Abandoning the Rule of Law in Sri Lanka

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Photo Description: Former Chief Justice Shirani Bandaranayake
Photo Credit:  Vikalpa | Groundviews | CPA

Earlier this month, Sri Lankan president Mahinda Rajapaksa replaced Chief Justice Shirani Bandaranayake with a political ally following a parliamentary impeachment process that was deemed unconstitutional. While the government claimed that Bandaranayake had abused her position for personal gain, her ouster was widely regarded as a Rajapaksa vendetta and yet another blow to judicial independence in the country. In the wake of this showdown between the branches of government, the judiciary has been reduced to little more than an appendage of the ruling party. According to the latest edition of Freedom in the World, Sri Lanka experienced declines in political rights and civil liberties indicators in 2012, adding to a multiyear deterioration. If January is any indication, the coming year promises more of the same.

Bandaranayake is an unlikely symbol of judicial independence. In May 2011, she became the first chief justice appointed by President Rajapaksa following the enactment of the divisive 18th Amendment to the constitution, which abolished the short-lived Constitutional Council and granted the president increased appointment powers over the judiciary and a range of other previously independent state entities. Human rights lawyers opposed Bandaranayake’s nomination, and the U.S. ambassador in Colombo called her a “Rajapaksa loyalist.” Nevertheless, she eventually found herself at the center of a constitutional crisis.

The row began over the controversial Divi Neguma Bill, which proposed the creation of a centralized development authority combining all provincial agencies under Economic Development Minister Basil Rajapaksa, the president’s brother. The legislation would effectively transfer 80 billion rupees ($700 million) in development funds to the minister’s control without any provisions for oversight. The bill also included a “secrecy clause” that could block whistleblowers from reporting corruption. The Supreme Court, led by Bandaranayake, prevented passage of the bill on two separate occasions. In September, it ruled that all of the provincial councils had to approve the legislation, as it concerned issues that were normally handled at the provincial level. The bill successfully cleared the councils in all but one province; since Northern Province lacked an elected council, the appointed governor endorsed the legislation instead. A second legal challenge ensued, and on November 6 the Supreme Court ruled that certain clauses must be approved by a majority in Parliament and a public referendum. Almost immediately, the governing United People’s Freedom Alliance (UPFA) filed a motion for Bandaranayake’s impeachment. Fourteen charges were lodged against her, including failure to disclose income, disregarding the constitution, and harassment.

On November 23, the impeachment charade began in earnest. Requests for a public hearing were denied, and observers were barred. Full disclosure of the charges was refused, no witness list was provided, and cross-examinations were disallowed. Bandaranayake also faced verbal abuse from parliamentary hecklers. She and her legal team walked out on December 6, saying they would take no further part in the process. Bandaranayake was convicted by a parliamentary committee on three counts of misconduct, setting the stage for a vote on her removal by the full UPFA-dominated Parliament. The International Commission of Jurists condemned the entire process as a “relentless campaign” to weaken the judiciary.

Tensions escalated on January 3 when the Supreme Court found the impeachment proceedings to be unconstitutional. The government’s rhetoric then shifted from rescuing the Supreme Court from the menace of Bandaranayake to a direct assault on the judiciary. UPFA lawmakers denounced judicial attempts to “usurp” power from the legislature. State-owned newspapers championed the authority of Parliament, alleged foreign influence on jurists, accused dissenters of harboring separatist sympathies, and stepped up the smear campaign against Bandaranayake herself. On January 11, Parliament passed the impeachment motion, 155 to 49. The chief justice received a presidential letter of termination within 24 hours. Her replacement, Mohan Peiris, is a former attorney general and close Rajapaksa ally.

Bandaranayake quietly stepped aside, fearing for her life and the safety of her family. Opposition leader Sarath Fonseka urged her to join him in the creation of a new political party, but she has not issued a public response. Meanwhile, legal professionals are challenging the legitimacy of Bandaranayake’s successor and have threatened to boycott legal proceedings, potentially freezing the entire court system. Civic, religious, and professional groups have roundly condemned the impeachment process. There is also evidence of a rift within the ruling coalition. A number of normally loyal lawmakers abstained during the impeachment, including the leaders of the Communist Party and the Liberal Party. Internationally, Canada plans to challenge Sri Lanka’s bid to host the Commonwealth Heads of Government Meeting in November.

The crisis could also have economic repercussions. Sri Lanka has experienced robust economic growth since the end of the civil war, aided by dramatic increases in foreign direct investment. Erosion of the rule of law and related political turmoil could easily change investors’ calculations. The Ceylon Chamber of Commerce, aware of the danger, has called for harmony between state organs. Aid from foreign governments may also be in jeopardy. The U.S. State Department has said that the impeachment raises concerns about the Rajapaksa administration’s commitment to democracy. Sri Lanka received $27 million in bilateral assistance from the United States in 2012.

Nevertheless, the Sri Lankan leadership appears to be pressing its advantage. Having effectively confirmed the supremacy of the political branches over both the judiciary and the constitution, some government officials have threatened to regularly summon dissenting judges before Parliament for censure. Meanwhile, the opposition is left with little recourse. Although the judiciary regularly enforced suppressive government actions, it remained one of the only venues for Rajapaksa’s opponents to challenge his hold on power.

It has long been bad politics in Sri Lanka to defy Rajapaksa and his allies. They typically get what they want, and the Divi Neguma Bill is no exception. It was easily passed on January 8. So why would the leadership risk economic and political damage over a bill that was all but assured to become law, one way or another? In an attempt to quickly quash any sign of judicial dissent, the government began a process that snowballed beyond expectations. As the stakes increased, it stubbornly refused to step back. The consequences of the constitutional crisis are still developing, and it could have serious deleterious effects on Sri Lanka’s future. For the time being, however, Sri Lanka has suffered a swift, harsh blow to the rule of law.

* Andrew Rizzardi is a political analyst with a focus on human rights, governance, and corruption. He is currently assisting Freedom House with the forthcoming report, Freedom of the Press 2013.

Analyses and recommendations offered by the authors do not necessarily reflect those of Freedom House.

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