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| NOT PAKISTAN: The number of supporters on Shirani Bandaranayake’s side is still very few and far from the required critical mass for a movement to defend the independence of the judiciary. File Photo |
There are questions whether the parliamentary select committee
observed due process in its inquiry of the charges against Shirani
Bandaranayake
There has been an air of inevitability in the current showdown between
the administration of President Mahinda Rajapaksa and its latest bête
noire, Dr. Shirani Bandaranayake. Her fall from grace shows that the
Rajapaksa juggernaut does not warm up to dissent easily, even if, as in
this case, it measures up to the expected norms of checks and balances
in a self-described democracy.
The Parliamentary Select Committee (PSC), inquiring into the 14 charges
of professional and financial impropriety listed the impeachment motion
against her, rushed to bring its proceedings to an end last Saturday.
Undeterred by the walkout by four Opposition parliamentarians, the PSC
ruled that Bandaranayake was guilty of three charges of misconduct.
Parliament, where President Rajapaksa’s party has more than two-thirds
majority, is expected to vote on the committee’s findings in January.
Just 19 months after Bandaranayake was appointed with much fanfare as
the first female to head Sri Lanka’s judiciary, the fate of the 43rd
Chief Justice appeared to have been sealed following a ruling a she gave
to a Bill introduced in Parliament by the Economic Development
Minister, Basil Rajapaksa, one of the many presidential siblings
controlling the levers of power. The Supreme Court ruled that the Bill,
which wanted to empower the Central government to control a $614-million
development budget, violated the constitution. The court added that it
had to be first approved by nine provincial councils.
In early November, when 117 government parliamentarians handed over an
impeachment motion against the Chief Justice to the Speaker of the
legislature (Chamal Rajapaksa, another sibling), the process that
followed affirmed how heavy the odds were stacked against Bandaranayake.
The Sri Lankan constitution has ensured that the President and his
ruling party hold all the cards in filing an impeachment motion,
conducting a parliamentary inquiry and voting in the House to unseat the
holder of such a hallowed seat as the Chief Justice.
An inquiry or inquisition?
But last Thursday, a dramatic twist was added to a predictable plot.
After four hours of its third sitting, the Chief Justice and her legal
team walked out of the government-dominated, 11-member PSC. Her lawyers
said their client had “no faith” in the PSC and that it violated the
rules of natural justice.
The walkout underscored the question on many minds: was the PSC an
inquiry or an inquisition? The question stemmed from what Bandaranayake
was subjected to that day. Not only was a procedure for the inquiry
still to be spelled out, but the accused was given close to 1,000 pages
of documents to respond to in a day, no witnesses were listed, no oral
evidence would be permitted, cross-examinations would be denied and two
government parliamentarians on the PSC heckled the beleaguered Chief
Justice during the proceedings, calling her a pissu geni (“a mad woman,” in Sinhala).
Making bank accounts public
Such has been the haste to get rid of Bandaranayake that due process and
legal consistency have both been given the go-by. In a now familiar
political tactic of the regime, the government-controlled media held its
own trial to vilify the latest enemy of the state. The state’s media
have, for instance, repeatedly made public Ms Bandaranayake’s private
bank accounts — a brazen violation of banking secrecy protected by law.
The state-run Daily News has been in the vanguard. Commentaries
and reports in its pages have carried details of the alleged accounts
Bandaranayake had and supposed amounts and transactions in each. Her
private finances feature in two of the 14 charges in the impeachment
motion (which implies that the 117 legislators who signed it have seen
the bank accounts).
Such a display of impunity on a vital feature of the economy was not
used even in the 30 years that Sri Lanka fought the Tamil Tigers. When
government investigators wanted to follow the financial trail of Tamil
Tiger operatives, a court order was often sought to access bank
accounts, despite the Emergency laws in operation then and the
Prevention of Terrorism Act.
Pakistan parallel
Given such political mud she has been dragged through, it is no surprise
that Bandaranayake has won support from a broad constituency of
jurists, lawyers, academics, activists and religious leaders. Some have
now begun to draw parallels between her quest to defend the independence
of the judiciary against an all-powerful President and the epic
struggle between the Pakistan Chief Justice Iftikhar Muhammad Chaudhry
and the country’s then military President, General Pervez Musharraf.
Chaudhary’s sacking triggered a protest led by lawyers that fast drew in
others; he was eventually reinstated, and the movement was one of the
factors that saw off Musharraf.
Unfortunately for Bandaranayake, such parallels are only in the realm of
ideas. The number of supporters on her side is still very few and far
from the required critical mass for a movement to defend the
independence of the judiciary. Muscle and power on the streets are still
controlled by the well-oiled Rajapaksa political machine.
If the inevitable occurs, and she is impeached early next year,
Bandaranayake’s plight would affirm who the real winners are in a
post-war country trying to promote itself internationally as a “Wonder
of Asia.” It would clearly not be those who think that the judiciary has
a legitimate role in reining in unbridled political power through a
system of prescribed checks and balances. Bandaranayake’s successor is
sure to be acutely aware of the political sword dangling over his head.
(Marwaan Macan-Markar is a Sri Lankan journalist covering South Asia and Southeast Asia for an international news agency.)