Midweek Politics: The Ghosts Of Expediency

By Dharisha Bastians -February 13, 2013

Dharisha Bastians

Domestic political victories in the short term, often won at a great cost to democracy, liberty and the rule of law have a way of haunting the Government internationally for years to come. Certain international manoeuvrings are beginning to indicate that as the Rajapaksa administration looks towards the UNHRC sessions in Geneva and a major Commonwealth summit beyond that, it will not only have war crimes allegations and feet-dragging on reconciliation to reckon with. The Government’s more recent adventures in political expediency, authoritarianism and minority suppression, illustrated by a flawed impeachment of the Chief Justice, the enactment of Draconian anti-terror legislation and the threat of repealing the 13^th Amendment which deals with power devolution may also prove hard demons to slay

“Though the mills of God grind slowly, yet they grind exceeding small”

- From ‘Retribution’ by Henry Wadsworth Longfellow

Sri Lanka’s legitimate Chief Justice Shirani Bandaranayake may soon cease to hold what some legal minds have called that ‘de jure’ or lawful title.

The newly installed regime at Hulftsdorp will soon be presented with an opportunity to declare null and void two judgments by the highest courts of the land, that declared the process to remove her unlawful and unconstitutional. The Attorney General has appealed for a divisional bench of the Supreme Court to rule on two Fundamental Rights petitions against the Parliamentary Standing Order that sets the procedure for the impeachment of Supreme Court Judges. The legality of Standing Order 78A, has already been ruled on by a three-judge bench of the apex court, when several writ applications filed in the Court of Appeal were referred to the Supreme Court for constitutional interpretation. Under the circumstances, that ruling would have been a frame of reference for any bench of the same court hearing the two FR petitions against the Standing Order. But the AG’s application for a divisional bench – or a bench comprising five or more Supreme Court judges, means that the new Chief Justice, Mohan Pieris will now be able to appoint a fuller bench that could potentially review and even overturn the Supreme Court’s 1 January ruling.

That landmark determination which found the Standing Order had no basis in law, set the stage for the Court of Appeal to issue a Writ Certiorari quashing the findings a legislative committee that probed the charges of impeachment against Bandaranayake and found her guilty on three counts, allowing the President to sack her from office.

Post-facto, the Rajapaksa administration is determined to change that.

Earlier this week, a petition was filed in the Supreme Court praying the Court to overturn the Writ Certiorari issued by the Court of Appeal that de-legitimized the probing committee report that found Bandaranayake guilty of ‘proven misbehaviour’ warranting her removal from office. It is safe to say that it is no accident that a citizen from Gampaha decided the time was apt to find a way to quash the Writ issued by the Court of Appeal.

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