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“Laws were promulgated to rationalize the actions of the regime. There is nothing like an administration operating outside the law, to use the law like a boomerang”. Jean-Claude Bajeux (The New Face of Macoutism: Headless Cadavers)

What if Mark Fernando and not Sarath Silva became the Chief Justice? What if the Supreme Court of Asoka de Silva did not enable the Rajapaksas to depict the murder of the democratising 17th Amendment as an act of mercy-killing? What if the Supreme Court of Shirani Bandaranaike refused consent to such abusive laws as the expropriation bill and refrained from providing a veneer of legality for the persecution of Gen. Fonseka?

Had those deadly mistakes not been made, Sri Lanka’s dying democracy would have been in much better shape, the JSC Secretary would not have been pistol-whipped and the impeachment of the Chief Justice would not be happening.

Will the judiciary and the society, through their indifference and inaction, place themselves in a situation which would, on some future date, compel them to ask, in gathering despair, whether the disaster of that moment could have been averted had the impeachment of Chief Justice Shirani Bandaranaike been thwarted?

The issue before us is not whether Shirani Bandaranaike conducted herself with exemplary and indubitable impartiality in the past. She did not. The issue is not even whether her husband should have accepted a political post. He should not have. All those are matters for the history books and for debates, analyses and discussions which must await a less momentous tomorrow

The issue is simply this and nothing else: do we allow the Rajapaksa regime to impeach a chief justice, out of vindictiveness and out of power hunger, and as a means of subjugating the judiciary to the will and whim of the executive?

Had Shirani Bandaranaike ignored the constitution and consented to the Divineguma Bill, she would not be in the plight she is today. Had Shirani Bandaranaike allowed the Rajapaksas control the JSC, she would have been spared the dangers besetting her today. Had Shirani Bandaranaike continued to amen the Rajapaksas, she would be safe and her husband would be safe, even if he sold out the entirety of the NSB.

The real reason the CJ is being impeached is because at some point in the recent past she refused to abide by Rajapaksa diktats. The real reason the CJ is being impeached because at some point in the recent past she decided that her task is to uphold the law and the constitution and not to prop up the government. The real reason the Chief Justice is being impeached is because she decided to act as a Chief Justice should.

So the Rajapaksa pack is baying for her blood. They have cornered her, they are throwing every missile they can at her and they are obviously hoping that she would break under pressure. Their best-case scenario would be if the Chief Justice succumbs, and gives a ruling favourable to the government on the Divineguma Bill as a mark of her return to subject-status. If that happens, the impeachment motion would probably be allowed to lapse and Ms. Bandaranaike permitted to remain in her position for the next 11 years, as a reliable pawn of the Rajapaksa power project.

Will Ms. Bandaranaike succumb? Or will she continue the fight? Will she take the road to servility and self-degradation? Or will she carry on the struggle for judicial independence, justice and for her personal honour? Her young son, in an impassioned defence of his mother, says she will not succumb. For the sake of the country and the people, one hopes that he will be proven correct. Because, if Shirani Bandaranaike succumbs to pressure, then the last remaining hope for Sri Lanka and Sri Lankans will die. And this country’s passage from a flawed democracy to a familial despotism will happen at the speed of light.

The attackers of JSC Secretary Manjula Tilakaratne are still at large. After the recent despicable performance, in parliament, by a government minister, there is little hope that the real attackers would be ever caught.

Despicable is not alien to the Lankan parliament. But a minister reading an anonymous letter sent to the IGP, and tabling that letter, marks a new low in despicableness even for the Lankan parliament. It is safe to surmise that such degrading depths have not been plumbed by any legislature, anywhere in the world, ever. It is also safe to surmise that this Rajapaksa record will always remain unbroken; if that feat of abhorrence is repeated, it will be in Lankan parliament and nowhere else.
After a minister read out and tabled in parliament an anonymous letter casting the most appalling aspersions on top judicial officials, one cannot but wonder when – and not if – the Rajapaksas would legalise the use of poison-pen letters as sufficient evidence to convict anyone of any crime. If the impeachment motion succeeds in either removing the Chief Justice or subjugating her, the judiciary will become as much of a Rajapaksa tool as the legislature or the bureaucracy or the military is. Then there will be nothing to prevent the Siblings from legislating whatever they want, including the admissibility of poison-pen letters as evidence in a court of law. Establish a Ministry of Poison-Pen Letters, appoint a minister, and the Rajapaksas can legally destroy all their opponents.

The poison-pen letter episode is illuminating in more ways than one. It demonstrates the degree to which the legislature has become demeaned. It demonstrates that the legislature is nothing more than a Rajapaksa tool. It demonstrates that Lankan rulers posses no sense of decency. Even a child knows that poison-pen letters are vehicles of calumny, hatred and vengeance and that no sane, intelligent, sensible person should take them seriously. The Rajapaksas never loose a chance to preach to the rest of us about everything, from the right vocabulary to the proper lyrics. By elevating something as degrading as a poison pen letter, these same Rajapaksas have acted in a manner that is contradictory to every tradition, every norm and every value. They have proven that all they care about is power and for that end they will wallow in any mire, however porcine.

The poison-pen letter episode also demonstrates that when the Rajapaksas are thwarted in their power-grab, their fury knows no bounds.

The charges against the Chief Justice are still not known. Going by the statements of some of the UPFA ministers and parliamentarians, the charges are not known even to them, though they are signatories to the impeachment motion. That in itself is a telling indicator of how Lankan government happens. The Rajapaksas decide and the rest of the ministers and parliamentarians, if they want to cling on to their powerless positions, will go along. Absolute obedience to Rajapaksa will is the cardinal Rajapaksa virtue and the pre-eminent Rajapaksa law.

These truths are applicable even to the members of the old left and the minority parties. These once-upon-a-time firebrands and powerbrokers have signed the impeachment motion like so many lambs. After this disgusting performance, it will be nothing less than delusional to think that either the LSSP or the CP or the SLMC or the CWC or other Tamil and Muslim remnants will fight to save the 13th Amendment. They will not. They will consent to a devolution-killing, power-concentrating 19th Amendment with the same demeaning alacrity they signed the impeachment motion or consented to the anti-democratic 18th Amendment.

Whatever they may have been in the past, today they are nothing more than Rajapaksa-ciphers, puppets whose sole concern is a continuing role in the Rajapaksa Puppet Theatre. They have forgotten their principals and their constituents, their past and their consciences; all they want to do is to cling to their impotent posts, for as long as possible. And for that end, there is nothing they will not letdown and no one they will not betray.

There maybe some closet democrats in the regime still; but there are no vertebrate ones.
In a country such as this, persecution is a badge of honour. That is why Shirani Bandaranaike should regard the impeachment motion as a crown of glory, proof positive that she has begun to uphold the law and the honour of her august position.

The impeachment motion against the Chief Justice is not just an attack on Shirani Bandaranaike. It is also aimed at the post of Chief Justice, and therefore all its future occupants. The message embodied in the impeachment motion is intended for every successor of Shirani Bandaranaike as well as every judge, every magistrate and every judicial officer, from the Supreme Court downwards. It tells them that their job is not to uphold the law or safeguard the constitution or ensure justice; their job is to do what the rulers want them to do, to prop-up Rajapaksa power and destroy Rajapaksa opponents. If they abide by these rules, they will be safe, their careers will flourish and honours will inundate them. If they do not, their lives will be blighted, their reputations will be besmirched and misfortune will dog even their families.

After all, this is the regime which is persecuting a seventy-something old lady for not betraying her grandson to the police. The persecutionary-prosecution of Danuna Tilakaratne’s grandmother tells us all we need to know about Rajapaksa values and Rajapaksa norms – plus the Rajapaksa willingness to violate anything, in their own interests and to destroy their opponents.

In the toxic atmosphere which results from such a disembowelling ethos, all sorts of insalubrious deeds cannot but thrive. After all, every day, we see the powerful taking law into their hands, with impunity and getting away with misdeed after misdeed, crime after crime. This enthroning of impunity cannot but subvert the rule of law and render credence to the belief that for those with the right connections, anything from the highest heaven to the lowest hell is possible. Given this climate, it is little wonder that Sri Lanka is becoming an oasis for the most outrageous of deeds. For instance, last week a man was hacked to death on a busy road in broad daylight. According to media reports and photographs, not a single bystander (and there were many of them) moved either to hinder the perpetrators or to help the victim. And among those specters of indifference of that hellish scene was a policeman, who according to a website, looked the other way and continued to direct traffic.

There is a connection between the indifference of those spectators and our general, societal indifference to the ongoing attacks on the judiciary.

Such atomisation of society is inevitable in countries plagued by growing despotism. Indifference and inaction are defense mechanisms ordinary people develop in order to escape persecution and survive tyranny.

In his analysis of what the long Duvalier rule did to Haiti, Claude Moise said, “A tragic mess: administrative waste, large-scale corruption, programmed insecurity, destruction of state institutions, increase of poverty, social banditry, profound penetration of society by drugs, moral deterioration, devastated national economy, and now terrorism….” (Le Matin – 15-18.10.2004). That would be our legacy, if we allow impunity to win, the impeachment-terror to succeed, and the Rajapaksas to render themselves totally untouchable.