| by Law and
Other Things
( December 6,
2012, London, Sri Lanka Guardian) Earlier this week proceedings were initiated
in the Sri Lankan Parliament to impeach the Chief Justice of Sri Lanka, Dr
Shirani Bandaranayake. The allegations against Chief Justice Bandaranayake are
of personal misconduct and failure to disclose her income and her foreign
exchange . However, most media sources widely agree that the impeachment
proceedings were triggered by an adverse judgment given by her striking down
the Divenguma Bill. The judgement required that the bill had to be enacted with
a two thirds majority and needed a referendum for one of its provisions.
The bill would
have centralized development funds which were previously devolved to local
authorities, and would have granted greater discretionary powers to the
Minister of Economic Affairs. Devolution has been a long standing demand of
Tamil parties and was brought as part of the peace process. However,
ethno-nationalist Sinhala politicians want to nullify even the limited
devolution that has been introduced. Basil Rajapakse, the Minister for Economic
Affairs, is the brother of the President Mahinda Rajapakse. The Speaker of
Parliament, who initiated the impeachment proceedings and heads the
Parliamentary Select Committee, is Chamal Rajapakse, another brother of the
President.
The first two hearings
have begun before the Parliamentary Select Committee. Chief Justice
Bandaranayake's request to have the hearings made public have been refused, and
her motion to two members of the eleven member committee to recuse themselves
on grounds of bias (she had ruled against them or their family members) has
been ignored. This is not the first attempt to impeach a Chief Justice in Sri
Lanka, governments had made attempts to impeach Chief Justice Neville
Samarakoon (1984) and Chief Justice Sarath N.Silva (2001). However, the stakes
appear to be much higher in this case.
1) The Chief
Justice has emerged as a symbol around whom a large number of groups have
rallied, including lawyers, trade unions, Catholic priests and the influential
Buddhist monks. The government has been forced to bus in counter protestors to
demonstrate against the Chief Justice. The support extended by all levels of
judiciary and opposition parties to Chief Justice Bandaranayake is worth
noting.
She has been in
several ways an unusual appointment. She remains to the best of my knowledge
the only academic to have been appointed to a Supreme Court in South Asia, and
her lack of judicial background had led to several protests by lawyers and
judges at the time of her appointment. However, the judiciary as a whole seems
to be coming to her defence. On Monday, all the judges of the High Courts and
the Magistrate's Courts gathered at her residence and issued a statement of
support for the Chief Justice.
When she was
sworn in as Chief Justice in 2011, opposition parties that are rallying to her
side had been extremely critical of her and made allegations of corruption
against her husband. However, akin to the moves by the Pakistani opposition
towards Justice Chaudhary, they are becoming increasingly vocal in her support.
2) Similar to
proceedings in Pakistan and in post-Emergency India, the Supreme Court has also
begun hearing a petition challenging the constitutionality of the entire
impeachment process in the Constitution. The Supreme Court has summoned the
entire Parliamentary Select Committee before the court to respond to petitions
filed by civil liberties groups. The Speaker has ruled that these summons need
not be complied with.
3) Commentators
have begun to make arguments on the 'basic structure' of the Sri Lankan
Constitution and held that the principle of judicial review is central to it,
and the courts reserve the right to review constitutionality of any government
action.
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