Groundviews

Impeaching Sri Lanka’s Chief Justice: A primer

Image courtesy Read Sri Lanka

[Editors note: The Supreme Court ruling on the Divineguma Bill presented to Parliament just before this article was published noted that the Bill has to be passed with 2/3rd majority in Parliament and that Clause 8 has to be approved at a referendum. See original tweet by Daily Mirror here.]

The current battle between the Judiciary and the Executive/Legislative, culminating in the ongoing attempt by the government to impeach the Chief Justice, has received a lot of attention in the traditional media, and on Facebook and Twitter. People who don’t usually bother keeping abreast of the goings on in the country have been activated enough to post messages and share articles on FB. However, most of them don’t seem to be aware of the context to this crisis and how it has developed in relation to two other important current issues, the Divi Neguma Bill and the debate about the 13th Amendment to the Constitution. Here’s my layman’s attempt to make sense of this issue and to link up the three issues.

Simply put, the primary reason the government is trying to impeach the Chief Justice is because it perceives the Supreme Court’s ruling that the Divi Neguma Bill needs to be approved by all nine Provincial Councils before it can be presented to Parliament, as an affront to the power of the Executive. The government is positioning the reasons behind this move as a lot of other things – an affront to the power of the Legislative (i.e. the Parliament), ‘improper behaviour’ by the Chief Justice etc. – but it’s clear that there are big egos at stake here.

So what is the Divi Neguma Bill and what does the 13th Amendment have to do with all of this? The Divi Neguma Bill seeks to establish a Divi Neguma Department, a new body that absorbs the Samurdhi Authority, the Southern District Development Authority, and the Uda Rata Development Authority into one super-sized, centralized development authority. On the face of it, this seems logical; a centralized agency should be able to direct development efforts more efficiently than three agencies with often overlapping goals.

However, there are three disturbing aspects to this new body that raises alarm signals. The first is that the funds (a staggering Rs. 80bn) can allocated as decided by the Minister and the Minister only, and not by the Secretary to the Ministry as is the case with all other state bodies; the second is the unusually high level of secrecy that employees have to uphold – they can only divulge information when requested to do so by a court of law; and, finally, the Minister in charge is none other than the President’s brother, Basil Rajapakse. Since ministries under the purview of the Presidential family supposedly control 45% of the budget, another Rs.80bn under their control is unacceptable from a governance perspective.

So how is the 13th Amendment involved in all of this? Well the Supreme Court ruled that certain provisions in the Divi Neguma Bill, by taking back some of the powers devolved to the Provincial Councils, violated the 13th Amendment and that the government needed approval from all nine Provincial Councils before the Bill could be presented in Parliament. This is where it got tricky for the government because, while they controlled eight of the nine Provincial Councils, the ninth Council – the Northern Provincial Council – doesn’t exist. This is a self-inflicted problem as nearly everyone; civil society, the international community, and even the government-sanctioned Lessons Learned and Reconciliation Commission (LLRC), has been calling for Provincial Council elections to be held in the North for some time now and the government is technically violating the 13th Amendment by not doing so. Their response was to have the Governor of the Northern Province G.A. Chandrasiri, a political appointee, to vote in support of the Bill on behalf of the non-existent Council. A TNA MP promptly filed a case with the Supreme Court questioning the propriety of an unelected Governor to vote on behalf of the people of the province, thus leading to the current impasse. The Supreme Court is expected (the ruling is expected to be made public on Tuesday 6th November) to rule against the government, thus delaying the Bill indefinitely. The government would then have to hold provincial council elections in the Northern Province well ahead of schedule; an election they would most likely lose to the TNA. That would be the end of the Divi Neguma Bill and the plan to control Rs.80bn in un-auditable funds.

The SC ruling that the Bill should be passed by all nine Provincial Councils is also the reason why, a few weeks ago, everyone from the Defense Secretary to the JHU started making noises about repealing the 13th Amendment. As a standalone issue, I’m firmly in their camp, though not for the same reasons. The 13th Amendment to the Constitution of Sri Lanka was introduced in November 1987 subsequent to the Indo-Lanka Accord in July that same year. The Indians, for all intents and purposes, forced it upon us. The Amendment contained two key provisions – making Tamil an official language, and devolving powers to the provinces through the creation of Provincial Councils. Making Tamil an official language was timely, necessary, and should absolutely stand. My grouse is with the second part of the 13th A, the creation of the Provincial Councils, a colossal waste of taxpayers’ money. In theory, I’m in favour of some sort of economic/fiscal devolution (not police powers) to the regions, as it would force them to compete with each other for investments and prevent the lopsided development that we’re used to seeing (first Colombo and now Hambantota). However, it hasn’t worked for us in practice. The Provincial Councils are ineffective as they can’t collect their own taxes or create policies that offer incentives to businesses to invest in their electorates. They are essentially just another layer of ineffective bureaucracy. What’s worse however, is the manipulation of the system by criminals and dubious characters; using their resources to contest and win seats in Provincial Councils, most often on the side of the ruling party, and making themselves untouchable by the law.

The Chief Justice has her detractors too. Her appointment to the Supreme Court was itself controversial for a number of reasons, not least because she had never actually practiced law. She was purely an academic and was picked over more senior (and possibly more deserving) candidates, supposedly at the behest of her former professor G.L. Peiris. While this wasn’t as serious an issue as some would have you believe – Heads of State even in more sophisticated democracies routinely make left-field choices as their nominees to the highest courts, many feel she could have been more activist on several important issues, including the 18th Amendment to the Constitution. General opinion was that the Supreme Court could have instructed the government to hold a referendum on the issue, which would have allowed the Opposition and civic organisations to educate the general public about the dangers of the provisions in that Amendment, such removing term limits on the Executive Presidency and having the President, instead of the Constitutional Council, appoint the ‘Independent’ Commissions. Finally, there is the ethical question of the spouse of the Chief Justice accepting political appointments, including powerful ones such as the Chairman of Sri Lanka Insurance and Chairman of National Savings Bank. The Bribery Commission has also initiated an inquiry into the conduct of the Chief Justice’s husband in relation to the NSB – The Finance Company share transaction, with many wondering whether the two moves (the other being the impeachment process) are related.

Regardless of the actions of the Chief Justice and the views held about her, it’s important that the focus is on the principle of the impeachment process, the impact on the relationship between the Executive, the Judiciary, and the Legislative, and the long-term implications to governance and democracy in Sri Lanka.