The Judiciary Should Take Politics Seriously
By Kalana Senaratne -November 10, 2012
Kalana Senaratne
The clash between President Mahinda Rajapaksa and Chief Justice Shirani Bandaranayake, popularly (and wrongly) perceived as a battle between the executive/legislature and the judiciary, does not provide much hope for the latter. Both parties are presently engaged in a drive to convince the people of their narrative, their case. President Rajapaksa’s publicity campaign, as well as the manner in which some of the charges against CJ Bandaranayake have been framed (with prominence given to matters of financial impropriety) has had an effect among the people. That CJ Bandaranayake has understood this is reflected in the response issued by her through her lawyers, denying these serious charges; implying further that the rest of the charges are so flimsy that the trouble need not be taken to even refute them.
The immediate outcome of this personal rift may not be surprising. 14 ‘impeachable’ charges have been leveled, with a minimum of 1 charge being needed to be proved. 11 Parliamentary members are to decide the case, with 7 of them from the governing coalition (which has already decided that CJ Bandaranayake should be impeached). So the outcome is somewhat clear. Perhaps the only thing that CJ Bandaranayake can do is to transform this impeachment-process into a mission which will, inter alia, expose the government and any shady dealings of its members, the instances when (as claimed) the higher judiciary in particular was intimidated, etc.
However, what is perhaps clear is that the present clash has once again shown the fragmentation of Sri Lankan politics (especially opposition-politics) and the challenges confronting anti-government political resistance within the country.
Divineguma Bill
Initially, numerous reasons were adduced to explain the rationale behind the move to impeach the CJ Bandaranayake. Many critics pointed out that the move was largely prompted by the SC’s initial determination on the Divineguma Bill. Having to consult the Provincial Councils (PC) was considered to be a significant blow to the government.
But placing too much emphasis on this was problematic for a number of reasons. For instance, the initial SC-determination was not a radical or unprecedented one anyway; the SC has, on previous occasions, determined that certain Bills required the approval of the PCs, even the approval of the people at a referendum (as the erstwhile UNP-led government was made to realize in 2003, regarding the two SC determinations on the Land Ownership Bill and the Water Services Reform Bill). In the present case, given its majority in Parliament, the composition of the PCs and the state of the opposition, the government would not have been overly worried by the SC-determination.
A more nuanced argument would therefore be that it was largely the status of the Divineguma Bill vis-à-vis the Northern PC that really concerned the regime. The most recent SC determination spelt out that the Bill needs a 2/3rds majority in Parliament given the absence of the Northern PC. Yet, the response of the government has been to announce that it would move the necessary amendments during the Committee Stage of the Bill, in keeping with the SC-determination. In the final analysis, not much has happened to compel the government to withdraw the Bill. Like the 18th Amendment, the Divineguma Bill seems to have sailed through comfortably; exposing, inter alia, the impact that the judiciary can make within the current constitutional framework, even when it calls for the approval of Bills by a 2/3rds majority in Parliament.
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