The incessant rains in many parts of the island and the resultant floods, deaths and destruction; the medieval execution of a young housemaid in Saudi Arabia; the assassination of a local level ruling party councillor and the suspicion revolving around a Government Minister in that murder; sand in your sugar purchased from a Government wholesale [...]


The buck stops now with Mr. President


The incessant rains in many parts of the island and the resultant floods, deaths and destruction; the medieval execution of a young housemaid in Saudi Arabia; the assassination of a local level ruling party councillor and the suspicion revolving around a Government Minister in that murder; sand in your sugar purchased from a Government wholesale establishment; and the surreptitious passage of the controversial Divineguma Bill into law have all been overshadowed by the events surrounding the impeachment of the Chief Justice.

The Government flexed its muscle and displayed a show of political strength this week in the impeachment of the Chief Justice, a first in the history of Sri Lanka. Ostensibly, the crime she committed was to preside over a court that gave judgments against the Government. No other crime has been proven.

Compounding the matter is the Court of Appeal order that the Parliamentary Select Committee (PSC) which inquired into purported allegations against the Chief Justice is illegal. What has been precipitated is a constitutional crisis. A new Chief Justice will have to be appointed should the President perform the last rites on the tenure of the incumbent Chief Justice, while the Judiciary has held that the entire process is illegal and unconstitutional.

A relevant point that has been raised is why the Government agreed to abide by the Supreme Court (SC) judgment on the Divineguma Bill (which ordered the Government first to consult all Provincial Councils and then wanted certain clauses passed only by a two-thirds majority – and some with a Referendum as well, if they were to be part of the proposed law) but refused to abide by the SC order on the impeachment inquiry.

Even in the Mother of Parliaments, the House of Commons in Britain, the supremacy of Parliament is not entirely absolute as it was in years gone by. Statutes on human rights, devolution and Europe have seen that supremacy decline. Ages ago, Aristotle said that “the rule of law is better than that by any individual citizen”. A land ruled by law therefore, cannot be dismissed as meaningless verbiage.

In more recent times, the famous British Law Lord Tom Bingham, whom we have often quoted on this issue said, “The hallmark of a regime which flouts the rule of law, alas, is all too familiar; the midnight knock on the door, the sudden disappearance; the show trial………, the list is endless. Better to put up with some choleric judges and greedy lawyers”.

No doubt, there is no unreserved administration of the legal system in any country, Sri Lanka included and judges, lawyers and policemen included. But above all, there must be respect for the law. We would rather live in a country that complies, or in the least, seeks to comply with the Rule of Law and its principles than in a country that does not.

The blame for the seemingly unwarranted triggering of this constitutional crisis between the Judiciary and the Government must clearly be placed at the doorstep of the latter. The indecent hurry to get rid of the Chief Justice, throwing even any pretense of a proper inquiry against her to the winds, was a clumsy exercise that did Parliamentary democracy no favours.

The result has been a wholly undesirable conflict between Parliament and the President on the one side and the judges and lawyers on the other. This has led to an undesirable constitutional uncertainty which will unfold even further in the coming days, and that is a certainty.

In the olden days, senior judicial officers would isolate themselves from other citizens, often from members of their own profession (usually at the Orient Club in Colombo), playing bridge in their free time among themselves. That was the price they paid for holding such exalted office. They were accused of living in a cocoon and being ‘dinosaurs’ out-of-touch with reality either being too hard-nosed and convicting everyone in sight or being so liberal that they would let loose the worst criminal on some technical legal argument.

Yet, the people, and Governments respected what they did and obeyed their orders because the citizen was taught to respect the law. The Constitution was the supreme law and the Supreme Court was entrusted with interpreting it. Times have changed and the Government’s attitude to the courts that give adverse orders, starting from the early 1970s — the way judges were treated, aggravated by the stoning of judges’ houses, and now the crass witch-hunt of the Chief Justice have slowly but surely snowballed into what the country is today. The lawlessness is there for all to see.

The resultant efforts by this Government have forced the Chief Justice to seek refuge in lawyers, in fact, the entire legal fraternity to defend her. How different from the days when judges were respected and kept aloof from the legal fraternity itself for fear that their decision-making would be compromised, or be seen to be compromised. The present Chief Justice will quite correctly argue that this is not any more a personal matter, but one that involves a far bigger issue, the independence of the Judiciary; that there is no reason to be beholden to individuals as she is defending a noble profession.

The Government on the other hand, at loggerheads with the Judiciary, has shown its utter insensitivity, if not contempt for domestic opposition but also a ‘care-less’ approach to international opinion and the image of Sri Lanka as a democracy in the comity of nations.

It believes that the ongoing protests against what is being seen as its tyrannical actions will soon peter out, very much like the FUTA (Federation of University Teachers Association) strike of last year. It believes that daily paid professionals don’t have the stomach for protracted agitation campaigns even if it involves their profession and the country at large.

This will really be a crucial week for the country as the Government and the Judiciary meet at a constitutional crossroad. The legal profession will be put to the test: can they sustain the pressure on a runaway Government that seeks to teach the Judiciary a lesson for daring to challenge it? The difference here is, what if the Supreme Court, which has declared the impeachment process on the incumbent Chief Justice illegal, boycotts the successor.

A frightful example is being set by the Government to local government councils by disregarding appellate court orders of this country. It has made ignoring court orders Government policy. In the coming week, what stands between possible constitutional anarchy and the Rule of Law is the intervention of the President. The buck stops with him.

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