The Nation Is Now At Stake

By N. Sathiya Moorthy, The Sunday Leader, January 13, 2013

What the ‘Geneva vote’ in March last could not achieve, it now seems, the Parliament vote on Chief Justice Shirani Bandaranayake’s impeachment is capable of attaining. It was argued then that the Geneva vote aimed at destabilising not just the incumbent government but Sri Lanka as a nation. Despite the vote, the Geneva process did not achieve that goal. Today, the impeachment vote can do it, without instigation from outside and exclusively from within.

With 117 MPs from the ruling combine signing the impeachment motion, the dye had been cast. There was no doubt which way would the PSC go, or which way would the vote in Parliament. Yet, the decision of President Mahinda Rajapaksa to seek advice from four individuals on the voted motion, and the declaration of the Government that the President could take his time deciding on the impeachment order that he would have to pass, gives some hope that the nation was still not at the brink – though not far away from it, either.

It is no more about the individual in Chief Justice Shirani Bandaranayake. It is no more about the prestige of the Sri Lankan State, represented by the incumbent Government. They do matter is avoiding the brink, but at stake is the Sri Lankan nation. It is not just the State, Government or those representing the latter – President Rajapaksa, Speaker Chamal Rajapaksa, and Chief Justice Bandaranayake, and not necessarily in that order.

The question is this: Who would take the nation to the brink from here? Or, who would blink first, and stop it on the downslide from here? For the former not to happen, the latter should happen. It is here pronouncements like the President has enough time at his disposal to decide on the impeachment makes relevant reading. Sri Lanka needs a cooling-off period before the parties concerned could sit back, think and act wisely. The civil society and the media have a role, of maintaining ‘objective silence’, just as those in Government having to offer ‘objective’ and not ‘subjective’ advice. Between them, they all seem to have done enough damage to the scheme and system than was thought possible.

Chicken-and-Egg Situation

Despite the Parliament vote, and despite any presidential orders flowing from it, the impeachment, if it came to that, could be contested in the court. Having ruled on the legality of the issue, the Supreme Court in this case has little choice but to rule the impeachment, bad in law. It goes beyond the powers of Parliament to legislate, as has been put forth by the Government, both inside and outside Parliament. It also goes beyond the Government’s valid argument that it had acted within the law as it stood.

True, the Eighteenth Amendment to the Constitution has restored the powers of appointment and dismissal of Government employees, including the Judges of the superior courts, in the Executive President. Also true, the Apex Court upheld the amendment and the restored powers of the Executive. It did not take away the inherent powers of the higher Judiciary to investigate laws and interpret the Constitution.

Ironically, any law on those lines too would have to pass the litmus test of ‘judicial review’. Sri Lanka may not have the equivalent of the ‘Keshavananda Bharati case’, as in India, but here too ‘judicial review’ is construed as a ‘basic structure of the Constitution’, as held by the Indian Supreme Court as far back as 1973. If a Constitution provides otherwise, it would be deemed to be less democratic, or have none at all. That is the basis on which western democratic traditions have been built. That is also what Sri Lanka is proud of following.

If the courts can question the wisdom of Parliament and the Executive (without involving the office and the person of the President, as guaranteed in the Constitution), it can also haul up individual members, cutting across party lines and positions taken on the impeachment motion, for participating in a process that had already been held unconstitutional. In turn, Parliament can haul up the Judges and the civil society, for breach of the ‘privilege of the House’, which even ranking members of the Opposition say, exists.

If better counsel does not prevail on either side, it would be a chicken and egg situation with consequences for the whole of Sri Lanka. Already, Judges have been staying away from courts, so are lawyers, the latter cutting across possible party lines and loyalties. Weapons-wielding thugs also seem wanting to have a say on the matter as their privileged presence and forced intervention in the anti-impeachment protests are anything to go by. It may not be anarchy, but unlawful, nonetheless.

Theoretical Exercise….

It should remain a theoretical exercise, but any impeachment order by the President, and held unconstitutional by the Supreme Court, would cause a classic case of constitutional crisis of the first order. Who should prevail over whom, why and how, would be the question. The ‘Founding Fathers’, even of the 1978 vintage, do not have any answers. They knew that if it came to that, not only would the constitutional scheme collapse, but going beyond that, the nation would be stalled and shattered.

For starters, the civilian bureaucracy would not know whose orders to obey, if it came to that very stage, further on. Can moneys be drawn from the Consolidated Funds on the signature of individuals elected by the people or not? Can legit orders otherwise passed by those entrusted with those powers and responsibilities become illegal and unconstitutional under such circumstances – and, would be declared so if and when the courts were to be called upon to interpret it, on another day?

The immediate concerns would outweigh thematic, theoretical constructs of the kind. Who will the police, entrusted with the maintenance of law and order, take orders from? Should the defence forces carry out the required orders of the Government of the day in theoretical situations, such as internal disturbance or external aggression? If there were to be a natural calamity of unprecedented kind, would the Government have the authority to despatch relief material, or even proclaim ‘emergency situation’, to handle the national crisis?

The Constitution does not provide answers. It did not foresee such situations. The Founding Fathers in their wisdom would have concluded that there would be no nation worth the name, or no State structure worth the right and responsibility, for them to legislate on, if an unprecedented deadlock of the kind arose. They left it open. They possibly prayed that the sun should never rise on a day such as one where the nation’s Constitution and institutions had failed it, and failed its people.

Judicial Accountability

Independence of the judiciary and the procedural issues in the impeachment proceedings do not however do not divert from the need for instilling an element of ‘judicial accountability’ in Sri Lanka, as is being attempted in countries like India. The irony would be that even such laws on judicial accountability are riven with the possibility of the Judiciary in any or all these nations striking it down as unconstitutional. The case cannot be pre-judged however.

In a nation where you have had a Chief Justice who swore in an incumbent President for a second term in secrecy and went on to strike down the effects of that ceremony not long after, there is a need for the Executive and the Legislature to hold the Judiciary accountable to what its members have done, or not done but were expected to be doing. There have been other instances and cases involving other judges at all levels where individuals had violated the moral code that sets the Judiciary apart from the political class and their bureaucracy.

In the case of Chief Justice Bandaranayake too, there were questions of propriety in matters concerning her husband’s case that came up before it. In other democracies, Judges simply recuse themselves, even if they did not have any role in their out-of-turn appointments to high offices that they may not be otherwise be qualified for. In a constitutional scheme, it is impeccable adherence to personal proprieties that puts the Judiciary up on the altar, neither law, not even the Constitution.

Name & Shame

A vague and unsubstantiated allegation has also been made that ‘external powers’ were using the Judiciary in the country to effect a ‘regime change’. Similar charges had been made during the run-up to the presidential polls of 2010. Soon, it became an open secret that some western diplomats in Colombo, and some hired agencies from the West, were either campaigning, or working, for the electoral defeat of the incumbent.

Whether or not it was proper conduct on their part to do so, the results put an inadvertent seal on the controversy. More however was to follow in other ways. In the present case, however, none has shown CJ Bandaranayake in similar light. With a PSC looking into 14 different charges against her, it would have been prudent to have taken the case, if any, to the parliamentary inquiry. The Sri Lankan State has enough resources in its armour to produce fool-proof evidence of the nature that would be required.

At this late hour, too, those who had made the claims could still name and shame those involved, if those names have any relevance to the issue at hand. Otherwise, those who needed to be named, should be named – and shamed, as well. Such charges cannot be allowed to hang loose. They could have greater and/or worse consequences for the nation than even the current brink-position.

The question today is not about the propriety on the part of an individual, or the position in the Constitution. Those days are beyond Sri Lanka. Instead, the question is to save the day, save democracy, and save the nation. It would require compromising of institutional egos, and of individual claims. It would have to be more of the latter compared to the former, and a cooling-off period in between could help ease tensions and tempers, which together have pushed the nation to where it should not be, and does not want to be.

(The writer is Director and Senior Fellow at the Chennai Chapter of Observer Research Foundation, ORF, the multi-disciplinary Indian public-policy think-tank, headquartered in New Delhi.