The devastating impeachment of the Chief Justice in Sri Lanka: Interview with Asanga Welikala

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Image courtesy The Hindu

Groundviews interviewed Asanga Welikala, a Senior Researcher at the Centre for Policy Alternatives (the institutional anchor of this website) on the unprecedented constitutional crisis that has gripped Sri Lanka. Over the years, Asanga’s appeared many times on Groundviews, including most recently, speaking about the dynamics of constitution making in Sri Lanka post-independence. He has also contributed some of this site’s most read and quoted articles.

For ease of access, engagement and virality on the web, Asanga’s remarkably frank and insightful interview is broken up into segments based on the questions he was asked.

Please outline the seriousness of the present constitutional imbroglio regarding the impeachment of the Chief Justice. Why should the ordinary citizen care about what is going on?

Many in the South, who consume State media, believe that Chief Justice Shirani Bandaranayake was corrupt, and therefore feel it is justified she was impeached. What is your response to this widespread perception?

Since the announcement of the impeachment proceedings (which I understand is a constitutional and provided for in the law) was there anything that could have been done differently to avoid what we are facing today?

Do the fundamental problems arising from and seriousness of the current constitutional crisis require a rewrite of [Political Science] textbooks in school?

Given that we are facing an unprecedented constitutional crisis, what options are there for a restoration of faith in the independence of the judiciary?

Some of those who oppose the impeachment are arguably compromising the position of Chief Justice by politicking with her, a state of affairs that she, by lack of any distancing, is actively encouraging? Why are no objections on this?

A Fundamental Rights petition has been filed by the Centre for Alternatives (CPA) today seeking to restrain the Parliamentary Council from considering the appointment of a new Chief Justice and restrain Mohan Peiris from functioning as the CJ on the basis that there is no vacancy. The Parliamentary Council has approved the nomination of Mohan Peiris as the new CJ. What now?

Deputy Speaker Chandima Weerkkody is quoted in the media noting that the appointment of a new Chief Justice would be done by the President and that appointment could not be challenged before a court of law. Deputy Speaker Weerakkody said that when the then President Chandrika Kumaratunga appointed Shirani Bandaranayke, a Supreme Court judge in 1996, some parties had challenged the appointment in the Supreme Court which had given a determination that the Presidential appointments could not be challenged. What is your take on this?

On 14 January 2013, the President, after meeting with the Bar Association averred that “The impeachment process was carried out strictly according to the current Constitution. There may be imperfections with our Constitution. No country has a constitution that is perfect, but we have to follow it.” What is your response to this assertion?

What to make of the Opposition’s (i.e. the United National Party’s) confused and confusing approach to the impeachment process?

Can Sri Lanka legitimately host the Commonwealth Summit if there is no independent judiciary and with a debilitating breakdown in constitutional governance? What are the implications of the present context over 2013 and beyond?

  • Dev

    Interesting interview, any reason its in small tidbits? Would have been easier to have one whole video

    • http://www.groundviews.org Groundviews

      Easier to share (email, tweet, publish on FB) responses for each question.

  • Patriot

    Although it is true that according to the current constitution, the “impeachment” of the chief justice is illegal, if you believe that the rule of law is sacrosanct, and that the constitution is supreme, then you must conclude that our current constitution itself is illegal!

    As we all know, unlike India, Pakistan and Burma that won full independence and became republics in the 1940’s, Ceylon remained a British possession with a constitution (soulburry) that explicitly recognized the Queen of England as the Queen of Ceylon. All legislature passed in parliament required royal assent in order to become law. This constitution did not have a provision for replacing it with a new constitution. Therefore, in order to replace the constitution, clearly, the procedure should be to create said the provision in parliament, and submit it to the Queen for royal assent, thereby making it law. But here’s the rub; they could not get royal assent for this! So our geniuses voted on it in parliament anyway, and asserted that it’s a “republican constitution”!!

    So why should we care if the current constitution is blatantly ignored. We pulled it out of our a$$e$ anyway. Again, if you believe that the rule of law is sacrosanct, then you have to conclude that the current constitution is illegal, and that amazingly, the Soulburry constitution is still the supreme law of the land, and that the Queen of England is still the Queen of Ceylon! She always has been!! How’s that for a constitutional crisis?

  • Gamarala

    Dear Groundviews,

    As a person trying to make sense of this fiasco, would groundviews be able to gather a response (from preferably some legal luminaries) to G.L. Peiris’ opinion: http://www.dailynews.lk/2013/01/15/fea02.asp

    GL’s main argument seems to hinge on the fact that the Supreme court ignored the word “or by standing order” when issuing the writ of certiorari. Is this correct? And if it is, what basis does GL and the rest of the government have to dismiss the supreme court ruling? Is their assertion that the supreme court cannot provide a ruling on this matter valid?

    Of course, I note with some dismay, but not surprise, that GL altogether fails to address the following issues.
    1. Was due process observed in carrying out this impeachment?
    2. What of of the background to the impeachment process – wherein the impeachment was only carried out because the CJ issued a ruling unfavourable to the regime. Does that not deserve some consideration? What is the impact on the independence of the judiciary?
    3. Have these charges against the CJ been proven beyond reasonable doubt? There seems to be zero transparency in this process.

  • Sinbad

    Granting that GL may be right. The Standing Orders should state a procedure which is NOT against natural justice. There was NO set procedure and the JSC refused to state what it was. In 2002, the SL Govt., when questioned by the UNHRC regarding the standing orders which GL cites, stated that both the standing orders and the sections of the constitution would be ‘subject to judicial review’ if there is a perception that natural justice was violated.