by Tisaranee Gunasekara
“The most widely held theory of politics is also the simplest: the powerful get what they want”. Dani Rodrik (Project Syndicate – 2.5.2012)
It is almost two weeks since the Secretary of the Judicial Services Commission (JSC) Manjula Tilakeratne was attacked in broad daylight, on a busy suburban road, by four armed men. The police have so far failed to make any headway in the investigation into this outrage. And the perpetrators of this most outrageous crime continue to remain safe, beyond the reach of law.
That curious – but not unexpected – failure speaks far more resoundingly than any ‘discoveries’ or ‘breakthroughs’ about the provenance of this heinous attack.
The police have failed to find the assailants of Mr. Tilakeratne for the same reason the police failed to find the killers of Lasantha Wickremetunga – or the perpetrators of so many previous (greater and lesser) crimes with political complexions. In the case of all these political crimes, the actual physical perpetrators may have been ordinary criminals; but their paymasters cum protectors are extraordinary personages beyond the reach not just of Constable X, Inspector Y or SP Z but also of the IGP himself.
In Sri Lanka, the ordinary crimes with no political involvement are easy to identify – the Lankan police in general manage to resolve them and bring the perpetrators to justice. The political crimes reveal their genesis in the curious failure of an otherwise reasonably competent police force to resolve them. The crimes with political twists invariably remain unresolved.
Several cases which are of critical importance to the rulers and the ruled of Sri Lanka are being considered by the Supreme Court currently. The outcomes in these cases will play a seminal role in deciding whether Rajapaksa governance exceeds all boundaries not just of justice and fair-play but also of enlightened self-interest. And it is in the atmosphere of raw physical intimidation, and of blatant impunity, created by the unresolved attack on the JSC Secretary, that the Supreme Court will be compelled to deliberate and decide on these landmark cases.
Sarath N Silva
Last week, the former Chief Justice, Sarath N Silva, made an interesting revelation about the role the judiciary can play, for good or for ill, in the fate of a country and its people. The former CJ admitted that it was thanks to him that Mahinda Rajapaksa became the president of Sri Lanka. Had he and the Supreme Court headed by him not ruled in Mr. Rajapaksa’s favour in the Helping Hambantota case, Mr. Rajapaksa would not have been able to contest the Presidential poll of 2005, the former CJ revealed.
In the ‘Helping Hambantota’ case Mr. Rajapaksa was accused of misappropriating tsunami funds. It was not a case requiring complex constitutional interpretations; it was a simple case of fraud.
If Mr. Rajapaksa was innocent of any wrongdoing in the ‘Helping Hambantota’ case, then he deserved to be absolved of all charges and his record cleansed of any blot. That is what the law is for, and that is what the law should be for all people, big and small.
Unfortunately the former CJ’s latest remarks create a puzzling picture about the rights and wrongs of the Helping Hambantota case and consequently about the guilt or innocence of Mr. Rajapaksa. According to the former CJ, he and the Supreme Court enabled Mr. Rajapaksa to contest the election, “expecting Mahinda Rajapaksa in turn would safeguard the rights of the other people but it is not happening today” (Daily Mirror – 17.10.2012).
Is the former CJ saying that the ‘Helping Hambantota’ ruling was based not on the rights and wrongs of the case but on political considerations?
Is he indicating that the court did not find Mr. Rajapaksa guilty not because he was innocent but because the former CJ thought he would make a good, responsible president?
Is Mr. Silva implying that the ruling in the ‘Helping Hambantota’ case was based not on laws and facts but on wishful thinking?
The 1978 Constitution created a behemothic executive. But the judiciary managed to retain its independence until the presidency of Chandrika Bandaranaike Kumaratunga. It was President Chandrika Bandaranaike Kumaratunga who commenced the systematic undermining of judicial independence.
Especially damaging was her practice of ignoring seniority and experience in appointing judges to the apex courts and using quasi-judicial methods to persecute her political opponents, alive or dead.
It was President Bandaranaike Kumaratunga who was responsible for the meteoric rise of Sarath N Silva. According to Wikpeida, he was “first appointed to the Supreme Court in 1995, then serving under her as Attorney General in 1996 and was appointed a President’s Counsel the same year”. In 1999 he was appointed the Chief Justice, over and above the far superior – and the far more senior – Justice Mark Fernando, a man renowned for his impartiality, knowledge and experience.
President Bandaranaike Kumaratunga was intent on unleashing her constitutional revolution (together with Minister GL Peiris) and she needed a pliant chief justice for that purpose. Mr. Silva had demonstrated that he possessed in ample measure, all the qualities indispensable in a political appointee, with the sterling role he played in the Presidential Commission on the assassination of Vijaya Kumaratunga.
That Commission was aimed at whitewashing the JVP and placing the blame for Vijaya Kumaratunga’s murder on the UNP in general and President Premadasa and Minister Ranjan Wijeratne in particular. And the Commission fulfilled the wishes of the appointing authority, the President, to the fullest.
So Mr. Silva was appointed chief justice and for several years he made decisions favourable to the president who made him. In August 2001, the International Bar Association warned that the President and the Chief Justice were acting to undermine the rule of law.
As President Chandrika Bandaranaike Kumaratunga’s political life neared its end – and with it her usefulness to him – did Mr. Silva look around for another patron?
Was that why he picked on Mahinda Rajapaksa and enabled him to contest the Presidency?
The former CJ’s mea culpa – and the sordid tale of favouritism it hints at – could not have come at a more apposite time; it clearly demonstrates the absolute, indispensable importance of judicial independence.
Without judicial independence, there is no rule of law, no justice and no fair play. Without judicial independence a democracy is not free and citizens are not safe. Without judicial independence, tyranny has an open field.
Today the Rajapaksas are attempting to bring to a deadly conclusion the war on the justice system launched by President Chandrika Bandaranaike Kumaratunga.
A Lankan internet-wag recently advocated that the appointment of Presidential offspring and neophyte lawyer Namal Rajapaksa as the Chief Justice would be the best way of ensuring that the executive, the legislature and the judiciary cease to be in conflict, that they see with the same eye, hear with the same year, do with the same hands and think with the same brain.
Indeed; a totally conflict-free relationship between the pillars of state is possible only if they are controlled by one entity. Conflict of opinion and action between the executive and the judiciary is what makes a democracy. Such differences are normal in any democracy; and to see in these normal democratic differences a conspiracy is indicative of a despotic mindset, which abhors dissent
Divineguma Bill -Full Fledged Despotism
The Divineguma Bill should be opposed not just by supporters of devolution and defenders of the 13th Amendment. The Divineguma Bill should be opposed by all those who do not want Sri Lanka to increase her pace towards full fledged despotism. Because the primary aim of the Divineguma Bill is to strengthen immeasurably Rajapaksa control over Lankan state and society, by transferring a whole gamut of economic powers into the hands of Brother Basil Rajapaksa.
Divineguma Bill is the Jana Sabha Bill by another name. The Bill will enable the setting up of several layers of unelected organisations from the lowest – the Grama Niladhari division – upwards. The Apex body in this multi-layered structure will be the Divineguma National Council and the minister in charge will have the right to appoint 6 out of its 11 members.
The minister will be in control of the Divineguma Banks and Banking societies and the Divineguma Development Fund as well. The minister in charge will of course be none other than Basil Rajapaksa. Naturally; the Rajapaksas will permit the creation of such a powerful megalith only for another Rajapaksa.
The new Divineguma Department will be endowed with Rs.80 billion (more than education and higher education put together) to play development-poker with, behind a wall of official secrecy.
If the Divineguma Bill is approved it will set a dangerous precedent. The Rajapaksas do not want any dilution of their powers either through power-separation or power-devolution. The Siblings are opposed to the 13th Amendment for the same reason they were opposed to the 17th Amendment – both cause a slight dispersal of power.
There is little doubt that the Supreme Court made a cardinal error in providing such an easy and fast passage to the draconian 18th Amendment. But all that is water under the bridge. Our task today is not to dwell on past mistakes but to do what we can to protect whatever residue of judicial independence in the here and now.
For any democrat, the task of the hour is to defeat the Divineguma Bill, prevent the repealing of the 13th Amendment and most of all protect judicial independence. These three goals are paramount in any realistic effort to prevent the Rajapaksas from amassing more power.