The impeachment of Chief Justice Dr. Shirani Bandaranayake was the single most contentious political issue in Sri Lanka in late 2012 and early 2013. Can a decision of a court of law be considered binding if the executive opposes and disregards it? What is the role of the judiciary vis-à-vis the virtually unchecked power of the executive presidency? Is the judiciary independent of the President and Parliament?
The decline did not commence with the advent of the present regime. Instead, the regime inherited a constitutional and political structure that entrenched positions that undermine the independence of the judiciary. Chief among these are an overmighty presidency, and a political culture that has demonstrated an enduring attachment to the notion of a Parliament that is sovereign. Structurally and doctrinally,
therefore, the present government inherited a framework of government that could readily be deployed and indeed improved upon as the Eighteenth Amendment demonstrates to achieve its own objectives of regime consolidation through the hypercentralisation of power, and without any meaningful constitutional constraints that could prevent the realisation of such undemocratic aims.
A Centre for Policy Alternative report seeks to address these issues and outline the urgent reforms needed to arrest the serious erosion of public confidence in the judiciary and the rule of law that has resulted from the impeachment, the political context and sequence of events relating to the impeachment, the structural defects of the Sri Lankan constitution, which enabled the successful ouster of Chief Justice notwithstanding rulings by the Supreme Court and Court of Appeal to the effect that the process adopted was unlawful, and the the two main constitutional claims enabling the impeachment – presidential immunity and parliamentary supremacy and how they have developed throughout Sri Lanka’s recent constitutional history.
The conclusions from this analysis reveal the need for a range of constitutional and legal reforms, from legislative measures needed to restore a more credible framework for judicial independence and impartiality, to other more fundamental reforms to the Sri Lankan constitution itself.