The stalemate or confusion continues at Hulftsdorp, the citadel of the Courts of Justice of the island republic of Sri Lanka. Journalists are wondering how to describe Dr. Shirani Bandaranayake, who says she remains the legally appointed Chief Justice and Mohan Peiris, who has also been appointed by the President. Despite the veneer of normalcy [...]


Regime change at Hulftsdorp


The stalemate or confusion continues at Hulftsdorp, the citadel of the Courts of Justice of the island republic of Sri Lanka. Journalists are wondering how to describe Dr. Shirani Bandaranayake, who says she remains the legally appointed Chief Justice and Mohan Peiris, who has also been appointed by the President. Despite the veneer of normalcy in the country’s Supreme Court, an uneasy undercurrent prevails.

The Government used all its horses and all its men to get the newly appointed His Lordship (CJ 44) to Hulftsdorp Hill, and simultaneously obstructed Her Ladyship (CJ 43) from entering the Superior Courts complex on Tuesday. Our Political Editor says more than 600 police officers were deployed to ensure this happened. Not since the days when the Kalawana electorate had two Members of Parliament sharing one seat in the 1970s has this contradiction arisen. Which one then is the rogue Chief Justice?

It was a bloodless coup. There is now a regime change at Hulftsdorp. It may be illegal, and unconstitutional, but it is now a fait accompli. The week passed without CJ 44 sitting on the Bench. Instead, he tried to soften the Appellate Court Justices with invitations for tea, milk rice and small talk. A ceremonial sitting is being scheduled while his robes are probably still being stitched. The Bar Association says it will boycott that ceremony, but not the hearings of a re-constituted Supreme Court under a new chief. There is, no doubt, a lacuna in its stance. Lacunas, or loopholes, are after all its bread and butter.

As the Government would surely have predicted, the legal profession would succumb to its raw muscle, sooner if not later, however flawed the impeachment of Chief Justice 43 may have been — flawed and brutish. , (meaning pull towards the advantageous side,) is after all an age-old local maxim to describe the tendencies of most people.

Since Tuesday, the queues to welcome CJ 44 got longer and longer, while CJ 43 languished in the wilderness. To hell with those high falutin’ principles about the Rule of Law and the Independence of the Judiciary.

The real test, however, is yet to come. The Supreme Court has a determination to its name. So too does the Court of Appeal. Together, they held that the Parliamentary Select Committee (PSC) which inquired into allegations against Chief Justice 43 was flawed and illegal; from which flows the fact that the impeachment of CJ 43 is illegal and, therefore, the appointment of CJ 44 is illegal.

It is one thing for Parliament and the Government to ignore a Supreme Court determination, but what of that Court itself ignoring one of its own orders? Only a fuller Bench can overturn such an order, and such a bench will have to do so if Court orders are not to be the laughing stock and the appointment slate of CJ 44 is to be clean. It is not only a matter of legality, but one that is justifiable.

As we have said all along, the Government gave a clumsy account of itself in impeaching CJ 43. Even at the last stages before the vote in Parliament, it was pointed out that the Motion before the House was an outdated and wrong one it was putting to vote. When it was pointed out, it was held that it “appeared” to be correct.

The entire exercise of fast forwarding the sacking of CJ 43, irrespective of procedures, and total disregard for the law of the land and social niceties, while flexing the state’s muscle displays a dangerous and continuing trend. This trend has been chronicled in the media, and some of the opposition to it has even spilled on to the streets.

This trend is one towards authoritarianism, and one might go as far as to ask if the seeds of autocracy have not just been sown, but are beginning to flower. Any challenge to the authorities is dealt with, with the speed of greased lightning, and a heavy hand. Criminal offences committed by those in their favour on the other hand, are swept under the carpet. Loyalty to the Government must be paramount, absolute and unwavering.

Is this country then taking a page out of Germany in the 1930s? It was a time when the Chancellor went to the extent of getting every soldier in the national Army to take an oath not only to defend the country, but swear allegiance personally to the Fuhrer himself. Those who disobeyed were executed, or beaten and thrown into drains by private armies while the uniformed gentry watched from afar. The intelligentsia, the academics, the cultured people backed their ‘saviour’ in whatever he did, right and wrong on the basis that he restored national pride and united the country – and the rest is history.

The duty of any Government is, no doubt, to govern. But governance in modern times must be according to best practices. It is difficult to blame Saudi Arabia for adopting barbaric medieval “domestic procedures” to behead a 24-year-old Sri Lankan housemaid, when we practise flawed “domestic procedures” ourselves to oust a Chief Justice.
This Government is particularly vulnerable to the machinations of Western powers – and this botched impeachment process has only given them further ammunition. Not that sovereign governments must be dictated to by duplicitous homilies about human rights and good governance. No nation will put Saudi Arabia on the rack for the continuous practice of beheading people in the kingdom, but the administration here is only too aware that it is on a ‘suspended sentence’ before the UN Human Rights Council (UNHRC) and a CHOGM (Commonwealth Heads of Government Meeting) is to be hosted here later this year. Noises are already being made in the corridors of power in these hostile nations to bring the impeachment motion before the Bar of the UNHRC and CHOGM.

It may well serve the Government’s purpose to say that the anti-impeachment lobby is a ‘foreign conspiracy’. Yet, is the Government under the illusion that has safely ensconced a new Chief Justice in office, over the din and the hullabaloo and that the dust will settle soon?

The Rule of Law, the Independence of the Judiciary and the respect for the administration of justice have taken a battering over the last three months since the impeachment motion was signed by Government MPs. In the process, the citizenry has begun questioning the validity of court orders that were breached brazenly and contemptuously by lawmakers and those who ought to have known better. The conduct of judges, once hallowed territory, was discussed in the public marketplace. The Judiciary was emasculated and its spine broken. The last bastion of hope of the citizen has fallen by the wayside.

It was an unpleasant chapter in the annals of this country’s contemporary history, to put it mildly.

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