Intimidating judiciary and derailing democracy

| by Shanie

"When the Nazis came for the communists,

I remained silent;

I was not a communist.

When they locked up the social democrats,

I remained silent;

I was not a social democrat.

When they came for the trade unionists,

I did not speak out;

I was not a trade unionist.

When they came for the Jews,

I remained silent;

I wasn’t a Jew.

When they came for me,

there was no one left to speak out." - Pastor Martin Niemöller (1892–1984)

( November 10, 2012, Colombo, Sri Lanka Guardian) The fifteen years after the end of the First World War saw the rise of the Nazis in Germany. In 1933, through parliamentary elections and backstage manoeuvrings, Hitler had himself constitutionally appointed as the German Chancellor by President Paul von Hindenburg. Not long after, he presented in the Reichstag the Enabling Bill which was to give him dictatorial powers written into the Constitution. The Nazis were the largest single party in the Reichstag but they did not enjoy a majority. They needed a two-third majority to amend the Constitution. Hitler assured the Reichstag that "The government will make use of these powers only insofar as they are essential for carrying out vitally necessary measures...The number of cases in which an internal necessity exists for having recourse to such a law is in itself a limited one." The Nazi brown shirts had an intimidating presence around the building where the Reichstag was meeting, some even inside the chamber. In the end, the Bill was passed by 441 votes to 84, with only the Social Democrats having the courage to oppose it. Pastor Neimoller’s lament was that he and other religious leaders and the intellectuals did nothing to stop this assault on democracy and Germany’s descent into a Nazi dictatorship. Once the Enabling Act became a part of the Constitution, Hitler’s assurances counted for nothing. Does all this not sound similar to the passage of the Eighteenth Amendment in Sri Lanka?

It is disgraceful to observe the orchestrated vilification of the Chief Justice by the state media and the members of the government parliamentary group, including members at the top of the hierarchy, even resorting to scurrilous unsigned poison pen letters. We do not wish to comment on the fourteen point ‘charge sheet’ that has been framed.

In 2010, the infamous 18th Amendment was presented before the Sri Lankan Parliament as an urgent Bill. A Bench of the Supreme Court presided over by the present Chief Justice determined that the Amendment did not violate any provisions of the Constitution, as long as it was passed by a two-third majority. Parliament, with the aid of crossovers, the votes of the old Left and some minority parties passed the Bill with a two-third majority. Mahinda Rajapaksa was constitutionally vested with autocratic powers. The 18th Amendment was able to do for Rajapaksa what the Enabling Act did for Hitler.

Quitting Academia for the SC Bench

The present Chief Justice, Dr Shirani Bandaranayake, had a distinguished academic career and was Dean of the Faculty of Law at the University of Colombo when she was appointed a Judge of the Supreme Court in 1996. This columnist remembers a Seminar organized by the Ethics Committee of the Sri Lanka Association for the Advancement of Science. in 2003. Dr Bandaranayake and Justice R B Ranaraja were among the speakers at the seminar which was presided over by Prof Ratnajeevan Hoole In the course of his introduction, Prof Hoole stated (quoted from the official record): "Many of you will be aware that Prof. K.D. Arulpragasam, former and founder Vice Chancellor of Eastern University, former President of SLAAS and UGC member, passed away peacefully while asleep at home on Wednesday. His funeral is tomorrow. When I visited him last weekend with my wife and told him of this evening’s event, he insisted he should come this evening and arranged for a driver because of his failing eye sight. As he put it, and I quote, "Shirani was my colleague at the University of Colombo when we served as Deans together, I of Science and she of Law. She surely will be Chief Justice one day. I must hear what she has to say" That was a warm tribute from another distinguished and respected academic. Fifteen years after being on the Bench of the Supreme Court Judge, on the mandatory retirement of her predecessor, she was appointed Chief Justice.

Prof Hoole had also commented on her academic credentials and stated that a promising academic career at University of Colombo saw Bandaranayake promoted early to Associate Professorship on merit (as against time-served). She forewent her career in academia to join the highest bench. Her biggest challenge, she says, is not her case-load or its complexity, but handling the sniping from men. Thus her perspectives are not only as an academic and jurist, but also in minority, standing her ground and asserting her right to be where she is.

Reasons for the Impeachment

The sniping by men of this outstanding legal luminary has continued. It is reported that an infamous and opportunist trio were given the responsibility for drafting the fourteen charges in the Impeachment Motion against the Chief Justice. One of the UPFA parliamentarians appears to have quite nonchalantly told a group of nondescript Samurudhi officials in Kekirawa that the real reason for the impeachment motion was not the ‘charges’ relating to any misdoing. It was really because she presided over the Supreme Court Bench which determined that the Divineguma Bill had to follow the laid down constitutional procedures before it became law. What the SC Bench determined was obviously in terms of the Constitution. But, the Divineguma Bill is a brainchild of one of the Rajapaksa brothers who are not used to any challenges to their authority, whether constitutional or not.

Another issue that irked the President was when the Chief Justice and the Judicial Service Commission politely declined to meet the President on his invitation. The invitation immediately followed the SC determination on the Divineguma Bill and the disciplinary action taken by the JSC against a judicial officer (reportedly a friend of the first family). The President’s original explanation for the invitation was that it was to discuss budgetary allocations for the Judiciary. A lot of knowledgeable people and apparently the JSC itself did not take that explanation at face value; and the Presidential Secretariat itself quietly dropped that excuse. The JSC therefore quite rightly declined the invitation as an interference with their judicial functions.

CJ Neville Samarakoon

The present Chief Justice, like every one of us, undoubtedly has her faults. But we must acknowledge that she has conducted herself with propriety and dignity as befitting her office. She would also have been subject to political pressures, but she is not known to have succumbed to every whim of the Executive. The Executive takes umbrage only when their personal pride or authority is defied. That appears to have been the case this time. Neville Samarakoon had to face an impeachment as Chief Justice he defied another authoritarian Executive. S Nadesan QC argued for several weeks before the Parliamentary Committee hearing the impeachment that the ‘charges’ were untenable in terms of the rules of natural justice. The majority of that Committee held with Nadesan, even though five of the eight-person Committee were members of Jayewardene’s government parliamentary group. But that was another era when we had parliamentarians of some calibre who upheld some semblance of judicial values.

It will be interesting to see who form the Parliamentary Committee this time. It will have to be people outside the 117 who have already signed the impeachment motion because the rules of natural justice demand that petitioners themselves cannot sit in judgement over their own petition. It will also be interesting to see how the ‘charges’ are going to be sustained, even though we are now aware that the Puttalam parliamentarian has stated publicly that these ‘charges’ are not the real reason for the impeachment.

Framing of the ‘Charges’

Also interesting would be how this whole drama ends. Already there are wide rumours, no doubt well-founded, that the Executive has already decided on the next Chief Justice and the next Attorney General. It is not known why it is necessary to talk of replacements when neither of the present incumbents of the respective positions have been found guilty of any misbehaviour or wrong-doing. It is irresponsible and demoralising for the incumbents when such rumours abound. But worse would be, if the replacements turn out to be amenable to political pressure and fail to uphold and safeguard the integrity and dignity of their respective offices.

It is disgraceful to observe the orchestrated vilification of the Chief Justice by the state media and the members of the government parliamentary group, including members at the top of the hierarchy, even resorting to scurrilous unsigned poison pen letters. We do not wish to comment on the fourteen point ‘charge sheet’ that has been framed. Already, many have pointed out errors in the ‘charge sheet’ and, no doubt, they will be adequately dealt with when the Parliamentary Committee sits in judgement. The Chief Justice’s lawyers have already pointed out that the charges relating to her bank accounts and the purchase of a condominium by her sister on Australia have been above board. The sister had sent the entire purchase price of the condominium through bank remittances from Australia. The CJ has also declared all her assets in the banks. The several other accounts listed in the ‘charge sheet’ have either been already closed or are inoperative with zero or near zero balances. On the face of the response of the lawyers, it does appear that the unholy trinity who drafted the charge sheet have not done their homework.

Undoubtedly, Sri Lanka is facing a crisis of monumental proportions. We cannot, as Pastor Niemoller lamented, stand aside and not speak out. The very foundation of democracy is being threatened. It is time for the people of this country, under the leadership of the religious and the independent and free media, to fight this tyranny.