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Asian Tribune is published by World Institute For Asian Studies|Powered by WIAS Vol. 12 No. 852

Chief Justice impeachment; Boomerangs can come back

By Raj Gonsalkorale

Impeaching and dismissing a Chief Justice is very serious business. It is not just a Chief Justice that is being dismissed. It is about supremacy in a battle between two institutions, the Executive and the Judiciary, a battle for supremacy and power between these two institutions.

One, an institution that exercises almost absolute political power, and the other, one which provides some checks and balances to the other.

One might argue that the legislature, the Parliament, through the elected representatives of the people is the supreme body that enacts laws which the Judiciary interprets and applies in dispensing justice, and it is the Parliament, not the Executive Presidency that is the supreme centre of power.

This might be so in theory, but since the enactment of the Executive Presidency by J R Jayewardene, this office has exercised near absolute power especially when the political party of the President has had a majority in the Parliament and been the government of the day.

The President is well advised to consider the fallout from the impeachment motion against the Chief Justice, if some of the charges are not conclusively proven, and if some charges are not seen as impeachable offences. As an astute political leader, it is inconceivable he has not considered this.

The power of the Presidency has been curtailed only when the Opposition had formed a government as happened when the UNP led by Mr. Ranil Wickremasinghe won a general election in 2001 and formed a government with Chandrika Kumaratunga remaining the President.

Currently, the SLFP led coalition (UPFA) enjoys a two thirds majority in the Parliament, and it provides the Executive Presidency the oxygen it needs to exercise near absolute power. Many analysts opine that the UPFA by and large owes their success to the sheer force of the Presidents personality and popularity, and that it is this very same factor that provides him the support from the compliant and docile Parliamentary majority. This, coupled with a weak and ineffective Opposition, has strengthened the hand of the President.

In this environment of adulation, compliance, ineffectiveness (of the Opposition), and near absolute power, any person or institution seen as being “in the way” of the centre of power might be viewed as being an impediment to the economic and social progress planned by the person and his office.

This is nothing new, as the author of the Executive Presidency himself sought to impeach the then Chief Justice Neville Samarakoon because he was seen to be obstructionist to the political leadership and direction of J R Jayewardene. A public spat was avoided by the resignation of Mr. Samarakoon, while the power of the Presidency was reaffirmed perhaps to the detriment of the independence of the judiciary.

The Executive President, whoever he/she might be, is human and will make mistakes any human being will make. There will be errors of judgment, misplaced strategies and tactical shortcomings. This is where checks and balances come in to make sure such situations are arrested before they can result in harmful and irreversible damage not just to the long term future of the country, but to the person who holds the Presidency.

The move to impeach the Chief Justice needs to be seen in this context. The parliament is within its right to institute impeachment proceedings, and there is no constitutional impediment to do so. The issue is whether the parts or the sum of all parts of the foundation of the country is more important for the future of Sri Lanka.

An impeachment based on charges that are not conclusively proven beyond any reasonable doubt, and an impeachment based on offences that may have been known to authorities even before the appointment of the Chief Justice, could leave the Presidency damaged as much as an impeached Chief Justice. Worst of all it will be damaging to the role and responsibilities of individual institutions as their credibility will be called into question. The sum of all parts is therefore more important to the country than the individual parts as the country is, and must be founded on the credibility of all its key constituent parts.

The increasingly public spat between the two power centres does not do any good for the future of both institutions, and therefore to the foundation of the country. Rightly or otherwise, many analysts have expressed the opinion that the impeachment is a vendetta against the Chief Justice for not being a compliant party to the government’s wish to have the Divineguma bill passed in Parliament.

The government denies this, although they have expressed an opinion that the Supreme Court decision requiring the bill to be passed by all Provincial Councils has called into question the unity of the country and the role of the central government and even unintentionally helped those who still pursue a separatist agenda.

At the heart of all this is the 13th Amendment which devolves power to provinces, and it appears the Supreme Court decision on the Divineguma Bill reinforces the spirit of the 13th Amendment, if not its letter.

At this point, it needs to be noted by supporters as well as the critics of the President that the 13th Amendment was introduced almost forcefully on Sri Lanka by the Indian government in 1987 as a means to satisfy the separatist intentions of the LTTE, and it was not debated and discussed by the people of Sri Lanka at any stage before being made the law of the land.

Ironically, the LTTE opposed the very same instrument that was introduced to placate them as being an inadequate piece of legislation.

So, irrespective of the current debate on the impeachment proceedings against the Chief Justice, a debate and discussion on the 13th Amendment should be well within the rights of all Sri Lankans, including the Tamil people of the country.

Some constituent parties of the UPFA have openly called for the abolition of the 13th Amendment, and the President, at his budget speech, indicated the need for effective devolution. As reported in the Colombo Page, quote President Mahinda Rajapaksa has said that a change in the prevailing Provincial Council system is necessary to make devolution more meaningful to the people. Delivering his 2013 budget speech in the parliament Thursday, the President has noted that devolution should not be a political reform that will lead the country to separation but a mechanism that would unify the country. "Instead it should be a one that unifies all of us," the President noted, unquote.

Signs are that the 13th Amendment will be further amended with 13A or 13 Plus, and the overriding authority of the central government will be re-established within a structure of devolution. As alleged by some, if indeed the Supreme court position on the Divineguma bill, based on the 13th Amendment, was indeed the reason that precipitated the impeachment proceedings against the Chief Justice, it is a great pity as the Supreme Court would have only been interpreting the law of the land in delivering their judgment.

The task of the government then would have been to make sure the law of the land was amended appropriately before the original Divineguma Bill was presented in Parliament, and not to punish the Judiciary for doing their job, if indeed this is the reason to punish the Chief Justice.

Those who are committing offences and breaking the law of the land must be punished irrespective of the positions they hold. However one must consider whether we are in a sea of Lotuses surrounded by a sprinkling of mud or the other way about when picking offenders for punishment.

An uncorroborated view seems to prevail in Sri Lanka that there is a lot of mud, and very few lotuses.

- Asian Tribune -

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