| by Manik De
Silva
( December 9,
2012, Colombo, Sri Lanka Guardian) The die seems to have been irretrievably
cast and it is only a matter of time before Chief Justice Shirani Bandaranayake
will be out of office. Nobody can be happy about the process that has been
employed to deal with whatever act of omission or commission she is alleged to
have been guilty of and the manner employed to determine guilt or otherwise
will be viewed with distaste by all reasonable people. The country’s
credentials as a functioning democracy has been brought to question by these
events and for this all Sri Lanka’s people and not just its rulers will have to
pay a price. There was every possibility of handling this matter with greater
circumspection and minimizing the damage that would necessarily accrue by using
a battering ram technique. But that was not to be. The government was obviously
in a hurry to finish the unpleasant business for reasons that are undoubtedly
practical. When matters such as these drag on, negative consequences are
inevitable. So there was no concession to public opinion or even to voices of
reason, however feeble, from within the government itself. The Executive had
clearly decided which way to go and there was none to stand in his way at least
from the ruling coalition.
 |
| Manik De Silva |
The
Parliamentary Select Committee investigating the Chief Justice, at least in
terms of representation, was presented to the country as a microcosm of the
composition of the legislature, reflecting the break-up between government and
opposition forces in the House itself. Thus the government had seven members to
the opposition’s four and the only saving grace was that the majority did not
decide who from the minority should sit on the committee. Party leaders were
duly consulted as is traditional in these matters and the PSC accordingly appointed
with a lawyer chairman from the government side. There was more than a
sprinkling of legal professionals in the PSC, more from the opposition than the
government, and a great deal of advice and comment that was on tap was barely
taken note of. Given the published reports of what was happening within the
committee, despite the bar on the reporting of proceedings, the CJ seemed to
have had little option but withdraw from proceedings which the state media has
seen as ``fleeing’’ from the PSC.
While it must be
readily admitted that a PSC is not a court, it would be expected that
experienced members within it would ensure that the proceedings continue with
due decorum and with fairness to the person under investigation. A sense of
justice and fair play is what is expected from a body such as a PSC on which an
onerous responsibility has been cast. Now that the report is in, it went to the
Speaker at 9 a.m. yesterday, it will no doubt be debated in the House a month
hence and an address to the President duly presented. Thereafter it is he who
must decide what must follow and we have little doubt that would-be CJs would
already be jostling for office. Hopefully, all the material against the
incumbent, presented in the charges as well as whatever defenses she has to
offer will come up in the public domain so that people can make up their own
minds on whether the action that has been taken, once that happens, is
justified or not. But of course they will be presented with a fait accompli and
there will be very little that they can do about it.
At least for
now, it appears that the CJ had not been given sufficient time to respond to
the charges that have been preferred against her. These were published and her
brief rebuttals are also in the public domain. As is to be expected in these
matters, both sides pulled no punches with the government using the state media
and also mobilizing crowds of protestors to counter what various civic and
other organizations drummed-up in support of the CJ. But unlike in the case of Pakistan
where the sacking of a Chief Justice who stood up to a powerful President led
to massive protests by the legal fraternity eventually forcing a back down,
what happened here was relatively ineffective. Lawyers did protest and the Bar
Association spoke up, but for whatever reason the activism we saw lacked the
punch to force any climb down by the president or his government.
There seems to
be a misconception in some quarters that the conflict is one involving the
supremacy of the legislature versus that of the judiciary. This is far from
reality. The constitution has made abundantly clear that it is the People who
are sovereign. The legislative power of the People has been delegated to
Parliament and the judicial power to the Courts. The only exception, as has
been pointed out while the present controversy swirled around us, is on matters
relating to parliament’s own powers and privileges. We did see an editor once
tried by a previous parliament over a triviality relating to some mixed up
captions, in an exercise that did no credit to that parliament; but subsequent
matters were sent for determination by the courts. The constitution decrees
that this is what must be done if a president is to be impeached with the
Supreme Court required to determine whether there is substance in the charges
preferred. Unfortunately this is not the case where judges of the superior
courts are concerned. Although the draft constitution of President Chandrika
Kumaratunga of 2000 sought to make a correction, that Bill never saw the light
of day. A suggestion by late Speaker Anura Bandaranaike about amending a
weakness in standing orders that came into the fore in this instance was also
not acted upon.
Hopefully, the
present experience will encourage necessary correction of constitutional
provisions as well as those in standing orders sooner rather than later
although none of that will do Shirani Bandaranayake any good. But no
constitution can cover every situation that can arise. That is why it is
imperative that the executive, legislative and judicial branches respect the
separation of powers and cooperate with each other to ensure the smooth
functioning of democratic institutions and the primacy of the People’s
interests at all times. Several bad precedents have been set in the present
instance and it is our hope that these will not get entrenched.
( The Writer,
Editor of the Sunday Island, where this piece was originally appeared)
 The die seems to have been irretrievably cast and it is o...){kind=link}