Impeachment Of The First Woman CJ And Beginning Of The Spring In Sri Lanka?
Photo courtesy Dawn, by AFP
“Natural justice is a pledge of reciprocal benefit, to prevent one man from harming or being harmed by another.” Epicurus
“Natural justice is a pledge of reciprocal benefit, to prevent one man from harming or being harmed by another.” Epicurus
The iniquitous ex parte guilty verdict of Sri Lanka’s first female chief justice—which according to the Parliamentarian Vijitha Herath is an order from above—is not primarily about her alleged misconduct. Rather, it is about the Sri Lankan justice system’s struggle to maintain its ability to deliver natural justice independently and against the constraints of country’s Constitution, which has been evolving since British Colonial period, and also against the legislature which uses any means necessary to subordinate the Judiciary to its own particular interests, thereby denying the scope within which the Judiciary can deliver natural justice.
Impeachment is not a random blunder, but a survival strategy (a structural necessity) of a regime that derives its legitimacy and security from the forces of capitalism, ethno nationalism, executive presidency, militarism and nepotism, all of which are interconnected and some of which derive their legitimacy from (or unintended offsprings of) the Constitution. Relaxing any of these, forces, means collapse of the others and begs significant constitutional changes. To maintain the status quo, the State has effectively asserted itself as the interpreter of the Constitution. It has appropriated the functions of the judiciary, and consequently, it has done away with one of the few remaining institutions that safeguards the country’s democracy and prevents a slide into despotism and lawlessness.
The protests against the impeachment are evidence that concerned people around the country, including some intellectuals who are ardent supporters of the state, are overcoming the ‘culture of fear’ and demanding that natural justice be upheld. Perhaps, we are witnessing the end of the long winter of discontent and a beginning of spring in Sri Lanka. Any compromise with the government — other than annulling the Parliamentary Select Committee report, holding the State accountable for its misconduct and allowing the courts to determine the best course of actions for the allegations against the CJ — would miss this historic opportunity to restore democracy and would provide further legitimacy to the very forces that brought the crisis.
This three-part series takes a broad look at the tensions between the judiciary and the legislature to make the argument that at this moment in Sri Lanka, protecting the independence of the judiciary is of utmost importance because the tyranny of the legislature is a greater obstacle to natural justice than the alleged misconduct of the CJ. Part I will draw on the findings of numerous legal scholars to outline typical methods used to interpret the Constitution while defending the argument that judges are better suited than elected officials for this task. Part II will be an account of how the Constitution and its reforms since the British colonial period limits the ability of the judiciary to deliver natural justice, particularly because of the Constitution’s affinity with capitalism, ethnoreligous nationalism, executive presidency, and national security. Part III will outline a more concrete account of why the government lacks the legal and moral authority to impeach and that, therefore, the Parliamentary Select Committee Report must be declared a mistrial and those responsible for it must be held accountable.
Part I: Judges, not the politicians, should interpret the constitution.
