge after an impeachment motion is carried by a simple majority in Parliament. For Mr. Rajapaksa, whose United People’s Freedom Alliance enjoys a two-thirds majority, the numbers are not the problem. A resolution, which lists 14 charges of misconduct by the Chief Justice, and has been duly signed by one-third of the parliamentarians, will be debated in January. A parliamentary select committee has already pronounced her guilty of three charges. But instead of meekly stepping down, Ms Bandaranayake has challenged in the Court of Appeal the legal authority of a parliamentary committee to investigate the Chief Justice. Indicating that prima facie she has a case, the court has sent notices to the PSC members.
While not outright staying the impeachment process, the appeal court has advised Parliament from going ahead with it until the case is decided. In addition to the challenge to its authority, the parliamentary committee is also under fire for not following due process. The committee acted in violation of the rules of natural justice by not giving Ms Bandaranayake time to defend herself, as her petition alleges. The conduct of the committee members too was anything but parliamentary. They taunted the country’s first judge as a “mad woman” and used sexist words to address her. The stand-off has lent weight to the criticism that the Rajapaksa regime does not take well to dissent. While the truth behind the charges against the Chief Justice is to be established, what is known is that the Supreme Court had given several judgments this year that went against the government. The tipping point was the ruling against a Bill that undermined provincial authority. The Bill was challenged, among others, by the Tamil National Alliance as it went against the government’s promise of more autonomy to the Tamil region. It can only be hoped that the impeachment battle is sorted out without the weakening of institutions or of democratic and political processes — the last thing a country with an unresolved and urgent ethnic question needs.