Sun, 2012-10-21 02:47 — editor
By Tisaranee Gunasekara
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.
“The most widely held theory of politics is also the
simplest: the powerful get what they want”. Dani Rodrik
(Project Syndicate – 2.5.2012)
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.
Former CJ’s Revelations
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.
The Divineguma Bill and the 13th Amendment
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.
- Asian Tribune -
