Sri Lanka: A tale of two chief justices

Colombo, Sri Lanka – The question of who is Sri Lanka’s chief justice depends on whom you talk to.
 
Sri Lankan President Mahinda Rajapaksa has sworn in one of his advisers, Mohan Peiris, as the country’s new chief justice. Peiris is a former attorney general who has worked closely with the government in recent years.
 
However, the judge he replaced, Shirani Bandaranayake, says she still is “the duly appointed legitimate chief justice”. In a process declared unconstitutional and illegal by the country’s highest court, Justice Bandaranayake was removed by the government for financial misconduct, bias and abuse of power – all of which she has denied.
 
Critics say the impeachment is a witch hunt to punish Bandaranayake for ruling against a key government bill which centralises development work under one of the president’s brothers.
 
Presidential spokesman Mohan Samaranayake dismissed the claim, saying: “The impeachment process against the former chief justice had nothing to do with the Divi Neguma bill. It was a result of a motion moved by 117 members of parliament in accordance with the constitutional provisions accusing Shirani Bandaranayake of serious misconduct on 14 accounts.”
 
The attempts to interfere with the judiciary have raised concern.
 
“If one judge is removed in that way, the rest of the judges will have to work with a fear psychosis,” said lawyer and activist JC Weliamuna. “They do not know what kind of interference [there will be] in the future. In such a situation you cannot expect an independent judiciary.”
 
Controversial process

Government parliamentarians listed 14 charges in an impeachment motion handed over to the speaker in November 2012. With lightning speed, a parliamentary select committee – reflecting the political balance in parliament – found her guilty.

“It is not only the office of the chief justice, but also the very independence of the judiciary, that has been usurped. The very tenor of rule of law, natural justice and judicial abeyance has not only been ousted but brutally mutilated.” – Shirani Bandaranayake

Bandaranayake’s lawyers cried foul play. They said their client had not been given enough time to respond to the charges, as she was not allowed to cross examine witnesses and denied the basic right to defend herself.
 
In a statement to the media, Bandaranayake said she had been “unjustly persecuted, vilified and condemned. I have suffered because I stood for an independent judiciary and withstood the pressures.”
 
The government pressed on regardless – and the Select Committee delivered a guilty verdict despite Shirani Bandaranayake and the opposition representatives walking out of the proceedings.

Parliament rubber-stamped the impeachment motion with the ruling alliance using its two-thirds majority in the house.

Samaranayake defended the Chief Justice’s removal.  
 
“The impeachment motion against the former chief justice was well within the constitutional provisions and so it was legal,” he told Al Jazeera. “In Sri Lanka, it is the parliament which enjoys the power to deal with officials holding very high positions who are accused of misconduct.”
 
With her removal signed by President Rajapaksa, the government was quick to appoint a successor.
 
Mohan Peiris moved into his new office amid a siege of the court complex, surrounded by hundreds of police and special forces.
 
Shirani Bandaranayake was not allowed to enter the complex. Instead, court staff received orders to pack up her office to make way for her successor.

Despite concerns among sections of the urban upper and middle class population regarding Rajapaska’s tightening grip on power, the president still enjoys the support of the masses, say analysts.
 
Judiciary versus legislature

The case has seen battle lines drawn between two pillars of Sri Lanka’s democracy: the legislature and the judiciary.
 
Sri Lanka’s Supreme Court has the sole right to interpret the constitution, and in doing so found the impeachment to be illegal.
 
The ruling party, meanwhile, declared that parliament was sovereign and not bound to follow the courts. Speaker Chamal Rajapaksa – a presidential sibling – explained in a special ruling that “notices issued on me, as speaker of parliament and on the members of the select committee appointed by me, have no effect whatever”.
 
A beleaguered Bandaranayake, who fought heavy pressure to step down said: “It is not only the office of the chief justice, but also the very independence of the judiciary, that has been usurped. The very tenor of rule of law, natural justice and judicial abeyance has not only been ousted but brutally mutilated.”
 
The legal community has also been highly critical of the impeachment process.
 
“If you want to deal with a judge, you deal with it in a manner acceptable to the constitution of the country,” Weliamuna told Al Jazeera.

“Mahinda Rajapaksa and those around him seem totally drunk with power, and it doesn’t bode well for the country.” – SL Gunasekara, senior lawyer

Senior lawyer SL Gunasekera, who has been a staunch supporter of the government in recent years, is dismayed at the recent developments. “There is a general malaise throughout the country – a craze for power. This craving for power is the be all and end all of life,” he said.

The last high profile figure who fell foul of the regime was Lt General Sarath Fonseka, the former army chief. He was stripped of his rank, pension and sentenced to prison, following his decision to take on President Rajapaksa in his re-election bid.

“Now Mahinda Rajapaksa and those around him seem totally drunk with power, and it doesn’t bode well for the country,” said Gunasekara.

Rajapaksa and his brothers, who head the parliament and control defence, among other important positions, are a formidable force.

Critics say they use a process of “buy, bully or break” to deal with friends and opponents, helping them to emerge unopposed.

Government prevails

The impeachment has drawn international condemnation with the International Commission of Jurists (ICJ), saying Peiris’ appointment raised serious concerns about the future of the rule of law and accountability in the country.
 
“ICJ condemns this appointment as a further assault on the independence of the judiciary and calls on the Sri Lankan government to reinstate Chief Justice Shirani Bandaranayake. If there are grounds for questioning the chief justice’s actions, they should be pursued following due process and a proper impeachment process.”

But despite the protests and demonstrations, the government has had its way, and a man who was heavily involved in the campaign to defend the Sri Lankan government now heads the judiciary.
 
Superior court judges appear to have accepted the new appointment, meeting to wish him on his first day at the court complex.
 
“The system seems to have accepted it – there is no defiance,” said one senior lawyer who did not wish to be named.
 
“In a country where there are strong-arm tactics – this is what happens.”