Sunday Times 2
Impeachment of a CJ: Day of lightning and year of thunder
January 11, 2013 is Black day in the history of the judiciary in Sri Lanka and perhaps the darkest day for democracy.
On that day, Parliament accepted the report of the Parliamentary Select Committee that inquired into the charges set out in the impeachment motion against Chief Justice Shirani Bandaranayake and impeached the Chief Justice.
It is not the adoption of the impeachment motion that was the core issue. Parliament by accepting the report of the PSC and the President by removing the Chief Justice acted disregarding — and in fact throwing away — the judgments of the Supreme Court and the Court of Appeal made after consideration of submissions made in court by the AG on behalf of the state and other counsel appearing for those who challenged the legality of the procedure adopted by Parliament and the PSC to impeach the Chief Justice.
Chief Justice 43 Shirani Bandaranayake clad in a black saree greets her well-wishers in Hulftsdorp before she leaves for the parliament complex to appear before the PSC. File photo.
This is as far as we are aware the only incident in the history of any known democracy where government has acted in disregard/ throwing out judgments of Superior Courts established under its own Constitution.
These are blatant acts of contempt of court but our courts were helpless and unable to enforce the law against those responsible due to the enormous political power vested in them.
In Pakistan when Prime Minister Yousaf Raza Gillani refused to respect and act according to a judgment of the Supreme Court, he was called to answer charges of contempt of court and he had to resign.
It is a pathetic situation to see that in our country the political establishment is allowed to carry on with the Government after acting in complete breach of the constitutional obligation to act in accordance with the constitution and uphold and defend the constitution. What we see is the unique situation where Parliament and the Executive acting, disregarding orders of the Superior Courts pronounced under the constitution, still continues to govern under the same constitution. What this in fact means is that obedience to the Constitution is selective and will be only obeyed to the extent that it is acceptable to the political establishment. That is a complete breach of governance under the constitution.
This is a serious breach of the obligation under the constitution, as under article 125, it is the Supreme Court that has the sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of the constitution. This is the most important jurisdiction vested in the Supreme Court under the constitution.
The crisis in good governance is much more serious than it is seen on the surface. The whole impeachment process is illegal and in violation of the constitution as interpreted by the Supreme Court and set out in the judgment of the Court of Appeal. Further it is in violation of international conventions and international commitments such as the adherence to the Latimer House principles on impeachment of judges of Superior Courts. This is a direct challenge to the authority of the Superior Courts and in fact the demonstration of the right to act in violation of decisions of Superior Courts and international commitments.
The members of Parliament who voted for the impeachment motion as well as the President have acted in violation of the oath to uphold and protect the constitution. Therefore, the legitimacy of this government is at stake.
January 11th is the day of lightning that shook all of us. What has happened during the past year is that a series of thunders has resulted in the complete breakdown of the rule of law in our country.
Non state actor acting completely outside the law has arrogated to itself the task of enforcing its own laws and values on citizens of our country. It started with the attack on ethnic and religious minorities but now it has spread to attacks on political opponents and those who dissent demonstrating clearly that there is no space left for dissent and diversity.
What began as attacks on churches, kovils, mosques and business establishments of religious and ethnic minorities has now reached a situation where public servants are summarily punished by politicians for disobedience (as seen from the incident where a teacher was asked kneel down) and where public servants are punished for doing their duty (as seen from the transfer of 23 police officers for raiding an illegal casino business carried on by close associates of the political establishment), and to attack political parties for acting against, what they feel are not legitimate (such as the attack on the UNP leader and the UNP headquarters for allowing the holding of an exhibition). The eviction of residents and unlawful demolition of premises without recourse to the law is causing a serious sense of insecurity in society.
These incidents have taken place in the full view of the public and the benign eye of the law enforcement authorities in broad daylight and well documented by video cameras and freely telecast over TV channels. The whole judicial process is being challenged by the spate of extrajudicial killing of persons accused of grave crimes while in police custody. This amounts to arrogation of judicial power by the administration and in complete disregard of rule of law.
The impunity with which these blatant criminal acts are committed demonstrates the complete breakdown of Rule of Law that has taken place during the last year.
(The writer is chairman of the BASL Standing Committee on Rule of Law)