DBSJeyaraj.com on Facebook

Can The Judiciary Resist The Rajapaksa-tide?

“the real tyrant is a man who sacrifices a whole nation to his ideal or his ambition”. – Camus (Caligula)

By Tisaranee Gunasekara

Separation of powers and power-devolution are alien to Rajapaksa thinking and inimical to the Dynastic Project.

History’s watershed moments are generally identifiable only with hindsight. Sri Lanka might be experiencing an exception to this rule, as a government scheming to ‘overstep its proper powers’ is being resisted by a Judiciary trying to retain its constitutional role and democratic relevance.

Gathering all reins of power into Familial hands is a central tenet in Rajapaksa thought. Measures to empower the Siblings by disempowering Lankan citizens and institutions have been a ubiquitous feature of Rajapaksa rule.

The 1978 Constitution created an all powerful presidency with just two shackles. The PR system was expected to deny the executive a complete stranglehold over the legislature. The term-limit provision prevented the über-powerful president from staying on beyond two terms. J. R. Jayewardene had to leave after two terms. Chandrika Bandaranaike Kumaratunga’s attempts to elongate her political life were defeated by the PR system.

The Rajapaksas have overcome both constraints. A concoction of managed elections, inducements and compulsions has enabled the UPFA to obtain a two-thirds majority in parliament. The 18th Amendment removed the term-limit provision while empowering the Presidency still further.

The Ruling Siblings’ appetite for power is limitless. The next (interrelated) goals are to subjugate the Judiciary and to emasculate the 13th Amendment by repossessing the powers of the provincial councils.

Thus the immediacy and import of the Divineguma Bill.

The Divineguma Bill is the successor to several failed attempts to empower the Rajapaksas at the expense of provincial/local authorities. These included amending the Town and Country Planning Act to enable the regime to expropriate any piece of land by declaring it a sacred area; setting up a ‘Corporation’ under the purview of Gotabaya Rajapaksa to take-over the functions currently allocated to CMC and several other municipal councils; and the Jana Sabha Bill aimed at rendering the elected provincial councils and local government authorities subservient to the unelected Jana Sabhas, controlled by Minister Basil Rajapaksa.

The regime had to abandon each of these measures due to judicial intervention and public opposition.

In 2010, the Supreme Court approved the 18th Amendment, which re-conferred a lethal level of power on a president unimpeded by term-limits. The Chief Justice who oversaw that cardinal error acknowledged it obliquely, just before his retirement.

In an April 2011 interview with the BBC, Asoka de Silva emphasised that Sri Lanka needs a system in which one person does not have the ‘discretionary powers’ to make top judicial appointments. The 17th Amendment removed this ‘discretionary power’ but it was ‘re-established by the 18th Amendment’ he admitted.

Last week Wijedasa Rajapaksa, the President of the Bar Association, made a similar point: “There is too much power concentrated on the executive. The leaders have become arrogant. They seem to think that everybody should succumb to their power…” (Daily Mirror – 25.9.2012). Mr. Rajapaksa also identified the recent Supreme Court determination on the Divineguma Bill as the immediate reason for the executive’s current ire against the Judiciary.

The assertion makes sense. The Divineguma Bill is aimed at further extending the already extensive economic empire of Basil Rajapaksa. Public funds amounting to Rs. 80 billion will reportedly be allocated to the Divineguma Department and a policy of total secrecy imposed on all its employees. The Bill will also denude the provincial councils of quite a few powers. Thus the Bill, if enacted, would constitute a great leap in the anti-devolution and anti-democratic direction.

Just hours after his Brother, the Speaker, announced the Supreme Court decision regarding the Divineguma Bill, Minister Basil Rajapaksa “assured hundreds of agitators that the proposed Divineguma Department would be established under an Act of Parliament irrespective of whatever the constraints were” (Island – 18.9.2012). Given the disarray in the opposition and the supine conduct of the SLMC, the only really existing constraint before the Divineguma Bill remains the Judiciary. Thus subjugating the Judiciary would be a matter of priority for the Rajapaksas.

Targeting the Judiciary?

Fernand Braudel in his seminal work, ‘A History of Civilisations’ posits that the word ‘civilisation’ in its plural form is used to denote ‘the characteristics common to the collective life of a period or a group’.

The Rajapaksa civilisation is characterised by Rajapaksa power manifested as Familial Rule. For instance, in a normal lawful democracy, Gotabaya Rajapaksa would be just a senior bureaucrat. As the President’s brother he may enjoy some privileges but that biological fact would not entitle him to super powers. But under Familial Rule, Gotabaya Rajapaksa, the de jure bureaucrat is almost as powerful as the President.

Soon after the parliamentary election of 2010, Mr. Rajapaksa, in a thought-provoking interview, expressed “concern that a section of officialdom could help the separatist cause by trying to appease foreign governments and some funding agencies” and highlighted the “pivotal importance of the Judiciary, particularly the Attorney General’s Department, in supporting the government’s efforts to suppress terrorism” (The Island – 17.4.2010). These opinions indicated a future time when not just the democratic opposition and peaceful dissent but also any manifestation of independence and constitutional fidelity by the bureaucracy or the Judiciary will be conflated with treason.

That time is here.

The Divineguma Bill will be approved by all UPFA-controlled provincial councils. It will encounter impediments only in the East and the North.

The Eastern outcome will depend on whether Rauf Hakeem is willing to do irreparable harm to fellow Muslims by obeying the Rajapaksa-dictat and voting for the Bill.
The North will present a far more dilemmatic logjam. There is no elected provincial council in the North and short of a large-scale daylight robbery the UPFA will not be able to win an election there. So the regime will insist that its hand-picked Governor has the power to approve the Bill, in the absence of an elected council. Eventually the issue will have to be decided by the Supreme Court.

Thus the urgent Rajapaksa need to suborn the Judiciary.

According to media reports, the regime is planning to move against the Judiciary for its insistence on playing its constitutionally mandated role as a coequal pillar of the Lankan state. “The battle between the government and the Judicial Service Commission is likely to intensify, in the wake of certain decisions taken at an emergency meeting President Mahinda Rajapaksa had with several ministers and presidential advisors… According to highly placed government sources, one of the recommendations made at the meeting was for the President to take stern action against certain JSC officials… the emergency meeting was called as a response to a statement issued by Secretary of the JSC, Manjula Tilakaratne, alleging various elements were exerting pressure and influence on the JSC…” (Ceylon Today – 26.9.2012).

The Rajapaksas’ Southern modus operandi constitutes not of generalised offensives but of targeted attacks, to render silent/inactive the more vocal/active members of the entity they seek to control. The reported plan to target the Secretary of the JSC fits in with this mode.
Will the Judiciary save itself from irrelevance by preventing the further erosion of democracy and rule of law?

The future awaits. Courtesy: The Sunday Leader