April-June 2013 - Institute of Peace and Conflict Studies

April-June 12
Commentary
Sri Lanka: Implications of Silencing the Judiciary
M Mayilvaganan
Assistant Professor, National Institute of Advanced Studies, Bangalore
The impeachment of Chief Justice Shirani Bandaranayake in Sri
Lanka has drawn significant international attention to President
Rajapaksa's government. Concerns about his model of
functioning and its implications on the basic principles of
democracy have been raised.
Justice Bandaranayake's impeachment and her post subsequently
being filled by the government's senior legal adviser Mohan
Peiris, reflects Rajapaksa's post-war strategy: “My way or the
highway”. After dislodging the Tigers and neutralising former
Army Chief Sarath Fonseka, as well as eventually silencing the
most powerful institution – the army, the President conclusively
proved his absolute dominance by impeaching the Chief Justice of
the Supreme Court.
Establishing Supremacy Over Democratic Institutions:
Rajapaksa Style
There were no surprises when Rajapaksa ratified the Parliament's
impeachment motion, moved by the SLFP-UPFA combine,
instead of referring to the expert committee. Just as was the case
when he pushed for the proposed legislation of the Divi Neguma
Bill that would reportedly increase the resources of the Colombo
government, particularly the President's brother Basil Rajapaksa's
powerful economic development ministry. This deed seems the
latest proverbial nail on the potential challenger – the judiciary –
to his “autocratic” reign. Notably, the judiciary was the only
institution that was, perhaps, out of Rajapaksa's supremacy up
until now. It also sends a clear message to the rest that dissent is
not taken lightly and that nothing perceived as a threat or act
leading to the erosion of Rajapaksa's power will be tolerated.
Indeed, it is a well-calculated move. Rajapaksa knows that the
legal fraternity is fragile and the opposition is weak and divided, as
opposed to his own popularity in south Sri Lanka. Hence he was
assured that the impeachment of the Chief Justice would not
unleash a reaction on the lines of what was witnessed in Pakistan
when its Chief Justice Iftikhar Chaudhry was sacked.
Impeachment and International Criticism
The impeachment process against Justice Bandaranayake,
however, drew intense criticism from the local and international
media, the International Commission of Jurists (ICJ) and the global
community. The media has described the government's act as
“frightening”, “predetermined”, “unfair”, and an “illegal attempt
to ensure a servile judiciary”. The ICJ, in particular, criticized the Sri
Lankan government by stating it did not 'adhere to fundamental
principles of due process and fair trial'. The US State Department
alleged that the impeachment raised 'serious questions about the
separation of powers in Sri Lanka, which is a fundamental tenet of
a healthy democracy'. Canadian Prime Minister Stephen Harper
openly stated that the impeachment process appeared to him 'to
be highly politicized and lacking transparency and respect for the
guarantees of due process and fair trial'.
Critics have also warned that the sacking of the Chief Justice could
trigger a constitutional crisis and may damage what remains of Sri
Lanka's democracy.
The Probability and Nature of Implications
Is this a game changer in Sri Lankan politics? Considering the
present situation in Sri Lanka, where President Rajapaksa enjoys
unchallenged public popularity having learnt to manage the “bigpowers”
tactically, the possible consequences of the
impeachment appear few.
Amongst the probable implications for Rajapaksa's government,
the foremost may be disunity with the judiciary in due course, as
they may need to heed to the regime or else face the music,
perhaps even contributing to institutional putrefaction. On the
contrary, the legal fraternity, particularly the senior judges minus
the newly appointed Chief Justice, may also take a radical position
on certain government policies when they come up for legal
review. This might include the case of the impeachment of the
Chief Justice, which may heighten the clash between the
executive and the judiciary.
Second, the international community may scale up their voices
against Sri Lanka on the grounds of human rights violations etc.,
such as at the U.N. Human Rights Council when Sri Lanka's
compliance with a US-sponsored resolution is considered again in
March 2013.
Third, with the next Commonwealth Heads of Government
Meeting (CHOGM) scheduled for October 2013 in Sri Lanka,
leaders of commonwealth nations may refuse to attend it or may
seek a change in venue; Canada's blunt response to the
impeachment being a case in point.
Finally, the undermining of an independent judiciary and
democracy with the sacking of the Chief Justice may perhaps have
an impact on foreign investment in Sri Lanka. Concerns being
raised by the US, the UK, Canada, the European Union, and the
United Nations on these issues significantly flag the possibility.
International scrutiny and embargos may send tough messages to
President Rajapaksa who is keen to further Sri Lanka's image
overseas to attract more investment, and to undo the controversy
surrounding alleged war crimes. However, in the absence of
sanctions being implemented on Sri Lanka, and no warnings
being issued by the international community to its citizens on
travelling to the island nation; as also with the continued support
of the Chinese, the repercussions may not hurt the government
although they may embarrass the Rajapaksas. Interestingly, the
Rajapaksa had projected all their adversaries - from foreign
powers to Gen. Fonseka and now Justice Bandaranayake - as the
opponents of the State or the State's interests. Until there is a
major disillusion among the Sinhalese either on the issue of
increasing unemployment or price inflation, the Rajapaksas
perhaps would enjoy absolute power and the country may not
witness any significant game changing moment.