By Tisaranee Gunasekara –

“It is therefore apparent that these charges are baseless and groundless… We hope that with the true facts being revealed, the public will realise the evil perpetrated on her.” The Interim Response by the lawyers of the Chief Justice (quoted in the Colombo Telegraph)

Last week, the popularly elected President of Egypt, Mohammed Morsi, issued a Constitutional Declaration barring judicial authorities from overturning any decision made by him. Seeing in this measure an attempt to undermine the judiciary and place the president above the law, the country burst out in protest. Egyptians of all walks of life and every political persuasion, and none, spoke and demonstrated against the President’s dictatorial move. The fact that some of the judges Mr. Morsi is targeting are Mubarak-appointees did not deter the protestors. Pro-democracy activists ranged themselves alongside one-time Mubarak allies, because they realised that the threat was not to individuals but to judicial independence, the judiciary and democracy itself.

Having lived, always, under authoritarian rule, the people ofEgyptseem to know the value of democracy. They are readier to protect democracy than those who have not experienced the full horrors of despotism, first hand. Like us, inSri Lanka.

We know that the impeachment is an assault on the judiciary itself. We know that the impeachment will not be a fair trial and that the UPFA majority in the Parliamentary Select Committee (PSC) will find the Chief Justice guilty.

We know that the next chief justice will be nothing more than a Rajapaksa servitor. We know that under such a chief justice, the judiciary will become as much of a Rajapaksa tool as the parliament, the army or the bureaucracy.

We know that a judiciary under Rajapaksa control will make us more insecure. We know that Sri Lankasans rule of law will become the rampaging grounds of the likes of Mervyn Silva and Duminda Silva.

We know all this and yet our response is far from adequate. Perhaps we will understand the full value of even a flawed democracy and a semi-independent judiciary only after we have lost both.

PSC: Quintessentially Unjust

The Parliamentary Select Committee (PSC) is a deeply flawed instrument by its very nature. Its composition prevents it from functioning as an instrument of justice. Given its UPFA majority, the PSC cannot act objectively; nor can it decide on the basis of evidence. The Rajapaksas are intent on impeaching the CJ and the seven UPFA members in the PSC cannot dissent from that Rajapaksa dictat.

The manner in which the PSC has conducted itself so far demonstrates its biasness. The Supreme Court requested, in the interests of the good relations between the legislature and the judiciary, to delay impeachment proceedings until the SC has had time to determine on the constitutionality of the Standing Order 78A. The PSC refused to postpone the impeachment proceedings, even though a few weeks delay would not have mattered to the country or the people.

The PSC also refused the CJ’s request for more time as her lawyers point out in their interim response, “We regret that our client was not provided with more time. The letter dated 14/11/2012 was delivered to our client’s official residence at approximately 7pm, asking her to respond to the 14 charges by the 22/12/2012, which is approximately one week’s time” (quoted in dbsjeyaraj.com).

The impeachment is being pushed at breakneck speed, because the Rajapaksas are in an almighty hurry to get rid of this CJ.

The President, though out of the country visiting Kazakhstanand the ailing PM in an elite UShospital, is keeping a hands-on involvement in the impeachment drama: “Whilst in Washington, Rajapaksa has been busy on the telephone calling Colombo. One of the issues that has drawn considerable attention is the impeachment motion against the Chief Justice, Shirani Bandaranayake. Both Chief of Staff Senarath and Monitoring MP Gunawardena have been busy helping the President to speak with ministers and officials” (The Sunday Times – 25.11.2012).

The CJ has asked the PSC for a reasonable time period to prepare her full defence. That is a right which is available to any Lankan citizen, from the highest to the lowest, a right no Lankan court can deny. But the PSC decided to deny the CJ even this basic right. She will have just two weeks to prepare her defence. That again is a sign of the Rajapaksa urgency and the PSC’s total subjugation to Rajapaksa will.

According to media reports, none of the policemen at the parliamentary complex saluted the CJ when she arrived to appear before the PSC. Those policemen know that the PSC is just a sham and that the fate of the CJ had been decided months ago, elsewhere, by others.

With the impeachment will begin the new and dangerous practice of using the Parliamentary Select Committee as an instrument of Rajapaksa will and a fig leaf for Rajapaksa abuses. The PSC will be used to by the Rajapaksas to enhance their powers and to destroy their opponents, to strengthen familial rule and to ensure dynastic succession.

According to Basil Rajapaksa, “….a solution to the national question has to be found with consensus among all the parties through a parliamentary select committee” (Daily Mirror – 7.11.2012). Just as one PSC will be used to lynch the Chief Justice, another PSC will be used to replace the 13^th Amendment with a 19^th Amendment which will empower the Rajapaksas still further. The resultant obliteration of provincial devolution will alienate the minorities beyond measure and enable the second coming of the LTTE, in whatever guise.

In yet another letter to President Rajapaksa, V Anandasangaree, the Leader of the TULF, warns, “Without knowing the history of the ethnic problem they create a lot of new problems for you and for the country. I am in particular referring to the sudden demand by some to do away with the 13^th Amendment. If you do not cry halt to this new development, it may turn out to be a Frankenstein monster, which you yourself will find difficult to control”.

Monsters do not fear monstrous outcomes. Vellupillai Pirapaharan didn’t. There is no reason to think the Rajapaksas will either.

Go to the Public

According to Jose Luis Borges, “The lies of a dictatorship are neither believed nor disbelieved; they pertain to an intermediate plane, and their purpose is to conceal or justify sordid or atrocious realities…” (L’Illusion Comique).

Similarly, the PSC’s real purpose is to provide a legal/constitutional veneer to what is essentially a witch trial. But that aim cannot be achieved, if the public finds out too much about the nature, tone and tenor of the PSC proceedings. That is why the regime has decided that the PSC should conduct its business under a cloak of secrecy.

Having vilified the CJ in public for months, the regime now wants the CJ to respond to those vilifications in private, and in secret. If the impeachment travesty is enacted in the full view of the public, the people will see it for what it is: an act of vengeance by a group of angry men against a woman who finally refused to yield to their illegal and unconstitutional demands. And the public sympathy, by and large, will be with the CJ and not her persecutors.

That is why the CJ must continue to take the public into her confidence and share her side of the story with the pubic. Making the interim response of her lawyers public was an excellent start, as was her conduct during the first day of the impeachment travesty. If she maintains this mode, she will be able to emerge for the impeachment drama with her reputation intact.

Chief Justice Shirani Bandaranayake may not be able to save her job. But former chief justice Shirani Bandaranaike has the potential of becoming the new political star in the none-too bright opposition firmament. Her manner of appearing before the PSC on the first day hints that she is neither unaware of this possibility nor wholly averse to it.

And the Rajapaksas, having resolved the Chief Justice problem as planned, might find themselves saddled with a far more intractable Shirani Bandaranayake dilemma.