This memoir by former Chief Justice Dr. Shirani Bandaranayake on the (now nullified) impeachment is a significant contribution to the cause of promoting the independence of judiciary in Sri Lanka. Its significance lies in the fact it exposes the truth about what really has happened to the judiciary as an institution within the context of changes brought about by way of the constitutions of 1972 and 1978, and the practices that have developed as a result of these constitutional changes. The memoir makes it starkly clear that the separation of powers, independence of the judiciary and respect for rules of natural justice are no longer a part of the Sri Lankan legal system, although many who are involved in the administration of justice may proclaim these as part of their credo. The contrast between truth and illusion is very clear when looking at the actual narrative of what took place by way of pressures exerted on the Chief Justice, and the ‘so-called-impeachment’ story.
She speaks touchingly about the relationship she had with her parents, who created a deep impression on her on the need to be faithful ones conscience and be truthful. Judging from her account of her resistance to having anything other than a strictly professional relationship with the executive, and the resistance to various pressures that came about related to the conduct of Judicial Services Commission, and, perhaps above all, in the manner in which she resisted all attempts to pressurize her to voluntarily quit her job to save the embarrassment of the executive for dismissing her, clearly demonstrates that she was faithful to her belief in acting on the basis of her conscience.
Personal Conscience and Social Conscience
The fundamental issue that arises here is as to whether, particularly in moments of national and a social crisis, is it enough for a judge (or, indeed, for anyone engaged in public life) to merely do their particular job within the framework of faithfulness to one’s conscience, while not addressing the structural framework within which they conduct their affairs, when that framework opposes the very principles that they are trying to defend. For example, the issues related to the separation of powers and the independence of judiciary, the need to follow the principles of natural justice in giving a proper hearing to person whose conduct is being examined, and even the very notion of a fair trial, need to be addressed. When these necessities are structurally removed, is it possible for one to carry out one’s duties on the basis of one’s personal conscience? Are not the issues of the absence of the structural recognition of the very notions on which one is trying to conduct one’s affairs a relevant factor in assessing how to function under these circumstances, and important to being faithful to one’s conscience?
1972 and 1978 Constitutions
The structural removal of the idea of separation of powers took place when the 1972 constitution was adopted. At the debate, all the prominent spokesmen for the government of the time quite categorically stated that the separation of powers principle had been displaced the removal of the possibility of the judiciary to challenge any of the decisions by the legislature. This they called the supremacy of the parliament. It removed the basic structural framework of the Soulbury Constitution, which was made on the basis of the general principles of liberal democracy.