{"id":11194,"date":"2012-09-29T20:39:02","date_gmt":"2012-09-30T00:39:02","guid":{"rendered":"http:\/\/dbsjeyaraj.com\/dbsj\/?p=11194"},"modified":"2012-09-30T00:23:46","modified_gmt":"2012-09-30T04:23:46","slug":"can-the-judiciary-resist-the-rajapaksa-tide","status":"publish","type":"post","link":"https:\/\/dbsjeyaraj.com\/dbsj\/?p=11194","title":{"rendered":"Can The Judiciary Resist The Rajapaksa-tide?"},"content":{"rendered":"

\"\"<\/a><\/p>\n

“the real tyrant is a man who sacrifices a whole nation to his ideal or his ambition”. – Camus (Caligula)<\/em><\/p>\n

By Tisaranee Gunasekara<\/strong><\/p>\n

S<\/strong>eparation of powers and power-devolution are alien to Rajapaksa thinking and inimical to the Dynastic Project.<\/p>\n

History\u2019s watershed moments are generally identifiable only with hindsight. Sri Lanka might be experiencing an exception to this rule, as a government scheming to \u2018overstep its proper powers\u2019 is being resisted by a Judiciary trying to retain its constitutional role and democratic relevance.
\n
\nGathering 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.<\/p>\n

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 \u00fcber-powerful president from staying on beyond two terms. J. R. Jayewardene had to leave after two terms. Chandrika Bandaranaike Kumaratunga\u2019s attempts to elongate her political life were defeated by the PR system.<\/p>\n

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.<\/p>\n

The Ruling Siblings\u2019 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.<\/p>\n

Thus the immediacy and import of the Divineguma Bill.<\/p>\n

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 \u2018Corporation\u2019 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.<\/p>\n

The regime had to abandon each of these measures due to judicial intervention and public opposition.<\/p>\n

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.<\/p>\n

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 \u2018discretionary powers\u2019 to make top judicial appointments. The 17th Amendment removed this \u2018discretionary power\u2019 but it was \u2018re-established by the 18th Amendment\u2019 he admitted.<\/p>\n

Last week Wijedasa Rajapaksa, the President of the Bar Association, made a similar point: \u201cThere is too much power concentrated on the executive. The leaders have become arrogant. They seem to think that everybody should succumb to their power\u2026\u201d (Daily Mirror \u2013 25.9.2012). Mr. Rajapaksa also identified the recent Supreme Court determination on the Divineguma Bill as the immediate reason for the executive\u2019s current ire against the Judiciary.<\/p>\n

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.<\/p>\n

Just hours after his Brother, the Speaker, announced the Supreme Court decision regarding the Divineguma Bill, Minister Basil Rajapaksa \u201cassured hundreds of agitators that the proposed Divineguma Department would be established under an Act of Parliament irrespective of whatever the constraints were\u201d (Island \u2013 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.<\/p>\n

Targeting the Judiciary?<\/p>\n

Fernand Braudel in his seminal work, \u2018A History of Civilisations\u2019 posits that the word \u2018civilisation\u2019 in its plural form is used to denote \u2018the characteristics common to the collective life of a period or a group\u2019.<\/p>\n

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\u2019s 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.<\/p>\n

Soon after the parliamentary election of 2010, Mr. Rajapaksa, in a thought-provoking interview, expressed \u201cconcern that a section of officialdom could help the separatist cause by trying to appease foreign governments and some funding agencies\u201d and highlighted the \u201cpivotal importance of the Judiciary, particularly the Attorney General\u2019s Department, in supporting the government\u2019s efforts to suppress terrorism\u201d (The Island \u2013 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.<\/p>\n

That time is here.<\/p>\n

The Divineguma Bill will be approved by all UPFA-controlled provincial councils. It will encounter impediments only in the East and the North.<\/p>\n

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.
\nThe 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.<\/p>\n

Thus the urgent Rajapaksa need to suborn the Judiciary.<\/p>\n

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. \u201cThe 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\u2026 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\u2026 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\u2026\u201d (Ceylon Today \u2013 26.9.2012).<\/p>\n

The Rajapaksas\u2019 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.
\nWill the Judiciary save itself from irrelevance by preventing the further erosion of democracy and rule of law?<\/p>\n

The future awaits. Courtesy: The Sunday Leader<\/em> <\/p>\n

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“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\u2019s watershed moments are generally identifiable only with hindsight. Sri Lanka might be experiencing an exception …<\/p>\n

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