CPA Policy Briefing: The Constitutional Crisis That Emerged Has Not Been Resolved

FRIDAY, 19 APRIL 2013 

The impeachment of Chief Justice Dr. Shirani Bandaranayake was the single most contentious political issue in Sri Lanka in late 2012 and early 2013. Four months since her removal from office in violation of decisions by the Supreme Court and Court of Appeal, the issue appears to have receded from the public square.

Asanga Welikala

While the government may appear to have resolved the political crisis occasioned by the impeachment, the constitutional crisis that emerged has not been resolved, leaving a number of troubling questions for the future of the rule of law unanswered. Can a decision of a court of law be considered binding if the executive opposes and disregards it? What is the role of the judiciary vis-à-vis the virtually unchecked power of the executive presidency? Is the judiciary independent of the President and Parliament? How does the claim to legal supremacy by Parliament affect the way in which it relates to the judiciary?

This Policy Brief seeks to address these issues and outline the urgent reforms needed to arrest the serious erosion of public confidence in the judiciary and the rule of law that has resulted from the impeachment. Section 2 outlines the political context and sequence of events relating to the impeachment. Section 3 examines the structural defects of the Sri Lankan constitution, which enabled the successful ouster of Chief Justice Bandaranayake, notwithstanding rulings by the Supreme Court and Court of Appeal to the effect that the process adopted was unlawful. The two main constitutional claims enabling the impeachment – presidential immunity and parliamentary supremacy – are examined, in the context of how they have developed throughout Sri Lanka’s recent constitutional history. The conclusions from this analysis reveal the need for a range of constitutional and legal reforms, from legislative measures needed to restore a more credible framework for judicial independence and impartiality, to other more fundamental reforms to the Sri Lankan constitution itself.

Read the Centre for Policy Alternatives report here