Update on Sri Lanka Judiciary-Executive clash

Rohit's previous post on this issue in early December drew attention to the brewing crisis around the impeachment of Chief Justice Bandaranayake in Sri Lanka.  Since then, some other developments have occurred on this front, and the purpose of this short post is to highlight them.

On December 15, The Bar Association of Sri Lanka passed a resolution in support of Chief Justice Bandaranayake and asserted that it would not cooperate if a new person was appointed in her stead as Chief Justice by President Rajapakse. (Details here in a report in the Hindu).  On December 19, the Chief Justice moved the Court of Appeal asking for the impeachment proceedings against her to be quashed.  Details of her arguments are available in this story in the Washington Post.

On December 21, in a significant move, the Court of Appeal issued notice to the Speaker of the Parliament, and the members of the Parliamentary Select Committee which conducted the impeachment proceedings against the Chief Justice, and asked them to appear before the Court on January 3, 2013.  It also directed that no further action be taken against the Chief Justice until the court proceedings were completed.

In his analysis that appeared in the Hindu on Dec 22, RK Radhakrishnan argues that this has set the stage for an unprecedented Executive-Judiciary clash in Sri Lanka.  The Speaker of the House of Parliament has reportedly refused to appear before the Court.  For now, however, all players seem to be adopting a low key role.  As the next date of hearing nears, things are sure to heat up.

As Rohit notes in his post, there are precedents from across South Asia for such clashes.  This situation in Sri Lanka might well be decided behind closed doors, but if it continues to play out in the public sphere, it might have significant implications for the contemporary Sri Lankan polity.  What is also striking is that the Sri Lankan legal profession and judiciary has been drawn into adopting a fairly aggressive role against the political executive, at a time when it is particularly powerful.  Given the relatively quiescent role played by these legal actors in Sri Lanka historically (especially when contrasted against their counterparts in India, Pakistan and Bangladesh), this may well turn out to be a landmark event in the history of the Sri Lankan 'legal complex.'

Miscarriage of Chief Justice, Sri Lanka Edition

Earlier this week proceedings were initiated in the Sri Lankan Parliament to impeach the Chief Justice of Sri Lanka, Dr Shirani Bandaranayake. The allegations against Chief Justice Bandaranayake are of personal misconduct and failure to disclose her income and her foreign exchange . However, most media sources widely agree that the impeachment proceedings were triggered by an adverse judgment given by her striking down the Divenguma Bill. The judgement required that the bill had to be enacted with a two thirds majority and needed a referendum for one of its provisions.

The bill would have centralized development funds which were previously devolved to local authorities, and would have granted greater discretionary powers to the Minister of Economic Affairs. Devolution has been a long standing demand of Tamil parties and was brought as part of the peace process. However, ethno-nationalist Sinhala politicians want to nullify even the limited devolution that has been introduced. Basil Rajapakse, the Minister for Economic Affairs, is the brother of the President Mahinda Rajapakse. The Speaker of Parliament, who initiated the impeachment proceedings and heads the Parliamentary Select Committee, is Chamal Rajapakse, another brother of the President.

The first two hearings have begun before the Parliamentary Select Committee. Chief Justice Bandaranayake's request to have the hearings made public have been refused, and her motion to two members of the eleven member committee to recuse themselves on grounds of bias (she had ruled against them or their family members) has been ignored. This is not the first attempt to impeach a Chief Justice in Sri Lanka, governments had made attempts to impeach Chief Justice Neville Samarakoon (1984) and Chief Justice Sarath N.Silva (2001). However, the stakes appear to be much higher in this case.

1) The Chief Justice has emerged as a symbol around whom a large number of groups have rallied, including lawyers, trade unions, Catholic priests and the influential Buddhist monks. The government has been forced to bus in counter protestors to demonstrate against the Chief Justice. The support extended by all levels of judiciary and opposition parties to Chief Justice Bandaranayake is worth noting.

She has been in several ways an unusual appointment. She remains to the best of my knowledge the only academic to have been appointed to a Supreme Court in South Asia, and her lack of judicial background had led to several protests by lawyers and judges at the time of her appointment. However, the judiciary as a whole seems to be coming to her defence. On Monday, all the judges of the High Courts and the Magistrate's Courts gathered at her residence and issued a statement of support for the Chief Justice.

When she was sworn in as Chief Justice in 2011, opposition parties that are rallying to her side had been extremely critical of her and made allegations of corruption against her husband. However, akin to the moves by the Pakistani opposition towards Justice Chaudhary, they are becoming increasingly vocal in her support.

2) Similar to proceedings in Pakistan and in post-Emergency India, the Supreme Court has also begun hearing a petition challenging the constitutionality of the entire impeachment process in the Constitution. The Supreme Court has summoned the entire Parliamentary Select Committee before the court to respond to petitions filed by civil liberties groups. The Speaker has ruled that these summons need not be complied with.

3) Commentators have begun to make arguments on the 'basic structure' of the Sri Lankan Constitution and held that the principle of judicial review is central to it, and the courts reserve the right to review constitutionality of any government action.

Kafila posts on Sri Lankan constitutionalism and Ayodhya

Rohini Hensman has written a thoughtful and detailed post for Kafila which explains both the background context and implications of the recent passing of the 18th amendment to the Constitution of Sri Lanka. Unusually for a blog post, she manages to provide a succinct overview of constitutional developments in the island nation over the past three decades, which helps those of us who are not fully aware of the relevant history to get a sense of the overall context of her argument. A more recent post on Kafila offers Biswajit Roy's preliminary take on the judgments in the Ayodhya case, focusing on Justice Khan's judgment in particular.

Update (Oct 18, 2010): Biswajit Roy's further thoughts on the Ayodhya case, focusing on the judgment of Justice Agarwal in particular, are available here. Somewhat coincidentally, given how the original post was framed, Rohini Hensman has subsequently written a blog post for Kafila on the Ayodhya case which is available here.