Sri Lanka: President Prevaricates On Axing Chief Justice – Analysis

By Dr. Kumar David

It was widely believed that President Mahinda Rajapakse, or more likely the four Rajapakse siblings as a team, were determined to get rid of Chief Justice Mrs Shirani Bandaranaike (no relative of the better known Bandaranaike dynasty) by hook or by crook. A Parliamentary Select Committee (PSC) has returned a verdict, after unseemly kangaroo-court hearings that would make a kangaroo blush, that the CJ was guilty of three of the 14 charges that were framed against her.

It was thought the Speaker (Chamal Rajapakse, one of the four siblings) would rush impeachment proceedings through the full House and thereafter the President would remove the CJ and slot in a more pliant replacement, with now habitual and indecent haste.

In a surprising announcement, during a public talk on an unrelated occasion this week, Rajapakse said he intended to refer the kangaroo droppings to an independent committee which would sniff at it further and report. Laughably, he spoke as though he was not the mastermind who engineered and manoeuvred the process all along. He tried to say: “Well what can I do, 117 MPs signed a resolution alleging improper behaviour, and hence I had to proceed with the matter”; a patent distortion. What’s on everyone’s lips now is: “What’s up, why the shift of strategy?” Aside from the conjecture that he let slip a comment he did not want taken seriously, there are two possibilities. The storm of protest in the country, and possibly private warnings from international quarters (the Leader of the Opposition has hinted that Lanka’s Commonwealth membership may be at risk), have taken Rajapakse aback, and he is seeking to defuse tension and climb down. The second possibility is that for much the same reasons, he is building an additional layer of protective blubber before unsheathing the dagger and finishing off the lynch job.

A third thought, that a deal has been struck and the lady will take a settlement (How about ambassador to Franca!) and ease her way out, I doubt. She has fought with courage and tenacity, and if she now makes an unseemly private deal with her tormentors, it would be a stab in the back of the multiparty, multiracial, multi-faith campaign that has mobilised side by side with her and demanded defeat of a heinous witch-hunt.

The background

The trouble began when the CJ, who up to the time had been a Rajapakse loyalist, ruled (with two other Supreme Court judges) that the Divineguma Bill needed a two-thirds parliamentary majority since it was inconsistent with certain constitutional provisions. I have previously discussed the bill in these columns (Paper 5265 of 26 October) and explained that it was an unabashed power grab by the Rajapakses, after which 64% of the government budget would be in the hands of the brotherhood. This, of course, was not the Courts concern but certain provisions pertaining to constitutionality.

The long and the short of it was that President Rajapakse was livid. Would-be dictators, on the way to Il Duce status, become accustomed to unquestioning obedience and respond with knee-jerk wrath if crossed. One hundred and seventeen government party MP’s “signed” a petition alleging that CJ had behaved improperly on 14 counts. Some let it be known afterwards that they signed a blank piece of paper and the charges were filled in later. The obsequious mind set of Lanka’s government party MP’s is captured by Shakespeare in Henry VIII (Act 2; Sc.4), much better than I ever can:

“At all times to your will conformable,

Ever in fear to kindle your dislike,

Yea, subject to your countenance, glad or sorry

As I saw it inclined. When was the hour

I ever contradicted your desire

or made it not mine too?”

Readers interested in learning more about this pantomime should visit Colombo Telegraph web portal (http://www.colombotelegrapg.com/) where extensive commentary, time-line, charge-sheet and the CJ’s responses can be found. I feel confident I can assert, without fear of contradiction, that the proceedings were a grotesque charade. Possibly, the Kafkaesque farcicality of the sham was so glaring that even the President became alarmed and had to adopt the strategic ploy that I described at the begining. Nevertheless, whatever the side show, cynics watching seven years of Rajapakse regency will conclude that eventually, he will have his way; he will drive the dagger in.

Let me summarise the Parliamentary Select Committee (PSC) charade in a paragraph or two before moving on to speculate about future prospects for the Rajapakse regime. Of the 14 charges the first four were the most serious and dealt with financial impropriety. The CJ’s responses knocked the bottom out of the trumped-up allegations. For example she was accused of having undeclared bank accounts but it turned out that the accounts were nonexistent – the bank had introduced a new numbering system but the accusers had counted two accounts whenever this happened. She was said to have unaccounted millions, but it was shown that the monies were from her sister in Australia and transferred to a home developer for purchase of a property in her sister’s name.

One thousand pages of evidence (probably hardly relevant computer print outs) was led against her on the penultimate day, and she was given 24 hours to file a reply. Repeated requests for evidence from before this were ignored, requests for adequate time for filing a defence were ignored, deferment of proceedings requested by an opposition parliamentarian on the PSC due to ill health were denied. Two government party members of the PSC, one better known as kanu-kata (gutter-mouth), hurled abuse and she and her lawyers were forced to withdraw and take no further part in the proceedings.

There has never been a trial like this in the whole judicial history of British Colonial Ceylon and post-independence Ceylon/Sri Lanka. The regime has lacerated democracy and the walkout has thrown down the gauntlet. The shame of it is so egregious that I don’t know how much longer the government’s vote bank can swallow all this without retching. Nevertheless, this is unlikely to be of concern to the regime since it seems to have made up its mind not step down from power, even if it loses an election.

The bend in the river

Sometimes great rivers, after flowing for hundreds of miles, execute an awe-inspiring bend and stream on for hundreds more on a perpendicular course. I have seen the first great bend in the Yangtze; it’s breathtaking. (That was in happier times though I had a toss on the rocks and injured myself). I am of the view that the Rajapakse regime has now reached the bend in the river; not just this CJ incident, but the confluence of many events. Yes these rulers of our land are past the best of their times; it will be all downhill from now. It profoundly clear that king and court have reached a great turn in the river of fortune; from here it will be all rapids and cataracts.

The last quarter of year 2012 I think will go down in the records as the point at which the beginning of the end of the Rajaapkses commenced. Though downhill, we know the death rattle of expiring souls is protracted. If asked to forecast I will say the period 2013-15 will see the regime driven into a corner and its authoritarian Corporatist ambitions wiped out. The obstacle to actual fall is not any redeeming feature, but absence of a credible alternative, whether liberal-democratic or leftist.

The beginning of the end was the Provincial Council elections in the Eastern Province in September when the government lost morally, and would have lost on the record but for widespread malpractice. Some trace the origins of the decline to the debacle in Geneva when the UN Human Rights Council condemned the Colombo regime. The LLRC Report threw the military a lifeline with its findings, but loaded the government with the deadweight of recommendations that sank it. Then came the roadblock, the Divineguma Bill, and finally the difficult witch-hunt of the Chief Justice. The confluence of so many negative events has coincided with difficult economic circumstances; growth is down and falling, inflation high and rising, and the foreign investment climate cloudy. I do not wish to comment on the mood of the crucial Sinhala-Buddhist lower middleclass and petty-bourgeois voter, because in the prevailing atmosphere of extreme patron-client politics in Sri Lanka it is not easy to judge. What I do not see is any silver lining for the government in the political or economic domain; tourism may continue to prosper but that’s far from adequate.

CJ needs to expiate her sins

I must not conclude this piece leaving the impression that the Chief Justice is a paragon of virtue. She has made her mistakes, the most serious of which pertain to the Eighteenth Amendment to the Constitution and the benefits that her husband once enjoyed from President Rajapakse. 18A was pernicious and removed term-limits for presidents and carried provisions strengthening the already excessive powers of the Lankan presidency. There is no stretch of imagination by which it should have been incorporated in the constitution without a two-thirds majority followed by a referendum. A bench of the Supreme Court, presided over by the CJ, Dr Mrs Bandaranaike, in its constitutionally mandated role, held that neither was necessary. This is a grievous blemish on her name and it is entirely proper that she makes proper expiation, oblation and penance for her sin.

Secondly, though it is true that the CJ and her husband are two separate legal persons, it is hard to resist grave disquiet that her husband was appointed to the Chairmanship of a state bank by the President and was later removed for alleged improprieties. There is a bribery case now in progress before the courts of law. The relationship between the regime and the gentleman about transactions leave an Ali Baba and the Forty Thieves taste in the mouth. If you dance with the wolves be prepared for the werewolves at your throat, and the throats of your family members.

Therefore the fight in Lanka is not to save the CJ per se, but to protect the democratic rights of the public at large from politically motivated witch-hunting; blemishes of the victimised individual or his/her relatives, are only a matter of tangential concern.