The impeachment motion against the Sri Lankan Chief Justice is being linked to the Supreme Court’s ruling that a draft law violates the Constitution on devolution
Ever since Sri Lanka’s Parliament set the ball rolling for the impeachment of Chief Justice Shirani Bandaranayake on charges of unexplained wealth and misuse of power, one reason has been constantly cited as an underlying flashpoint for the stand-off: her opposition to the controversial Divineguma Bill.
Divineguma means “uplifting lives,” and the legislation is for a poverty alleviation scheme through community level organisations. What is problematic about it is that it puts the Minister of Economic Development, Basil Rajapaksa (younger brother of the President) in charge, giving him wide discretionary powers and funds, overriding powers devolved to the provinces.
For this reason, the Supreme Court had made it plain that it was not in favour of the Bill, and it was immediately after this that the Sri Lankan Parliament began the impeachment process against Ms Bandaranayake.
The face-off over the Bill also underscored in one stroke the unresolved question of devolution of power to the Tamil minority, the Rajapakse government’s delay in holding elections to the Northern Province, and Colombo’s ambivalent messaging on the 13th Amendment, the constitutional provision for devolution that resulted from the 1987 India-Sri Lanka Accord. Defending the Divineguma Bill, the Deputy Minister of Economic Development, Lakshman Abaywardena, indicated that the government was prepared to enact a Constitutional amendment to remove any detriment to the development process created by the 13th Amendment.
The Bill was challenged before the Supreme Court through several petitions. As per Article 154G (3) of the Constitution, the Supreme Court sent it back to the government saying it had to be ratified by the Provincial Councils. There has never been a provincial council in Northern Sri Lanka (not counting the short-lived North-Eastern provincial council), and the province is run by Colombo through the Governor. It was the Governor who ratified the Divineguma Bill on behalf of the Northern Province. This was immediately challenged by the Tamil National Alliance before the Supreme Court through two petitions. On November 1, the Supreme Court held that the Governor cannot ratify the Bill in place of the Provincial Council. The Supreme Court found that the Bill contained as many as 12 provisions which encroached upon provincial subjects listed in the 9th Schedule of the Sri Lankan Constitution. In the absence of ratification by one or more Provincial Councils and because the Bill violates many Constitutional provisions, the Court held that the Bill had to be passed by a Special Majority (two-thirds) as per Article 84(2) of Parliament. On another contentious provision, Clause 8, the Supreme Court held that it would require a public referendum as it gave the power of appointment of Zonal heads to the Minister instead of the Cabinet, unless the provision was amended.
In a detailed brief, the Centre for Policy Alternatives, a Sri Lankan think tank, has criticised the Bill for attempting to set up an alternative structure that will allow Colombo to bypass the Provincial Councils.
Unlike most constitutional democracies where laws inconsistent with the Constitution are struck down, the Sri Lankan Constitution allows for such laws to be enacted through a Special Majority or referendum. With the ruling coalition controlling more than two-thirds of the Parliament, it is expected to pass the Bill. Mr. Lakshman Abaywardena, was quite clear that the Bill would be approved through the Special Majority route.
Among the charges against the Chief Justice are her failure to submit an annual declaration of assets and liabilities which is required of a judicial officer, including 20 bank accounts. The impeachment motion also accuses her of disregarding seniority and thus overlooking several eligible officers in the appointment of the chairperson of the Judicial Services Commission. On Thursday, she appeared for the third time before a parliamentary select committee probing the allegations.
But the timing of the impeachment motion, that coincided with the adverse Supreme Court ruling on the Divineguma Bill, has created the impression and given rise to suspicions that this is what is driving the move to oust Ms Bandaranayake. In response to this, the government has denied there is a link, saying the 14 charges listed against her in the motion had no connection at all to the proposed legislation, and the onus was on her to clear her name.
(Puneeth Nagaraj is a final year student at NALSAR University of Law, Hyderabad. Email: firstname.lastname@example.org)