By

Don Manu

Perhaps triggered by Mahinda Rajapaksa throwing down the gauntlet two weeks ago and threatening to topple the government this year, the Sirisena faithful drew ranks last week and proceeded to lay the groundwork for The Empire to strike back with a vengeance.

The first was a line of defense. It was to erect a parapet wall round the SLFP fort and hang a ‘No Vacancies till 2025” board on it and thus bar the arrival of a usurper at the palace gates with a power itch to cross the moat presumptuously and claim title to the castle.

The party’s secretary, the Rajarata knight Duminda Dissanayake took it upon himself to forestall such an eventuality by springing the proposal at the SLFP’s committee meeting last week that called for the appointment of President Sirisena as the party’s presidential candidate at the 2020 presidential election.

This was put forward by Mr. Dissanayake irrespective of whether, as he said to his colleagues, Maithripala Sirisena liked it or not, and the committee endorsed it unanimously.

This proposal for Maithripala Sirisena would have been like crossing the Rubicon in reverse. He would have well remembered how he had on January 9th two years ago declared his intention to be only a one term president. He would have recalled also how on November 16th 2015, he had solemnly declared at Ven Sobitha’s funeral, before the coffin was consigned to the flames, how he would act to turn the monk’s vision to reality.

In his funeral oration he declared, “I pledge before the hallowed mortal remains of this venerable and esteemed monk, to establish a just Yahapalana government in this country, to found a democratic society in this country, and, in order to create a just and equitable social system in the country, to take all the steps I can take and should take to abolish the executive presidency as desired by the Ven Sobith Thera.”

But the best laid plans of monks and men can be displaced by fortuitous circumstances.

It would indeed have been galling for him to now make a U turn but he would have realised that the political tide had overtaken his own inclinations and drowned them in the process. That, like the Volkswagen which packs its engine in the boot, so would he have to shove his promise to be only a one term president in the dickey.

Beside his party was clamouring for him to re-contest. As S. B. Dissanayake stated this week, “the party has made a decision and the president cannot say no”. Perhaps, in his final term, if he is reelected in 2020, he can keep the pledge he made before Ven Sobitha’s coffined corpse and drive the final stake into the very heart of the vampire executive presidency and lay it finally to rest without any chance of resurrection even as a mutilated phantom.

The second was a line of attack. It came with Sarath Amunugama unveiling the President’s secret weapon of mass destruction, the first draft of the Criminal Justice Commission (CJC) bill, which can be a weapon of deterrence or a weapon of annihilation.

It was the plan to take a short cut, go off the beaten track from the long and laborious judicial process and bring to book those guilty of corruption and abuse of power. It would allow him to fell two birds with one stroke of his inked quill. With only three years left to keep his promise to the people to crackdown on corruption he will be able to finally show results. And simultaneously exile those belligerent but masked in guilt from the political landscape and leave the field clear, come 2020.

But the short route of expediency also has its pitfalls.

In the first instance the proposed CJC bill will have retrospective effect which though permitted by the constitution is often frowned on by jurists as one that goes against the grain of justice. In the second instance, it raises selective law enforcement to a higher level and enables the president to be the sole arbitrator to determine in his opinion as to when and on whom the axe should fall. It empowers him with the right to appoint all the members to the criminal justice commission.

The only silver lining is that the commission must comprise of sitting or retired judges of the Supreme Court or Appeal Court which at least will give it a semblance of judicial authority and independence but the provision to also include in the commission, an attorney-at-law with over 30 years of practice tends to dull the cloud’s edge. Those in black coats and black ties whatever their pedigree can be accused of partisanship where at least those purple cloaked and ermine wigged are presumed to be more independent and unprejudiced in their judgments.

In a nutshell what this draft of the proposed Criminal Justice Commission Bill envisages is:
to empower a committee comprised of the president’s men and women to inquire into offences the president in his opinion considers to have been committed at a time before or after the commencement of the Act
concerning corruption in general but of such a nature which, the President holds to be in his opinion, is of national importance or endangers national security or national interest;

when the president in his opinion holds that the practice and procedure of the ordinary courts are inadequate to administer justice for the purpose of securing the trial and punishment of the persons who committed such offences:

and then for that committee to act freely, without the fetter of sticking to the rules of procedure and evidence ordinarily applicable to a court of law, but guided only by the principles of natural justice,
to sit in judgment and pass decree on the innocence or guilt of the person so arraigned and to pass sentence, short of the death penalty,which the Supreme Court would have done had the matter come up before them

And that verdict to be final and conclusive and be unchallengeable in any court of law in the land.
And if need be, for parliament by a two third majority to deny that person his or her civic rights for a maximum period of seven years.

That is generally the present form of the proposed bill; and, though it was accepted unanimously last Tuesday by the ministers, it was also wisely decided to seek the opinion of the Attorney General as to whether it will be in conflict with the Constitution.

But the question is whether it will be in conflict with public opinion. Will it gain the air of legitimacy in the public eye?

True, the president’s predicament is understandable, even to be pitied. And the majority will appreciate his efforts to see jailed those guilty of the mega corruption the president and Ranil’s UNP accused the previous regime of before they were elected to power. Though they waxed eloquent and tarred the whole Rajapaksa regime as corrupt beyond redemption, no single high profile conviction has still been wrought to redeem them from the allegations they made then. And that must worry them.

But recourse to extra judicial mechanisms to expedite justice has had a history of backfiring. Those found guilty by bodies appointed outside the normal judicial system, have demonstrated a tendency to emerge as martyrs. Often the process serves to cleanse them of their sins and elevate them to national heroes, as happened to Mrs. Bandaranaike when J. R. Jayewardene brought his commission and, upon its findings, stripped her of her civic rights, thus ruling her out of the equation when he re-contested in 1982.

And President Sirisena will do well to bear the past in mind before he assents to give his blessings to such a piece of legislation that will enable him to raise a two edged sword. He will either triumph using it or fall on it

Courtesy:Sunday Times