| by Basil Fernando
( December 27, 2012, Hong Kong, Sri Lanka Guardian) When the impeachment proposal was announced, the
immediate reaction of many was that the outcome was pre-determined as the
government has a two thirds majority in Parliament (acquired as this was even
by foul means). It was therefore predicted that this would be the end of the
matter. There will be rituals, like the PSC proceedings which were presumed to
be artificial and then the beheading of CJ will take place, after government
MPs raise their hands in favour of the impeachment. Thereafter the Supreme
Court will not interpret the Constitution against the government.
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The fact that lawyers and judges rose to the occasion makes this attempted impeachment of the Chief Justice different to the attempted impeachment of Sarath Nanda Silva. Then, the legal community by and large wished to rid of him. It was the government that protected him.
These predictions however were proved wrong
within a very short time. One simple issue came to the forefront of the debate concerning
the principles relating to removal of the judges of the superior courts. In
respect to this issue, near unanimity that the process leading to the easy
removal of a judge was contrary to justice and equity emerged. Even the
president, the chief mover of the impeachment declared that he had qualms of
conscience on the matter.
One primary factor that was not predicted was
the manner in which the courts reacted to the matter. On an earlier occasion
when the late Anura Bandaranayake as the Speaker, refused to accept the summons
issued by the Supreme Court in relation to a stay order on a motion of
impeachment against Sarath Nanda Silva, the matter ended there. The same
approach was adopted by the Speaker this time but the matter has not ended in
that same way. Courts have claimed the right to have the last word on the
matter. Thus the raising of hands in the parliament will not be the end of the
matter. If the matters raised by the Chief Justice are proved in Court, the
appeal court had said, it will declare any decision taken on the basis of PSC
findings as null and void. Thus, there are many more episodes to this drama
which may be more exciting than what was predicted initially.
Some say, that the government still has one more
easy way to achieve its objective. That is by way of the assassination of the
chief justice. Some websites have even published stories about alleged plots in
that direction. It is alleged that some criminal serving long sentences are
being mobilized. Given the past record of the government, there is reason not
to disregard such stories as mere rumours. However, if this were happen, the
consequences impacting on the government will be much worse than otherwise.
The fact that lawyers and judges rose to the
occasion makes this attempted impeachment of the Chief Justice different to the
attempted impeachment of Sarath Nanda Silva. Then, the legal community by and
large wished to rid of him. It was the government that protected him.
What is even more impressive in the current
context is the manner in which public opinion came to be formed in defense of
the judiciary, even despite the fact that the people were unhappy about the way
that the judiciary has performed in the past. It was clear that what the people
were defending was not the incumbent Chief Justice but the judiciary itself.
The fight changed from one between the government and Shirani Bandaranayake to
a fight between the government and the people. Obviously the people had been
waiting to confront the government and the government had provided them that
opportunity. Despite all the rubbish that sycophants who act as journalists in
the state media were propagating, many people cast aside their inhibitions to
express their clear opposition to the repression that government was engaged
in.
The way that the government members of the
parliament raise their hands is not the most important aspect of this
impeachment move. Deeper questions have been raised and the people have sought
answers to the questions that they have managed to raise. There is a visible
change in the culture of political silence that was prevailing after the
accursed victory of J.R. Jawardence in 1977.
Perhaps Karl Popper was right when he wrote, “the
future depends on ourselves, and we do not depend on historical necessity” (The
Open Society and Its Enemies). Sri Lanka’s future need not necessarily be
one under totalitarianism and we may find our way out of the shackles of the
1978 Constitution and the equally accursed 18th amendment.
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