SRI LANKA: The impeachment of the Chief Justice is a prelude to greater militarisation

November 1, 2012

After a series of attacks on the judiciary the Mahinda Rajapaksa government is now reported to be engaged in preparing papers for the impeachment of the Chief Justice (CJ). While the accusation against the CJ is not known the determination of the government to impeach her has been highly publicised. The state media have been mobilised to make a concerted attack on the judiciary. 

Meanwhile there is also a bill being discussed which attempts to introduce several provisions which will limit the powers of the magistrates relating to arrest and detention and will increase the powers of the police. 

The reasons for the hurried attempts to suppress the judiciary are not accidental. The project for the replacement of the democratic form of governance with a national security state where the military and the intelligence services will have enormous powers has been going on for some time. Impunity for almost all actions by the executive and the security forces against the freedoms of the individual has been assured now for many years. The allegations of serious abuses of human rights by way of enforced disappearances, other forms of extrajudicial killings, torture and kidnappings are never credibly investigated. 

Now, according to reports there are moves to bring the military more directly into the policing system. It was reported that even the IGP may be replaced by a military officer as a police commissioner. Also the OICs and Divisional Police Chiefs will be replaced by Special Task Force officers. This will amount to a complete shift from the civilian policing which is an essential component of a democracy to military policing. 

Such radical changes would naturally be resisted by an independent judiciary. Therefore there is an urgent need to put in place judges who will be willing to carry out whatever projects the government may propose. The impeachment of the CJ has therefore several purposes. One is to remove the present CJ and replace her with a friend of the executive and the second is to have a chilling effect on all other judges of the Supreme Court and the Court of Appeal. The message is simple: anyone who will abide by the mandate to protect the dignity and the freedom of the individual as against the dictates of the executive is clearly not wanted among the highest judiciary. 

The government, beset with serious economic problems will continue to impose harsher conditions on the population. The government knows that such measures will necessarily bring about retaliation from the trade unions and other organisations representing the ordinary folk. Such protests on the part of the people will be ruthlessly crushed and recourse to justice will be denied. 

The government wants to pass a strong message to the effect that justice is no longer welcome. The courts will be required to approve whatever the government wants and the protection of the individual freedoms will be regarded as a hostile action towards the government. 

Disappearances of persons and the disappearance of the system of justice

Over a long period Sri Lanka has been engaged in the large scale practice of enforced disappearances of persons. In the process justice has always been denied to the victims and their families. The practice of enforced disappearances amounts to the denial of all rights. This practice which has gone on for several decades has had a seriously paralysing influence on the entire system of justice.

Now the stage has been set for the destruction of the independence of judicial institutions altogether. These institutions have a history going back to 1802 when the Sri Lanka's first Supreme Court was instituted. It is this legacy that is now being seriously challenged.

In a recent published book by a senior lawyer, S.L. Gunasekara entitled Lore of the Law and other Memories, the author quotes a prediction by another well known lawyer, D.S. Wijesinghe, President's Council, "We now have a new Parliament and with it democracy vanished. We are now about to get a new Superior Courts Complex and with that justice will vanish". With this attempt to file an impeachment on the incumbent Chief Justice this prophecy may come to a complete realisation. 

While there are usual noises from some quarters protesting the impeachment move, there still does not seem to be a full grasp of the threat that the independence of the judiciary in Sri Lanka is faced with by the Bar Association of Sri Lanka or the legal profession. The end of the independence of the judiciary also means the end of the legal profession as an independent profession. The lawyers lose significant when the possibility of the protection of the dignity and the freedom of the individual is no longer possible. 

It is perhaps the last chance available for everyone including the judiciary itself and the legal profession to fight back from the ultimate threat to the independence of the judiciary and the possibility of the protection of the dignity and the freedom of the individual in Sri Lanka. Many years of cumulative neglect has led to the possibility of the executive being able to come to a position to make a final assault against any challenge by way of demand for justice. Unless the gravity of this threat is fully grasped Sri Lanka will soon become like some countries which no longer have independent institutions to protect individual liberties. 

The people of the north and east are already under military grip. It may not take a long time before the people of the south are also brought under the same grip.