Centre for Policy Alternatives on 1 November, 2012

Impeachment of the Chief Justice: The Sword of Damocles over Democratic Governance?

Categories: Articles

By Dr. Paikiasothy Saravanamuttu

Accounts, claiming varying degrees of authenticity abound of the impending impeachment of the Chief Justice.  This is not the first time this has been attempted. Denizens of Hulftsdorf within its ranks stopped the UNF government in its tracks from attempting to do this.  A third of the members of parliament are required to sign a motion to this effect, which once entertained by the speaker will go to a select committee. The findings of that committee are reported back to parliament, which votes after a debate on whether to impeach the Chief Justice. All that is required is a simple majority.

There is considerable speculation as to why the Rajapajsha regime would want to even consider this and as to the charges that will be made in the impeachment motion.  The consensus in general public discourse is that this has everything to do with the initial Supreme Court determination on the Divineguma Bill by which it was required to be first submitted to all provincial councils and speculation with regard to the Court’s determination on the Bill thereafter on the validity of the Northern Governor’s consent to the Bill in the absence of an elected council, as well as its substantive provisions.  The argument here is that the regime and its supporters see the Chief Justice as being too disposed towards the Thirteenth Amendment and devolution and accordingly insufficiently protective of the unitary state.  Underpinning all of this, it is mooted, is the desire of the regime to control everything within its reach and neuter the Thirteenth Amendment if not kill it off altogether, so as to deprive the north of an effective, elected council controlled by an opposition political formation – the only one in that event, in the country.   The abolitionists outing calling for the jettisoning of the Thirteenth Amendment, which involved the Defence Secretary stepping egregiously out of line yet again to make pronouncement on government policy, must be seen in this context.  He is after all, if not the most powerful man in the land, one of three or four.  He is also known to be quite blunt and frank.

There is additional speculation and argument about the spouse of the Chief Justice, the investigations into his financial transactions, the behavior of the Secretary to the Judicial Services Commission and even salacious gossip being disseminated about personal relationships.  All in all, very Sri Lankan – a country like no other in which truth will always be stranger than fiction, be it the private realm or the public.  One point needs to be stressed here and that is as to why appointments in particular are being questioned now and taken exception to, when they were made by and concurred with by those leading the charge to impeach.

Another school of thought maintains that along with investigations into the dealings of her spouse, impeachment is being used as a threat, a form of intimidation to ensure that the Court’s determination on the Divineguma Bill and any others thereafter, is favourable to the regime.  Alternatively that her position will become so untenable that she will have to resign. The point here is that if the Lady is not for turning and sticks to her position and to the constitution, stubbornly protecting her independence and their other Lordships too, the regime will surely have to go through with impeaching her or risk serious embarrassment and loss of political clout in the eyes of the public.

Impeaching the Chief Justice on the eve of the UPR of Sri Lanka at the Human Rights Council and with impending revisiting of the Council resolution on Sri Lanka in March 2013, followed by the Commonwealth Heads of Government Meeting (CHOGM) in a year’s time, begs the question of a regime obsessed with control and not giving a damn as to the fall-out.  The latter is considerable, not just in international terms but in terms of the basic tenets of democratic governance, the integrity and independence of institutions in this country pivotal to its sustenance as a functioning democracy.

The personal issues aside, this is what the public needs to focus on and this is what resistance to the populist authoritarianism of the regime needs to galvanize against. The fundamental relationships between the three arms of the state – the executive, legislature and the judiciary are under grave threat. This is not the first time, yet taken in context and as integral to the regime’s systematic erosion of democratic institutions and processes, checks and balances on its exercise of executive power, this time it is especially dangerous.  There really is no effective structure of government or governance now in this country. What we have is a structure of power to consolidate dynastic rule and underpinned by militarization, populist authoritarianism and majoritarian triumphalism.

Let us not forget too that the bona fides of the regime regarding respect of and for the constitution are manifestly suspect.  At the first UPR of Sri Lanka in 2008, the regime voluntarily and this needs to be underlined, voluntarily pledged to implement the Thirteenth and Seventeenth Amendments!   The former has been in effect, subjected to a prolonged process of extra judicial killing and the latter gutted and consigned to history.   Gotabhaya Rajapksha’s Charge of the Hela Brigade assisted by Brevet Colonels Weerawansa and Ranawaka has only, if Keheliya Rambukwella’s statement on the regime’s position is to be believed, been halted for the time being.  Did India have to tell him and his that they were talking out of turn and way out of line?

Apart from a few, seen by the regime and its apparatchik chorus as traitors and LTTE sympathisers, the public at large were unmoved by the dismantling of the Seventeenth Amendment and its unseemly replacement by the Eighteenth.  The slow death of the Thirteenth is very much on the agenda and now the possibility if not the probability of a frontal assault on founding principles of democratic governance – the separation of power and the independence of the judiciary.

It has been argued that the public -at- large is unmoved by constitutional issues or indeed any outside the cost of living that directly impacts their daily lives.  The regime knows this and through its extensive apparatus of propaganda, coercion and intimidation it will have its way.

L’etat, c’est moi – The state, it is I.

It is time to show the regime otherwise and that time is surely now!