If judges may not use their judgment, why have them at all?

The tremors generated by the impeachment motion brought against Chief Justice Shirani Bandaranayake continued to disturb the political landscape this week, though Budget 2013 may have momentarily grabbed the media spotlight.

The battle lines have become increasingly stark as the simmering conflict of the past two months between the Executive and Judiciary erupts into an open fight.

Even at the early stages the link between the Government's displeasure with the Chief Justice, and the Supreme Court determination on the Divineguma Bill, was hinted at by prominent legal personalities like Wijeyadasa Rajapaksha, President of the Bar Association, and J.C. Weliamuna, human rights activist and convener of 'Lawyers for Democracy.' It has now come to a stage where the Government is making no secret of the fact. The UPFA coalition swiftly collected signatures for the resolution requesting the impeachment, ready to be handed over to Speaker Chamal Rajapaksa on Nov 1, the same day that the Supreme Court conveyed its ruling to him on the Divineguma Bill. (This ruling followed a previous ruling in which the court said the Bill had to be approved by all nine Provincial Councils before it could be brought to Parliament.) The contents of the impeachment resolution signed by 117 MPs after being placed on the Order Paper were made public on Tuesday - the same day that the Supreme Court's determination on the Bill was announced by the Speaker.

Was this overlap of dates more than coincidental? Even if it were not, there seemed to be no room for further doubts on this point after UPFA Puttalam District MP Arundika Fernando's remarks at a Samurdhi officers' seminar in Kekirawa. He is reported to have stated outright that the 'real reason' for the Government wanting to have the Chief Justice removed was her 'interfering with the national movement to make Divineguma into a department.' Is this to say, in so many words, that the government expects rulings of the Supreme Court to be consistently in its favour? Is it a warning, in so many words, that judges must serve the interests of the incumbent government, or else face the consequences? Are judges not supposed to exercise their judgment anymore? And if that is the case why have judges at all?

The inescapable impression that the impeachment motion is directly related to the Supreme Court determination on the Divineguma Bill gives rise to some serious questions. If the message in this drama amounts to nothing more than a crude threat directed at the judiciary, then what is the relevance of the 14 'charges' in the impeachment motion? Are they nothing more than window dressing to cover up for a witch-hunt?

In the short time since the announcement of the charges against Bandaranayake CJ, there has already been a much discussion on the impeachment motion and its process. It is argued that this is not the first time an impeachment motion has been brought against a Chief Justice. Reference is made to the UNP's move to impeach former Chief Justice Neville Samarakoon, and its outcome. Previous Supreme Court rulings relating to controversial matters such as the 18th Amendment and the Appropriation Bill have also been brought up in discussion, with comments on what might have happened if those decisions had been different. It has been hinted with some irony that the crossovers from Opposition to Government ranks that took place in the context of the 18A, now provide the government with the majority it needs to comfortably launch the impeachment motion against the current Chief Justice. While it's true that the 18A was a turning point, and that it vested excessive power in the hands of the Executive, discussions that seek to blame the judiciary for the present crisis seem to miss the point that what is being directly challenged in the present tussle is not the merit of any particular Supreme Court ruling, but the very principle of judicial independence.

The impeachment motion is being brought against the background of a conflict where the Secretary of the Judicial Services Commission at first warned of a situation where the security of judicial officers was at risk, and a week later was himself physically assaulted. The incident led to an unprecedented decision by judges to register their protest through strike action. This is not the kind of backdrop that would be conducive to a 'fair trial'. While the impeachment was requested by government MPs, the judgment too, is to be delivered by a government-dominated Parliamentary Select Committee. Isn't the outcome of such a process a foregone conclusion?

The Opposition for its part has not asserted itself in this matter to any purpose. In fact, the alacrity with which the main opposition UNP agreed to join in the PSC would seem to suggest that its sympathies lie more with the executive/ legislature camp than the beleaguered judiciary. UNP Leader Ranil Wickremesinghe while dutifully asserting his belief in the independence of the judiciary, also hinted at Supreme Court judgments that were 'not favourable' to the UNP. Throughout the exodus of party members to government ranks over the years, defecting UNP MPs were able to retain their party membership through court orders based on technicalities. To Wickremesinghe too, the point seems lost that there is something more at stake here than a judgment not to the liking of one party or the other.

So far only the Lanka Sama Samaja Party and the Communist Party, both UPFA coalition partners, have acted on the basis of principle in relation to the impeachment. Both have withdrawn their support to the motion. The CP issued a statement that said, "Conflicts between the judiciary and executive is a product of the Executive Presidential system and would continue to recur as long as the Executive Presidential system is in place. Therefore our attention should be drawn to the urgency of abolishing the Executive Presidential system."

The abolition of the Executive Presidency was the main plank of an opposition rally organised by the National Bhikku Front in October. The call was for opposition forces to unite in order to challenge the increasingly authoritarian trends that accompanied the beefing up of executive power. But that event only served to demonstrate how badly fragmented the opposition, and the UNP in particular, was. The ineffectual opposition and the obstinate UNP leadership in particular have much to answer for, in relation to the current impasse.