Crack­ing a Nut with a Sledge­ham­mer

Southasia - - The last stop - By Anees Jil­lani Anees Jil­lani is an ad­vo­cate of the Supreme Court and a mem­ber of the Washington, DC Bar. He has been writ­ing for var­i­ous pub­li­ca­tions for more than 20 years and has au­thored sev­eral books.

One of the most ob­vi­ous traits of a wise man is that he or she does not try to rein­vent the wheel and learns from the mis­takes of oth­ers. It ap­pears that Sri Lanka’s Pres­i­dent Mahinda Ra­japaksa does not fall in this cat­e­gory as he is bent upon mak­ing the mis­take that Gen­eral Mushar­raf made in Pak­istan. Pres­i­dent Ra­japaksa first dis­missed the Army Chief and in­car­cer­ated him and now de­sires to im­peach the first fe­male head of the Supreme Court, Chief Jus­tice Shi­rani Ban­daranayake.

On Novem­ber 23, she ap­peared for the first time be­fore a par­lia­men­tary se­lect com­mit­tee con­sid­er­ing an impeachment mo­tion against her filed by the government. Just like in Pak­istan, the pro­ceed­ing has raised the risk of a desta­bi­liz­ing clash be­tween the government and the ju­di­ciary and lawyers.

There are 14 charges against the Chief Jus­tice, in­clud­ing the al­le­ga­tion that she mis­used her po­si­tion and failed to ad­e­quately de­clare her as­sets. Her sup­port­ers of course say that the ac­cu­sa­tions are po­lit­i­cally mo­ti­vated and see it as an at­tempt by the Pres­i­dent to curb the in­de­pen­dence of the ju­di­ciary and con­sol­i­date his power.

The ten­sion be­tween the ju­di­ciary and the Pres­i­dent is ris­ing. Just a few days be­fore the start of the impeachment pro­ceed­ings, the Supreme Court blocked ef­forts by the Pres­i­dent to cen­tral­ize cer­tain pow­ers at the ex­pense of elected pro­vin­cial coun­cils. The government’s pro­posed change would have meant that one of the pres­i­dent’s brothers, a cur­rent cab­i­net min­is­ter, con­trolled more than $600 mil­lion in devel­op­ment money.

Pres­i­dent Ra­japaksa’s gov­ern­ing coali­tion dom­i­nates the Par­lia­ment. He was re-elected to a sec­ond term in Jan­uary 2010. His crit­ics lament that the Pres­i­dent is con­stantly try­ing to broaden his pow­ers. His government al­ready con­trols both the ex­ec­u­tive and leg­isla­tive branches, and ac­cord­ing to the crit­ics, he now wants to con­trol the ju­di­ciary.

The fact is that the back­ground to the impeachment process is not as in­no­cent as it may ap­pear, just as it was the case with the Mushar­raf’s at­tempt to dis­qual­ify Pak­istan’s Chief Jus­tice. Prior to the cur­rent cri­sis, the Supreme Court bench, of which the Chief Jus­tice was the head, de­clared some Bills submitted to it by the government as be­ing in con­flict with the Con­sti­tu­tion. This move has been seen by al­most ev­ery­one as the rea­son be­hind the impeachment.

The Chief Jus­tice does not see the con­sti­tu­tional process deal­ing with impeachment as a just and fair one. The UN Rap­por­teur for the In­de­pen­dence of Lawyers and Judges and many in­ter­na­tional au­thor­i­ties have ex­pressed se­ri­ous con­cerns about the impeachment is­sue and have re­quested the government to re­con­sider the mat­ter.

The United Na­tions Spe­cial Rap­por­teur, while ex­press­ing se­ri­ous con­cerns about re­ported in­tim­i­da­tion and at­tacks against judges, warned that they might form part of a pat­tern of at­tacks, threats reprisals and in­ter­fer­ence in the in­de­pen­dence of the jus­tice sys­tem in Sri Lanka.

The US State De­part­ment spokesper­son said that the move would im­pede the ef­fi­cacy and in­de­pen­dence of Sri Lanka’s ju­di­ciary, and stated, “it seems to me rather like tak­ing a sledge­ham­mer to crack a nut. What makes it worse is that those re­spon­si­ble for the impeachment mo­tion seem to be go­ing af­ter the wrong nut.”

The cri­sis is fur­ther com­pli­cated by the fact that some of the judges other than the Chief Jus­tice who have dared to chal­lenge the government’s writ or even ex­pressed any sort of dis­agree­ment have been beaten. The Ra­japaksa’s government has failed to take ad­e­quate mea­sures to en­sure the phys­i­cal and men­tal in­tegrity of the ju­di­ciary and al­low them to per­form their pro­fes­sional du­ties with­out any re­stric­tions, pres­sures, threats or in­ter­fer­ences. Why does it sound so fa­mil­iar to us in Pak­istan?

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