13 November 2012, Colombo, Sri Lanka: The Centre for Policy Alternatives (CPA) expresses grave concern over the initiation of impeachment proceedings against Chief Justice Dr. Shirani Bandaranayake. A number of reports in the press reveal that several charges against her have now been placed before Parliament in the form of a Resolution presented to the Speaker. The context within which these proceedings have been instituted, the procedure established by Parliament for impeachment hearings in Standing Order 78A, and the content of a number of charges against the Chief Justice are deeply troubling.

Context

The context and timing of the institution of impeachment proceedings strongly point to a deliberate effort by the government to extinguish any embers of resistance to the executive from the judiciary. In the Town and Country Planning (Amendment) Bill and the Divineguma Bill Determinations, the Supreme Court held that the Bills in question required prior reference to all Provincial Councils before being placed on the Order Paper of Parliament. The Chief Justice presided over the nominated bench in both cases. These judgments halted the government’s attempt to weaken the meagre extent of devolution provided by the Thirteenth Amendment to the Constitution by attempting to pass laws that were in respect of Provincial Council subjects. A brief narration describing the events following the communication of the Court’s decision in respect of the Divineguma Bill is telling.

The Supreme Court’s Determination in respect of Supreme Court (Special Determination) 1 – 3/2012 challenging the Divineguma Bill was communicated to the Speaker on or about the 17^th of September 2012. Thereafter, a statement issued by Mr. Manjula Tillekeratne, Secretary of the Judicial Services Commission – of which the Chief Justice is the Chairman – was published in the Sinhala press on the 19^th of September[1]. This statement alleged that efforts were underway to destroy the independence of the judiciary, and made veiled references to what was later revealed by the President himself to be an effort by him to summon the members of the Commission to a meeting at Temple Trees. The statement was issued in the context of a sustained effort by some commentators on state television and radio to vilify the Chief Justice and the Court for ruling against the government in the Divineguma Determination. Subsequent to the JSC’s first statement, on or around the 28^th of September 2012, Mr. Tillekeratne made a chilling revelation that he believed that “[a] situation has arisen where there is a danger to the security of all of us and our families beginning from the person holding the highest position in the judicial system.[2]” This fear materialised on the 7^th of October, when in a brazen attack in broad daylight, Mr. Tillekeratne sustained serious injuries after being stabbed repeatedly by unidentified assailants while he was inside his parked car on Hotel Road, Mount Lavinia. CPA condemned this attack and drew attention to the intimidation of dissenters and the prevailing climate of impunity in a statement released on the 10^th of October 2012. On the 16^th of October, we drew attention to the appearance of posters in Sinhala the previous day vilifying CPA Executive Director Dr. Paikiasothy Saravanamuttu as one seeking to divide the country, for his opposition to the Divineguma Bill. Meanwhile, the Secretary of the Ministry of Defence and a number of influential members of the government have publicly called for the repeal of the Thirteenth Amendment.

We are convinced therefore, that the institution of impeachment proceedings against the Chief Justice is the regime’s latest – and most dangerous – effort to stifle dissent, destroy the independence of the judiciary and undermine any prospects for the implementation of the minimal guarantees of devolution in the Thirteenth Amendment.

Procedure

CPA is also concerned that the procedure laid down in Standing Order 78A of Parliament for impeachment proceedings are incompatible with the principles of natural justice. Under this procedure, the Speaker refers the allegations in the Resolution containing the allegations to a Select Committee of Parliamentarians, which is tasked with investigation and reporting to Parliament. The process of investigation and decision making in relation to charges of misbehaviour are clearly judicial, or quasi-judicial in nature. Thus, the accepted rules of natural justice should and must apply. However, there is no explicit bar on Members of Parliament who signed the ‘Notice of a Resolution’ functioning in the Select Committee, or voting in Parliament to present an address to the President for removal of the Chief Justice. Moreover, although removal of a Judge can be carried out only or “proved misbehaviour or incapacity,” by placing the investigation process in the hands of Members of Parliament themselves, the Standing Orders open a wide door for partisan decision making, which fundamentally undermines the rule against bias. In other jurisdictions, the right to natural justice in impeachment proceedings is preserved by ensuring the independence of those tasked with inquiring into the alleged charges. In India, for instance, the Judges Inquiry Act of 1968 provides that the Speaker shall constitute a three member committee including a sitting judge of the Supreme Court, a sitting judge of one of the High Courts and a distinguished jurist to investigate allegations during an impeachment proceeding.

We are deeply concerned therefore, that in the prevailing climate of threat to the independence of the judiciary and sweeping executive control over Parliament, the lack of due process rights renders the impeachment process little more than a modern inquisition.

Charges

CPA is also troubled by a number of charges contained in the Resolution now placed before Parliament. Some charges appear to fault the Chief Justice for the substance of judicial decisions penned by her. These charges have a chilling effect on members of the judiciary, and point to an effort to systematically dismantle any remaining independence within judicial ranks. We have observed that one of the charges reported in the press appears to refer to CPA. The charge as reported reads, “Whereas, the Supreme Court special rulings petition No. 02/2012 filed by the institution called Centre for Policy Alternatives to which the Media Publication Section ‘Groundview’ that had published an article of the Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake, while she was a lecturer of the Law Faculty of the University of Colombo prior to becoming a Supreme Court judge, has been heard and a ruling given.” We note in this respect that the case filed by CPA was in fact SC (SD) 3/2012, that CPA came into existence in June 1996, that our online publication Groundviews was only established in 2006 which was ten years after Dr. Bandaranayake took oaths as a Justice of the Supreme Court, and that Groundviews has to date not received nor published a single contribution by Dr. Bandaranayake. While other charges are also of concern, we desist from publicising our comments at this stage.

Conclusion

In conclusion, we note the widespread expressions of consternation from all strata of society in response to the institution of impeachment proceedings. We are heartened by these expressions of concern over the trajectory of governance in Sri Lanka, and urge that all citizens continue to express outrage over the rapid dismantling of the institutions that sustained our struggling democracy. The independence of the judiciary is fundamental to the architecture of any democracy, and unless we unite to resist these latest attempts to extinguish it, the truncated freedoms and rights we still enjoy are in imminent jeopardy.

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The Centre for Policy Alternatives (CPA) was formed in the firm belief that there is an urgent need to strengthen institution- and capacity-building for good governance and conflict transformation in Sri Lanka and that non-partisan civil society groups have an important and constructive contribution to make to this process. The primary role envisaged for the Centre in the field of public policy is a pro-active and interventionary one, aimed at the dissemination and advocacy of policy alternatives for non-violent conflict resolution and democratic governance. Accordingly, the work of the Centre involves a major research component through which the policy alternatives advocated are identified and developed.

16 October 2012, Colombo, Sri Lanka: The Centre for Policy Alternatives (CPA) views with very serious concern the appearance of posters in Sinhala on Monday, 15th October 2012 in the environs of Colombo, the English translation of the text of which states: “Let us save the pro-people Divineguma Act that builds the lives of fifteen lakhs of low income families from the Paikiasothy gang that aids and abets the separation of the country.” Photographs of the poster are attached. The chilling import of the reference to CPA Executive Director, Dr. Paikiasothy Saravanamuttu, requires no emphasis in the current political climate of violence against critics of the government and the culture of impunity for perpetrators. This is the most recent attack against CPA and its Executive Director. It must be unreservedly condemned.

The context of the reference in the poster to the Divineguma Bill, which is currently in the enactment process, and CPA’s legal challenge to its constitutionality, is as follows. When the Bill was placed on the Order Paper of Parliament on 10 August 2012, both CPA and Dr. Saravanamuttu in his capacity as Executive Director, filed petitions challenging the Bill in the Supreme Court, bringing to the Court’s attention a number of substantive and procedural grounds on which the Bill was potentially inconsistent with the Constitution. There are several substantive areas of constitutional concern in what is envisaged in the Bill, including the doctrine of the separation of powers, the possible reversal of certain subjects devolved to Provincial Councils, Parliament’s control over public finance and its general oversight over the executive, and public access to information held by government. We will make no further comment at this stage on these issues as the matter is pending before the Supreme Court.

On the procedural issues, however, the Supreme Court agreed with the averment in our initial petitions that the substance of the Bill impacts on a number of devolved subjects in such a way as to require it to be passed in terms of the special procedure laid down in the Constitution, which involves the consent of the Provincial Councils. Pursuant to this determination by the Supreme Court, the government sent the Bill to the Provincial Councils where consent has been forthcoming, except in the case of the Northern Province, where there is no elected Provincial Council. There is currently a legal challenge by a Member of Parliament for the Jaffna District to the consent provided on behalf of that Province by the Governor. Regardless of the matter being referred to the Supreme Court on the question of the role of the Governor, the Bill was tabled for the second time in Parliament on 9 September 2012. CPA and Dr. Saravanamuttu have challenged the Bill yet again, with the matter to be taken up in the Supreme Court this week.

Aside from these attacks, CPA also wishes to disclose that the military visited CPA on the morning of Monday 15th October, the same day the posters appeared. The military personnel informed CPA security that they in turn had been told by the Postal Department that the CPA address was one that had a connection to the Elections Department, which they were checking. Whether there is some causality between the appearance of the poster and the visit by the military, or whether it is mere coincidence, we are at a loss to understand how the military has a role in the conduct of such inquiries in terms of the law of the land.

Beyond the vilification and incitement of public hatred against an individual, we are concerned that these developments signify deeper changes that seem to be occurring in our post-war political culture. The government seems increasingly to regard not only critique and dissent from civil society, but also any constitutional restraints on its power as unacceptable to its agenda, and its stock response to any form of democratic dissent is to accuse opponents of a lack of patriotism. It seems to regard populism and majoritarianism as the only legitimate elements and forms of democracy, and needless to reiterate, CPA is founded on a set of beliefs, which are directly contrary to such perspectives on democracy.

We believe that forms of electoral democracy that are unrestrained by constitutional controls, checks and balances, the rule of law and the independence of the judiciary, fundamental rights and minority protections, devolution, and a vibrant and sceptical electorate, media and civil society, constitute no democracy at all. The emasculation of these fundamental principles in the purported interests of economic development is not only a false dichotomy, but also serves to corrode the traditions of choice and change we have enjoyed as part of the democratic way of life since 1931.

As the history of many countries which have had the unfortunate experience of populist authoritarianism has shown, the attenuation of legal and political restraints on political power that is exercised, at first instance, in the form of purportedly ‘pro-people’ policies have an alarming tendency to turn anti-people before long, when governments get used to centralisation and an absence of controls. In the light of recent manipulations of the Constitution, the strengthening of the executive at the expense of both Parliament and democracy, the undermining of established arrangements for ensuring good governance, the treatment of political opponents, violence against protestors, activists and journalists, enforced disappearances, attacks on the independence of the judiciary, the militarisation of civic life, and the pervasive culture of impunity, we wish to state categorically that we see a process taking place in Sri Lanka today which is aimed at dismantling surviving liberal democratic institutions and norms, including through the demonisation of critical voices.

These developments are taken lightly at the peril of our democratic future.

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Download images of the poster here and here.

Download PDF of this Press Release in English here, Tamil here and in Sinhala here.