Systemic crisis: It is not over

By Sumanasiri Liyanage-January 28, 2013

There is an unusual and unexpected calmness in Hulftsdorp in the post-impeachment days in spite of the fact that all traditions and conventions were put aside in the appointment of the new Chief Justice in place of Dr. Shirani Bandaranayake. At the time of appointment as the CJ, Mr Mohan Pieris was a director of many private companies and the legal advisor to the Cabinet. Previously, of course with rare exceptions, it was either a most senior Supreme Court Judge or the Attorney General who was appointed by the President as the CJ. The present appointment is totally outside the legal system. This is somewhat a hilarious occurrence. Previously, a retired CJ was appointed as an advisor to the President; this time a legal advisor was promoted to the position of CJ. Karl Marx would have added, first time as a tragedy and second time as a farce. The system of making CJ after retirement political was replaced now by pre-CJ political training. Hence if he comes up with pro-government and pro-private enterprise verdicts, it would not be a matter to be surprised. It is equally amusing that the ‘big talks’ of the Bar Association of Sri Lanka and the Lawyers’ Collective have come to an end suddenly. One of my friends at the university remarked: "We struck work for nearly 100 days; they have failed to fight back even a day". In explaining this post-impeachment scenario, I advance further the argument that was outlined in my previous articles on the same subject.

Let me begin with a point that is of relatively less importance. Why has the lawyer community failed to continue their campaign? Lawyers’ struggle has been purely legal-constitutional so that it was grounded on a very weak and fragile basis. Constitution is a ‘text’ reading of which may produce multiple meanings. As a person with no legal background or training, my reading of the text is a layman’s reading. In my reading of the 1978 Constitution, it is totally incorrect to argue that although separation of powers between three organs of the state is clearly specified in it, three organs stand on a par with each other. Article 4 specifies how ‘the sovereignty of the people shall be exercised’. Not only the legislative power of the people but also the judicial power of the people shall be exercised by the Parliament, the difference is while the former shall be exercised by the Parliament directly the latter shall be done indirectly through courts set up by it. Constitution provides measures to ensure the operational independence of the judiciary vis-à-vis the legislature and the executive. However, the judiciary is not an organ of power that is on a par with the legislature and the executive. Secondly, one may wonder why BASL and the Lawyers’ Collective made hair-splitting arguments about the Article 107 (3). Any layman can see that the Parliament can act by using its standing orders over an impeachment motion. I looked at what the 2000 Constitution Draft that some members of the Lawyers’ Collective are well aware of said about the matter. Once again it is verbatim inclusion of what is in 1978 Constitution. Of course, it has proposed to adopt something similar to the 1968 Indian Judiciary Act prior to the acceptance of such an address by the Speaker of the Parliament. That was why I argued in my previous article that the position of the BASL, Lawyers’ Collective and the Supreme Court determination are incorrect. Sri Somnath Chatterjee, a Speaker of Indian Lok Sabha, argued strongly that two organs should act within the boundaries defined by the Constitution. He once remarked: "My humble contention is that no one is above the Constitution. If the Constitution of India has said that no court shall have jurisdiction over the internal proceedings of the legislature, the Court cannot annul it with some sort of interpretation. So, I am hopeful and I believe that the Supreme court, in its wisdom, will not in the future or ever accept any attempt to have such interpretations, which would allow an interfacing supremacy." It appears that the lawyers have decided to end their campaign partly because of the realization that their reading of the text is not correct.

By emphasizing the ‘legality’ of the impeachment process, I do not reject the view that the impeachment process from the beginning to an end has been a politically motivated exercise. On the contrary, I submit that this so-called legality is the one that has to be questioned and challenged.

Let me now turn to a point of great importance recapitulating the principle argument that I advanced in my previous articles. In Sri Lanka, the state of exception today is not an exceptional state but a normal situation. Of course the process is still in progress. An attempt to increase the number of hours that police can keep a person without presenting to a magistrate from 24 to 48 hours is another step to make this state of exception normal. The Government has already presented a bill to that effect even the Lessons Learned and Reconciliation Commission (LLRC) has recommended to reduce the duration of police custody. Since the state of exception has been established through constitutional means it has to be supported by introducing two incentive and ideological instruments, namely, a system of bribes and promoting Sinhala Buddhist ideology. Renewal of hate campaign against Muslims in Sri Lanka with the support of the Government or the parties belonging to governmental coalition is a clear evidence to the presence of this second element. In such a situation all liberal slogans like the establishment of the rule of law is totally meaningless as many things have been done either by following existing law or introducing new laws or amending existing laws. The tug of war between the executive and the judiciary in the last 3- 4 months is a reflection of the crisis of the system. The executive responded by using the mechanism of impeachment to oust the CJ who had refused to operate within this system. Appointment of Mr Peiris as a new CJ putting aside traditions and conventions is an attempt to patch up once again this decadent moribund system. The silent acceptance of new CJ by the legal community that includes judges and lawyers show that the government was able to succeed for the time-being. Nonetheless, it does not mean that the system is stable or is based on solid ground. Although it appears that everything is hunky dowry, the continuous eruption of crisis and the presence of conflicts on a regular basis shows the system prevails not because it can resolve amicably conflicts it encounters but because of the weakness and lack of perspective with regard to oppositional forces. The questions where and how next systemic eruption occurs is difficult one to be answered. However, the question why is obvious.

The writer is co-coordinator of the Marx School, Colombo, Kandy and Negombo.

E-mail: sumane_l@yahoo.com