| by Laksiri Fernando
(
November 02, 2012, Sydney, Sri Lanka Guardian) 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.
Motives Behind
The
reason behind the impeachment is so obvious. It is to retaliate and circumvent the
constitutional and legal objections coming from the Supreme Court and the
judiciary at large for its arbitrary rule. It is not yet revealed what the full
content of the impeachment motion is. 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
Secretary position. What the JSC required was a competent and an efficient
person. This is nothing against the others who are perhaps equally qualified.
 |
The challenge that the Rajapaksa regime is going to face in the coming future with ‘law and justice’ is not only national. It is primarily international. Even the internal challenge will not go away soon. Even the impeachment might boomerang on the regime.
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, determining 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 apparently disfavours a government action, whatever the
importance or the merits of such a bill. This is particularly so, as the decision
is a unanimous one, of a three member bench of the Supreme Court. This is in
itself exposes the ulterior motive behind the impeachment motion. No other
argument is necessary.
Implications
It
is clear where the Rajapaksa regime is heading. This would have been clear, but
not unfortunately to many, when the 18th Amendment was passed in
September 2010. Only now that the Communist Party has recognized its mistake. Impeachment
of the CJ is a dress-rehearsal for many more to come or to bring. 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. It is a farce. It is on that basis that the
opposition to the Supreme Court and its determination on the Divineguma Bill
was mustered 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 even might stumble when the real challenge
comes in abolishing the 13th Amendment and the provincial council
system. When that comes, 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.
Dual Challenge
The
challenge that the Rajapaksa regime is going to face in the coming future with
‘law and justice’ is not only national. It is primarily international. Even the
internal challenge will not go away soon. Even 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 have ample time to protest against the move.
The
judiciary in Sri Lanka with a long independent tradition since the Bracegirdle
judgement in 1937 is not an institution that can be coerced easily. GL 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. After this event, there will be more vigilance on the judiciary nationally
and internationally.
The
major challenge for the government in the coming 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 in the country soon.
When
these matters come before the Supreme Court, 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 most likely that the UN Human Rights Council (UNHRC) requests 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. On the one hand, those will haunt and haunt the regime, and the
perpetrators, and those who have been wilfully covering them up so far, until
they go to their own graves. On the other hand, the international civil society
is getting their acts together, step by step, to utilize the available international
legal avenues to pursue these cases. Thousands and thousands of surviving
victims and their loved ones from 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 civilized 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. This might be or
might not be the case when the crunch comes.
However,
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.
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