HIS foes accuse Mahinda Rajapaksa of many sins during his
seven years as Sri Lanka’s president. They blame him for the savagery that cost
so many civilian lives as his army defeated the rebel Tamil Tigers in 2009.
They bridle at how he has carved up the government among his brothers, like a
thriving family-run conglomerate. They resent the amendment of the constitution
pushed through in 2010 to remove the limit on his tenure of two six-year terms,
and to give himself legal immunity and the final say in appointments to the
civil service, the judiciary and the police.
And they suspect his regime of
connivance in the beatings, disappearances and murders that have been used to
intimidate critics in the press and elsewhere.
Nothing, however, seems to have caused such outrage among
liberals in Colombo, the main city, as the decision by his government to
impeach and sack the chief justice, Shirani Bandaranayake.
Writing in the Sunday
Times, a Sri Lankan newspaper, after government supporters had raucously
celebrated the impeachment outside the chief justice’s house on January 11th,
Kishali Pinto Jayawardena, a legal activist, turned to the words of Mark Antony
in Shakespeare’s “Julius Caesar” to express her fury, lamenting “judgment fled
to brutish beasts”. Sri Lanka, she claimed, had “entered its darkest phase
since independence”.
This is surely over the top. Sri Lanka’s history has had
some very black spots. Besides the vicious 26-year civil war waged by the
brutal Tigers, Sri Lanka endured years of terror from a Sinhalese-Marxist insurgency
in its south and was among the worst-hit victims of the devastating tsunami of
December 2004.
The impeachment of Mrs Bandaranayake, in contrast, was a
bloodless tussle of constitutional interpretation. Even the hysterical warnings
of a constitutional crisis seemed a little overblown.
Just a few days later it
began to look more like a minor squall briefly interrupting the Rajapaksas’
ascent to the sunlit uplands of untrammelled power. Although Sri Lanka’s
lawyers have almost unanimously rejected Mrs Bandaranayake’s impeachment and
regard her replacement, Mohan Peiris, as an illegitimate government stooge, she
did not force a confrontation by turning up to work on January 15th. Her entry
to the Supreme Court would have been blocked by the police.
She also moved her
belongings out of the chief justice’s official residence, saying her life was
in danger. Deprived of a figurehead, her disgruntled colleagues and supporters
did not know where to turn.
The alarmists are quite right, however, that the affair has
done perhaps irreparable damage to the rule of law and the independence of the
judiciary. The ostensible cause of Mrs Bandaranayake’s impeachment was alleged
corruption. She was found guilty of interfering in a case involving a company
that had sold a flat to her sister, of not declaring bank accounts and of
failing to resign when her husband, as chairman of a state-owned savings bank,
faced bribery charges.
She and her supporters, however, see her troubles—and the
farcically unfair hearing she was given—as political, stemming from court
rulings the government did not like. In particular, the Supreme Court insisted
on amendments to an anti-poverty bill that was set to confer great powers on
the minister of economic development, the president’s brother Basil.
Constitutionally, the legislature has the power to impeach
the chief justice. That it did so is partly the fault of the Supreme Court
itself. After the 2010 election, it ruled that an opposition party could not
sack members who had crossed the floor of Parliament to join the government
coalition.
Since Sri Lanka has a system of proportional representation, this
seemed perverse. But it gave the government the two-thirds parliamentary
majority it needed to ram through its objectionable constitutional amendments—and
to impeach the chief justice.
This month, however, the Supreme Court ruled that the
impeachment process was unconstitutional. Since it has the sole power to
interpret the constitution, that should have been the end of the matter.
Instead, Parliament and the president have flouted its authority. They have put
the executive branch above the law. It is not just the Colombo intelligentsia
that is appalled. Foreign watchdogs, the Commonwealth, and America, Britain and
Canada have all voiced alarm.
In the short term, the government can probably get away with
it. The president still basks in the popularity of a man who won the war and
ended the fighting. Concerns about the way he did so are seen as squeamish
foreign bleats. And the economy is forecast to grow by nearly 7% in each of the
next five years. The lawyers who this week flew black flags and blew out
symbolic candles will lack supporters in Sri Lanka’s villages.
In the long run, however, trashing the rule of law has
costs. International criticism, centred since 2009 on the failure to give any
serious accounting of possible war crimes, now has another angle: the integrity
of Sri Lanka’s democracy. Already, in Canada, for example, politicians are
calling for a boycott of the Commonwealth summit to be held in Colombo in
November. Foreign investors, too, may worry that the legal system has become,
in effect, an arm of government.
Judge not, that ye be not judged
The administration’s supporters have likened Mrs
Bandaranayake’s impeachment to that of the Philippines’ chief justice last
year. That was seen as both proving the anti-corruption credentials of the
president, Benigno Aquino, and removing an obstacle to his reforms. But they
may also have had in mind activist judiciaries closer to home. India’s has
intervened on issues ranging from forest conservation to bus fuel. More
tellingly, Pakistan’s has seen off one dictator, Pervez Musharraf, and just
this week ordered the arrest of a prime minister of an elected government. Their
Sri Lankan colleagues must envy them. By Banyan for The Economist
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