Accountability delayed by Politics, ill-prepared institutions, says Prof. Ratner
2013-01-20
The appointment of Mohan Peiris as Chief Justice is regrettable, though not surprising, in the backdrop of growing authoritarianism and undermining of the county’s Constitution, says Dr. Paikiasothy Saravanamuttu, Executive Director, Centre for Policy Alternatives (CPA) in an interview with Ceylon Today.
Excerpts:
By Dilrukshi Handunnetti
Q: CPA has been critical of the move to impeach Dr. Shirani Bandaranayake and the impeachment process itself. Why has the CPA taken up this cause at a time when there is serious division of opinion on the issue and with no precedents to go by?
A: CPA’s position, as expressed in our public interest litigation and statements, is based on a commitment to uphold the Constitution of the country, democratic governance and the rule of law. This is our mandate and our raison d’être. Our commitment in this regard will not waver, notwithstanding any division of opinion on the issue. It is a commitment to democracy and the rule of law that has led us to take up this issue, in the interest of all our people.
Q: According to the government, the installation of a new chief justice is in order, as is the removal of Dr. Bandaranayake from the post of Chief Justice. On what grounds do you claim of an imminent infringement of rights by the new appointment?
A: As you know, the higher courts of the country have stated otherwise. The Supreme Court, which has the sole authority to interpret the Constitution is determined otherwise. Likewise, a judgment of the Court of Appeal. Rejection of the determination by the Supreme Court and the judgment of the Court of Appeal, constitute in my opinion, a serious threat to the rule of law and opens floodgates to arbitrary and authoritarian rule. It fatally undermines democratic governance.
Q: Is Sri Lanka’s civil society active enough about issues of governance? Are you satisfied with civil society action with regard to the impeachment and the current tussle between the Legislature and the Judiciary?
A: I will always hold that our civil society should be much more active on matters of governance. Civil society should have been more active when the 18th Amendment was introduced. Notwithstanding this, the role of the courageous members of the legal community and the Judiciary should be acknowledged and appreciated – likewise those media organs which spoke out on the issue and gave space to others to voice their opinion.
I fervently hope that in the aftermath of this shoddy impeachment process, civil society will realize that there are challenges – serious challenges – ahead of all of us, and they have to be overcome. Civil society, however defined, cannot shirk its responsibility of contributing, in full and necessary measure, to making this a decent and democratic society.
Q: Has the ouster of Dr. Bandaranayake effectively reinforced parliamentary supremacy above the other two arms of government, or do you subscribe to the view that Parliament is indeed supreme, and is above the Judiciary at all times, according to the recent interpretation?
A: I do not agree that any arm of the government is supreme. It is the Constitution that is supreme. The checks and balances – on and between the arms of government – are of fundamental importance in a system of democratic governance.
The de facto situation at present is one in which the regime holds sway. This is dangerous and a serious threat and challenge to democratic governance.
Q: It has been suggested the impeachment was born out of ill-will due to two specific Supreme Court determinations, namely the Z-score matter and the Divi Neguma Bill. What are your views?
A: I tend to agree with this, especially with regard to the Divi Neguma Bill – the Supreme Court judgment on which was implicitly alluded to in the charges against the Chief Justice in the impeachment motion that mentioned CPA. There were posters against me too. I think the regime wants to denude the 13th Amendment of all powers in addition to its obsession with the grossest consolidation of power in itself.
Q: What is the basis for CPA to petition the Supreme Court challenging the new appointment in the wake of impeaching Dr. Bandaranayake?
A: The primary basis is as mentioned earlier, the supremacy of the Constitution, upholding the rule of law, the determination of the Supreme Court and the judgment of the Court of Appeal of Sri Lanka.
There are other factors too, as stated in the petition, pertaining to the Order Paper of Parliament. The petition has yet to be taken up, and therefore, I do not want to comment further.
Q: It is constitutionally provided for that a Chief Justice may be impeached with the motion being carried by the House with a majority. However, the CPA petition states the absence of a vacancy, which is contrary to the Parliament’s position. Do you mean to say that the removal of Dr. Bandaranayake is illegal, and if so, on what grounds does it become illegal?
A: I think my previous answer suffices. The motion requires a simple majority, according to the Constitution.
Q: One reason for impeaching Dr. Bandaranayake was the possibility of conflict of interest due to pending litigation against her husband over charges of corruption. How would you view the appointment of Mohan Peiris, who is legal advisor to the President and the Cabinet, in that context?
A: Very regrettable, indeed. Not surprising at all, though.
Q: Several petitions were initially filed challenging the new appointment of the new CJ, but were subsequently withdrawn. What could be the possible reason?
A: It is not my place to speculate. I just want to reiterate my earlier point about the challenges ahead and the pivotal importance of overcoming them in the overarching interest of democratic governance.
I do not underestimate the danger in all of this. I am sure people are aware of this and if not, I am sure they will be made aware. Our protection of our rights and duties as citizens, not subjects, was never going to be easy, especially at the point when such protection is critically and crucially necessary.
