Nations are well-governed when the executive respects the independence of the judiciary and permits judges to render opinions without fear or favor. In much of the developing world, unfortunately, freedom to follow the law and not the president or prime minister is a rare privilege.
In Zimbabwe, in 1999 and since, President Robert G. Mugabe has run roughshod over judicial prerogatives, famously saying that the law was what he said, not what the judges decided. “The judiciary has no right to give instructions to the President on any matter,” he declared. “The one and only honourable course open to [the judges] is quitting the Bench.” Now, in post-conflict Sri Lanka, President Mahinda Rajapaksa’s authoritarian-leaning government has this week started impeaching Chief Justice Shirani Bandaranayake for unspecified “misuse of office and personal misconduct.” “It is clear,” said a leading Sri Lankan political scientist, that the impeachment “has been brought with political objectives.”
In Zimbabwe in 1999 a panel of judges had dared to approve a writ of mandamus to stop the torture of two journalists at the hands of Mugabe’s military officials. In Sri Lanka, Justice Bandaranayake and other Supreme Court justices recently determined that the government could not take power from provincial governments and give it to the national government. Doing so, the court said, contravened the constitution.
Rajapaksa’s regime is also tightening control of all media, carrying out political attacks on opposition parties, diminishing separate police power, and bringing independent election offices under the state’s jurisdiction. Last year, the government of Sri Lanka also altered the constitution to give the president the power for the first time to appoint the chief justice, the national chief of police, and the head of the election commission.
The bill to impeach Bandaranayake is now before parliament. First the Speaker must decide if there is a valid case for the Chief Justice to answer. The appointment of a select committee to investigate the charges will come next, followed by a vote by legislators. The chief justice will be removed from office if more than half of parliament (113 members) vote against her. Since Rajapaksa’s party controls two-thirds of the 225 seat parliament, local observers are sure that the motion will pass.
This is but a further slap against democracy, the rule of law, and good governance in Sri Lanka under Rajapaksa. Indeed, last month unknown thugs attacked Justice Manula Tillakaratne, head of the still somewhat independent Judicial Services Commission, after he publicly protested against “powerful people” pressuring judges to toe the official line and provide “better” judgments. Tillakaratne was quoted as saying that throughout Sri Lanka “judges were living in fear of their lives.”
Opposition parties openly blame the government for attacking Tillakaratne and threatening other judges, but the government denies any involvement. Opposition parties and independent local commentators also fear that the government’s continued assault on judicial independence (as well as on the free media and against almost anyone who speaks out against the regime’s high-handed maneuvers) will continue to diminish human rights in Sri Lanka, subvert what is left of the country’s democracy, and provide ample and appropriate fuel for those at the United Nations who are scheduled shortly to review Sri Lanka’s respect for fundamental personal freedoms.
Without respect for the rule of law, regimes ultimately perish. For a time they can prey more and more intensively on their own people, autocratic presidents can amass more and more power, and constituents can suffer in silence. But peoples of proud countries such as Sri Lanka eventually find the means to toss out their tormentors and restore respect for basic human rights.
Rajapaksa and his family believe that eventuality will not come soon, because the regime gained legitimacy and impunity as a result of its decisive victory in 2009 over the Liberation Tigers of Tamil Eelam (the LTTE) and because of the regime’s tight control over military might. Yet, most of Sri Lanka once enjoyed freedom from fear and freedom of expression, plus solid rule of law. By overstepping norms, abrogating the rule of law, and punishing opponents mercilessly, the Rajapaksas may have finally gone too far. Sri Lanka’s democratic preferences are greatly threatened.