By Rajan Philips –

Mrs. B & Shirani B: How male politicians could get rid of them and get away with it is part of the story of sixty five years of independence  

Rajan Philips

There are similarities and continuities between the impeachment and banishment of Chief Justice Shirani Bandaranayake from the Supreme Court and the disenfranchisement of Mrs. Sirima Bandaranaike and her banishment from Parliament more than thirty years earlier. The obvious common ground is that Sri Lanka’s male politicians managed to get rid of two women at the highest levels in public life by foul means. First, it was the world’s first female Prime Minister, and now it is Sri Lanka’s first female Chief Justice. Women could justifiably say that hell hath no fury like Sri Lankan male Presidents scorned!

It is not my purpose to compare and contrast the two banishments, but to see if we could understand how Sri Lanka as a society and a polity could have come to allow these almost unique banishments which hardly have a parallel in any other country. At the social level, it is not difficult to see the hand of patriarchy at work. It is not a coincidence that the first political leader and the first Chief Justice to be disposed of by an Act of Parliament and a presidential order were women. It is inconceivable that men would have acted so cavalierly against fellow men.

Mrs. Bandaranaike entered politics as a residual heir (i.e. the absence of a male successor, presaging similar residual successions in other South Asian countries) but she soon established herself as a political leader in her own right. Shirani Bandaranayake climbed her way to the top through the hard work of professional education and accreditation. Although her appointment from academia to the Supreme Court was unusual in Sri Lanka, it is not uncommon at all in many other countries with successful, competent and independent judiciaries.

Remember also the old, not necessarily accurate, adage that only bad lawyers end up on the bench! The appointments to superior courts typically come from career judges and practising lawyers. The system worked in Sri Lanka and elsewhere because, as long as the really bad lawyers were not appointed as judges, the better lawyers who were not appointed to the bench could go on with their careers amassing wealth and fame all the while. Quite a few of them would politely decline a judicial appointment. During British colonial rule before most of us were born, a famous Madras Tamil Brahmin lawyer and a man of great prominence and influence in all of India, Sir CP Ramaswamy Iyer, declined his nomination to the bench saying that he would “rather speak nonsense for few hours a day than hear nonsense all day long!” The wag would add that the fees for speaking nonsense have always been considerably higher than the salary for hearing it.

Historically, about a third of the US Supreme Court judges have had no law degrees, but that was mostly in the 19th century and it is unthinkable now with the informal but institutionalized involvement of the American Bar Association in the ranking of judicial nominees for presidential selection. The Sri Lankan government deliberately bypassed another opportunity to establish a proper process for identifying, ranking and selecting superior court judges. Instead, it has made arbitrary firing and hiring of judges a constitutional routine. One of the reasons for establishing Labour Tribunals separate from the courts more than 50 years ago in Sri Lanka was the class prejudice of judges against workers. Now Sri Lankan judges may have better luck at a Labour Tribunal than in their own courts, subject of course to future Standing Orders.

Patriarchy and phallic sovereignty

No matter what their route to the top was, both Mrs. Bandaranaike and Shirani Bandaranayake became disposable chattels in the end by conniving men. While it could be argued that traditionally Sri Lankan women have had a better status than women in many other societies, there is no question that patriarchy has been a powerful dynamic in our society as in every other society. Politically, women and men in Sri Lanka received the right to vote at the same time in 1931 as a colonial extension of the benefits of political struggles in Britain. However, Sri Lankan male leaders crafted citizenship laws on the morrow of independence not only to exclude the Indian plantation workers from citizenship but also to disallow female lineage in citizenship claims by even indigenous Sri Lankans.

Those who opposed the discriminatory and even inhuman laws from the standpoints of class and ethnicity did not raise the gender question. That question came later thanks to the work of feminist scholars. The laws have since been rectified even as the remaining planation Tamils have been granted citizenship rights. At the same time, and despite great strides by Sri Lankan women in education, employment and the professions, their political representation continues to be abysmally low.

Women of the working class underpin the three main pillars of the Sri Lankan economy: the tea industry, garment manufacturing and Middle East remittances. Women workers carry more than the double burden of home and work. Women on the plantations have been toiling for well over a century, including three decades of statelessness, and are still confined to the bottom of the social pyramid. Women in the garment factories suffer separation from home in addition to privations at work. The harrowing life and death tales of Sri Lankan women working as maids in the Middle East are never ending. Add to them the wails of war widows and orphans of the rural under classes on all sides, and the question as to what Sri Lankan women get in return for propping up the phallic sovereignties of the Sinhalese and the Tamils, that the LTTE and the government fought about, is the biggest unasked gender question of our times.

The problems encountered by professional women are different and they stem from the incongruities between the public sphere of work and the private sphere of home. Sri Lankan women have been competitively successful vis-à-vis their male counterparts in higher education and the professions. Those who study marital practices in South Asian societies have noted the difficulties professional women face in finding compatible partners. Higher the qualification of a woman, more exorbitant is the dowry needed to find a spouse of equal or higher qualification, more so in India than elsewhere.

More often than not for professional women the spouse becomes a burden. I have written earlier with some sympathy about the situation of Sri Lanka’s first female Chief Justice in having to bear this burden in public. The government did not fool anyone when Minster Tissa Vitarana gullibly revealed what the President had apparently confided to him and other party leaders, that the Chief Justice’s husband was appointed to the National Savings Bank “under her specific request” and because “President Rajapaksa did not want to antagonize her.” And pigs can fly, Minister Vitarana could have added!

There were others who were concerned that such spousal favours have never been granted in the entire history of the Supreme Court. But let us also not forget that there has been only one female Chief Justice in the same entire history of the Supreme Court and the government got rid of her. For male justices with staying-home wives, spousal favours are obviously not an issue. But doing family and extended family favours to male justices both before and after retirement has become disturbingly common under this government. Yet, government parliamentarians are not corralled to sign petitions against these transgressors, and political leaders and judges get away after respectively giving and receiving improper favours.

Post-independence failings – first thirty years

“I can do anything and get away with it”, was what Dr. Colvin R. de Silva said of what he saw as the new attitude of impunity in the country when he returned home after independence from his six-year political exile in British India. Prior to that, he noted, the general attitude was one of compliance and conformity with rules and processes. Colvin made this remark in the course of a public lecture on the No Confidence Motion that the LSSP brought against Prime Minister Mrs. Bandaranaike in late 1975. The LSSP was by then out of the United Front Government and in the more familiar benches of the opposition. The No Confidence Motion was in regard to allegations over land ownership disclosures by Mrs. Bandaranaike during the implementation of the Land Reform legislation

Colvin’s point, in the public lecture, about ‘doing anything and getting away with it’ was an insightful observation of the general culture of impunity that began infecting the body politic and society as far back as the time of independence and by the 1970s was not sparing even the Prime Minister. Admittedly, it was an obiter observation, or a passing remark, but one that I believe is a useful insight in retracing some of the deteriorations that ultimately led to the sacking of Sirima Bandaranaike and Shirani Bandaranayake. As a general thesis I would argue that the rot started as far back as independence, that it has destroyed most of our political and administrative institutions over the years, and that the judiciary is the last of the bastions of the state to be cored and corrupted by the political class before our very eyes.

To anticipate and answer the obvious rejoinder to this thesis that it is tantamount to ranking the colonial experience over post-independence experience, I would further argue that the colonial experience included the positive development of institutions for administering justice, for civil administration and finally for representative democracy within a stifling framework of colonial dependence. The post-independence experience while benefitting from the removal of the colonial burden has dramatically failed in preserving and enhancing the positive institutional legacies of colonialism. I am not saying anything new here.

Dr. NM Perera was understandably more original and eloquent in defending our experience of the Anglo-Saxon parliamentary system against JR Jayewardene’s replacement of it by a hotchpotch presidential system. I have recounted here earlier in these columns NM’s specific criticism of “human imperfections and perversities” that vitiated the constitutional protection of the independence of judiciary, a process that started under Felix Dias, accelerated under JR Jayewardene and is now climaxing under Mahinda Rajapaksa.

According to Hector Abhayavardhana, the first legislative experience of independent Sri Lanka, the disenfranchisement of the plantation workers, turned the state that was set up for a future nation into a communal caricature. Since that time we have had as many bad laws as there have been good laws, perhaps more bad laws than good ones in recent years. Every amendment to the present constitution, with the exception of the imperiled 13A and the abandoned 17A, belongs to the bad category. The once exalted civil service is now in tatters. All of us have been living through the disastrous deterioration after independence of everything that began as a public good under colonial rule, viz., transportation, education, health and housing.

In last week’s Sunday Island, we were treated to Sir John Kotelawala’s inimitable candour that the political leaders of his generation were not after money because they did not need any, but they were not innocent of the charge of corrupting the system for the sake of power. I would leave it to the better imagination of the reader to figure out how Sir John would have described the leaders of our generation who covet both money and power, use any means to acquire them and every means to get away with it.

Regi Siriwardena, in his memoir of experiences while “Working Underground” with the LSSP during World War II years, contrasted the behavior of the police during the colonial period with that in contemporary times. In the political sphere, he described the confrontation between the colonial police and LSSP rebels as “a contest played according to certain rules”, with the police observing “liberal legal norms” and the LSSP rebels influenced by “conceptions of revolutionary morality.” The children of 1956, on the other hand, who have since constituted the police, army, the JVP and the LTTE “are the children of a different political culture”, uninformed either by liberal norms or revolutionary morality.

Regi also referred to another dimension in the old contest, one that Hector Abhayvardhana, AJ Wilson and Ranjith Amerasinghe have also identified: the LSSP leaders, as well as the Communist Party leaders, were not “disgruntled men” but successful achievers who were equally at home with revolutionary morality as well as liberal democratic norms. As revolutionaries they stood for the overthrow of the system, but they did not confuse revolution with manipulating the system for personal power and material benefit, or the wanton freedom to “do anything and get away with it.” It was not an accident that NM was “the jewel of parliament” as Pieter Keuneman described him, and Colvin turned even his bow before the judge a part of his argument. Colvin characteristically differentiated between the valid concept of “socialist democracy” that he stood for and the non-concept of “democratic socialism” that JRJ espoused. NM and Colvin turned out to be the only serious defenders of parliamentary democracy when JRJ started its dismantling while professing to protect it.

All downhill after 1977

To go back to the 1975 No Confidence Motion, it was LSSP’s last act in parliament and no other political party has used the device of the No Confidence Motion as effectively as the LSSP did to hold governments accountable and answerable in parliament between elections. Elections are the ultimate verdicts of voters on the government, the opposition, all other political parties in parliament and parliamentarians, collectively and individually. That was how the system created by the British worked until 1977. Everything changed after that year, and JR Jayewardene turned the system on its head by going after the head of his defeated political rival, Mrs. Sirimavo Bandaranaike, through the extra-parliamentary mechanism of a Special Presidential Commission to investigate alleged abuses of power by her and her government ministers and officials. And everything has been going downhill ever since.

Rather than the Opposition holding the government accountable in parliament, the government of the day began to harass a defeated opposition political leader for her actions as Prime Minister. Mrs. Bandaranaike challenged the political witch hunt in the courts and the Court of Appeal under Section 140 of the new Constitution granted her the Writ of Prohibition against any retroactive investigation into her actions as Prime Minister. In a move that all of us are now only too familiar with, the Jayewardene government through legal subterfuge rendered the Court’s ruling null and void and forestalled any further court injunction. Thus came into being the First Amendment to the Constitution to frustrate a court ruling that was in favour of Mrs. Bandaranaike.

While Mrs. Bandaranaike and others arraigned before the Special Presidential Commission fought their legal battles, the voices of political protest came only from NM Perera and Colvin R. de Silva. Given their extraordinary backgrounds, their commentaries were not just political protestations but exceptionally substantial in content and they are duly cited in AJ Wilson’s monograph on the 1978 Constitution: “The Gaullist System in Asia.” The legal community and the judiciary, still basking in the glory of the UNP’s grand victory in 1977, chose to sit on their hands, and to see no evil, hear no evil, and speak no criticism. Not long after, the government started targeting judges who were deemed difficult, dismissed and reappointed the entire Supreme Court over the Sixth Amendment, and finally subjected Chief Justice Neville Samarakoon to the ignominy of an impeachment.

Fast forward 30 years, Chief Justice Shirani Bandaranayake has been forced endure both the impeachment and the banishment. The Executive and the Legislature insulted and humiliated the Supreme Court and the Court of Appeal like never before. A vigorous LSSP-like opposition in and out of parliament would have forced the government to at least think twice before daring to proceed with impeaching and removing the Chief Justice. There is no need to pulverize Ranil Wickremesinghe yet again for his zombie-like politics. But the resulting vacuum has been filled by political banalities ranging from anti-western civilizational assertions, to socialist cynicism, to silly optimism.

The civilizational school saw impeachment as a new strike against the West – it’s alright to cut Lanka’s nose to spite the West. Unlike NM or Colvin, the socialist cynics dismissed the impeachment crisis as a boring manifestation of a perennial liberal democratic crisis. To the ultimate optimist the impeachment was nothing more than an additional step in a long and incremental slide towards deep state and central authoritarianism, and the whole slide can be simply reversed come next election. No worries, says the optimist, because all Sri Lanka needs to do is find an Obama from its 20 million people to be its next President. What is common to all three banalities is letting the government get off the hook too easily, and get away without consequences.