The Sunday Leader

Politics: The Art Of The Possible ?

The motion to impeach the Chief Justice was handed to the Speaker of Parliament on Thursday. The decision to impeach Chief Justice Dr. Shirani Bandaranayake by the government that appointed her would have raised many questions among the citizens because the reasons had not been clearly spelt out till the weekend approached. Relations between the Executive, Legislature and Judiciary has hit a sad low although they did seem to be quite cordial till very recent times
Shirani Bandaranayake is not from a traditional legal family which most lawyers and judges are proud of.  She is from the provinces, her parents, were school principals. Having topped her batch at the final examination in the LLB from the University of Colombo she was awarded a scholarship to proceed to the London University where she obtained a PhD in law. On her return she functioned as an academic under the tutelage of Prof. G. L. Peiris and rose to the position of Dean of the Faculty of Law.
In 2011, when G.L. Peiris was the Minister of Justice in the Cabinet of Chandrika Kumaratunga, she was appointed a Judge of the Supreme Court and it is no secret that her former Professor had been behind her appointment. Strong protests resulted from the legal community at that time – both judges and lawyers – on this unprecedented appointment. The fact that she was the first woman Judge of the Supreme Court did not register among the black-coated fraternity on Hulftsdorp Hill. She had never been a judicial officer at any level and not practiced as a lawyer. This was considered a sacrilege by the tradition-bound legal community who saw her as an unbeliever inside the temple of justice. Nonetheless, Bandaranayake carried on and succeeded the former Chief Justice on his retirement. She was sworn in by President Rajapaksa in May 2011.
The Supreme Court, during her tenure as Chief Justice, had approved many controversial Bills referred to it, as being consistent with provisions of the Constitution.
The Expropriation of Private Property Bill and the 18th Amendment which not only removed the constitutional bar on the President contesting for more than two terms, while giving the President wide powers in the appointment of officials to key positions and even the recognition of military tribunals as a part of
Sri Lanka’s judicial system, were some of the Bills given the green light by the Supreme Cour
These Bills were opposed by organizations for the defense of civic rights. Critics of such legislation held that they were aimed at centralizing power. The only Bill referred back to Parliament by the Supreme Court was the Divi Neguma Bill since it was held that certain provisions in the Bill affected the powers vested with the Provincial Councils and hence needed the approval of all Provincial Councils. Although approval by the Provincial Councils was no problem for the government since they command the majority in them, the Northern Provincial Council is non-existent and hence approval by it was not possible. No election had been held for this Council by the government. In the face of the Supreme Court decision the attempted circumvention was to have the Governor appointed by the President to approve the Bill.
The Supreme Court would indeed need vast imaginative powers to equate the consent of an elected Council to that of an appointed official and it appeared that the verdict which the ruling party wanted was not coming their way.
The verdict was scheduled to be released on the Divi Neguma Bill on Thursday but the times did not seem propitious for this verdict to be issued. By Thursday last week it seemed an eyeball–to-eyeball confrontation was on
the cards but it need not have been. Politics is said to be the art of the possible and President Mahinda Rajapaksa who has shown himself to be the master of this art could surely work out a settlement?
The souring of relations between the Judiciary and the Executive has gone beyond the Divi Neguma Bill. Allegations were made in public against the Secretary to the Judicial Service Commission and he counter-alleged that the Executive was interfering with the Judiciary. He was then attacked by unidentified persons while being in his car at Mt. Lavinia.
Anonymous documents too have been circulated and the standards of public life have been brought down to questionable levels.
The other issue was the appointment of the Chief Justice’s husband to a post in a public corporation and also a public bank. Had the appointment been irregular then those responsible for the appointment should be held responsible unless the Chief Justice had used her position to fix the appointment. Her husband was taken to court by the Bribery Commissioner on a charge of bribery last week. But this issue has to be separated from the judicial functions of the Chief Justice. Of course the matter should be fully investigated but not at a mud-slinging trial during an impeachment. The ruling party with the President as its head has the necessary resources to impeach the Chief Justice with its two-thirds majority in Parliament, but what would it gain by this exercise? The Bill in question can be amended and presented in line with the wishes of the people. The incident can have the undesired effect of enhancing the belief in accusations that the Rajapaksa government is riding a political juggernaut over the rights of the people or make it appear that there is very little room for dissent.

3 Comments for “Politics: The Art Of The Possible ?”

  1. R.M.B Senanayake

    Well said Sir. Let us hope the CJ will be accorded the same rights of natural justice like any ordinary citizen. The Chairman of the Select Committee should be a lawyer. The judicial power in UK was all along exercised by the Upper House whcih ahd many lawyers and retired judges. Let us not give room to the International Community to say that it was a kangaroo court where the judge and the prosecutor are the same . To avoid such charges let there be equal representation forr both government and opposition since the Select Committee with the Chairman drawn from the opposition. justice must not only be done but also see to be done. Let us follow the UN Declaration on the independence of the judiciary a concept drawn from the Bible and derived from the time of Moses. It states that “Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals. In accordance with the Universal Declaration of Human Rights, members of the judiciary are like other citizens entitled to freedom of expression, belief, association and assembly; provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary”

  2. billy

    Living in Sri Lanka under this cloud is frightening to say the least. The government can fix anything, the Police can fix anything so too can powerful politicians. Therefore unless you are prepared to be a pussy and do as you are told and not get in the least controversial, one may as well lie and get political asylum, or sail on a boat to Australia or Canada or top yourself. The Rajapaksas are hell bent on making this their Kingdom. Why not just do away with the parliament and before that get parliament to noiminate Mahinda as King in perpetuity with succession assured to the family.

  3. Salmans Butt

    And as for fortune, and as for fame
    she never invited them in
    Though it seemed to the world they were all she desired
    They were illusions
    They were not the solutions they promised to be
    The answer was here all the time
    She was thrust into a position of power overnight
    Greed overtook her and she abused her powers
    Overnight.
    Now, its too late and only God can Save The Queen.
    So, dont cry for her Sri Lanka.

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