In a dramatic turn of events, Chief Justice Dr. Shirani Bandaranayake and her lawyers pulled out of the PSC proceedings, on Thursday, citing a number of reasons. They said they did not have faith in the PSC process and took exception to treatment meted out to the CJ, which, in their opinion, amounted to an affront to her dignity. Although proceedings were a closed-door affair and no names were named it is not difficult to imagine what transpired there and who was responsible for the alleged slight or slur. The Opposition committee members, too, have expressed their displeasure over certain issues including the denial of some more time to the CJ to file answers. They also withdrew from the PSC yesterday afternoon.
To every action there is an equal and opposite reaction. Parliament rejected out of hand notices issued by the judiciary and decided to go ahead with the PSC process without caring a damn about a recent Supreme Court recommendation that the PSC proceedings be postponed until its ruling. So, the CJ’s pull-out from the PSC proceedings must have warmed the cockles of the hearts of those opposed to the impeachment motion.
What we are witnessing is a game of chicken with neither party to the dispute ready to give in. Both are confident of victory, having crossed the Rubicon though it is not difficult to guess who will emerge the winner if our experience with the past personality clashes and prestige battles etc is anything to go by. Whoever wins, it will by a Pyrrhic victory, given the devastating cost it is sure to entail. In a lawsuit, it is said, the loser is reduced to ash and the winner to cinder. The impeachment tussle is bound to yield a similar result. We are wary of predicting the winner in the on-going clash of the titans. But, the loser will certainly be the country’s democracy whose wellbeing is dependent on the coexistence among the three arms of government and their respect for each other. The unnecessary showdown between the legislature controlled by the Executive President and the Judiciary and the deplorable manner in which they are undermining each other’s authority have led to a serious erosion of public faith in both institutions.
Three bio-energetic forces or doshas, (Vata, Pitta and Kapha), according to Ayurveda, should be well- balanced for humans to stay healthy. Such a fine balance as regards the executive, legislative and judicial powers is a requisite for a country’s political health. One may argue that no society has been free from clashes or at least friction among these three branches of government, but in advanced democracies blessed with strong institutional safeguards and well-entrenched politico-legal traditions, they rarely develop into crises.
Thanks to the present Constitution, the Executive, the Legislature and the Judiciary have always been at loggerheads. The first term of late President J. R. Jayewardene began with many a judge being thrown out of job and his second term saw a bitter clash between the Judiciary and the Executive an attempt to impeach a CJ. The late President Ranasinghe Premadasa was troubled by a legislative coup in the form of an abortive impeachment bid. He, however, had no problems with the Judiciary which he effectively kept under his executive thumb. That was the time when judges were scared of opening their mouths—even for a tooth extraction! There was a brief respite during President D. B. Wijetunga’s tenure. President Chandrika Kumaratunga clashed with the legislature and went so far as to sack a UNP-led government having lost control over Parliament in 2001 and been reduced to a titular head of State in all but name for three years. President Mahinda Rajapaksa’s first term was characterised by a wrangle with the Judiciary and currently his government is all out to oust the incumbent CJ.
The present Constitution is rotten to the core and needs to be replaced with a properly formulated one. That, however, is a long drawn-out process. What needs to be done urgently at this critical juncture, in our opinion, is to suspend both PSC and judicial processes in respect of the impeachment motion with two warring parties to taking a few steps backwards so as to create space for a third party intervention to de-escalate the conflict. The government, no doubt, has the ability to bulldoze its way through, but we hope it will act with restraint and consider the options suggested by others including the Opposition and the CJ herself, who has called for ‘an independent and impartial panel in keeping with the universally accepted rules and norms’ to inquire into the allegations against her.
The ball is now in the government’s court. Willingness to compromise and flexibility, it needs to be told, are no signs of weakness. They are the hallmarks of a democratic dispensation. It is still not too late.
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