By Laksiri Fernando –

Dr Laksiri Fernando

It was in fact a sad day for the whole of Sri Lanka and all Sri Lankans even living abroad. Some may rejoice with short-sightedness or blindness because of some political affiliation or past loyalty on the order to remove the Chief Justice. The propaganda was so vicious and so venomous that some people must have believed that the Chief Justice was a villain or a conspirator. On the contrary her resistance and defiance were admirable in the midst of all the odds and vicious and violent campaigns.

The indecent hurry shown by the regime to serve the impeachment order has already demonstrated the vicious political intentions behind the whole drama. Even in Saudi Arabia it took over a year to implement the execution order of Rizana Nafeek. Within hours after the thoroughly unconstitutional Parliamentary debate, the President Mahinda Rajapaksa has signed the removal order in Sri Lanka. It is the same President who talked about appointing an Independent Committee few weeks ago before he takes any decision on the impeachment initiative. What happened to that Committee, Mr President, one may ask?

No one has to believe that the CJ has been white as a lily, as SL Gunasekera has pointed out. That has never been the issue. She should have been given a fair hearing and a fair trial. That was the issue. That was her pleading also. Of course one can also look at the charges or the facts presented by the accusers. But no one could come to a final conclusion without a fair judicial process on such matters. Whatever the mistakes that she has been implicated of are not one sided. The government is equally responsible, if not more, for those deviations. This is a Chief Justice appointed by the President just one year ago and called Ape Minissu or our people. As Prof Tissa Vitarana, a Minster of the same government once correctly remarked, this questions the procedure or the validity of appointments by the President.

The whole governing system is full of ‘conflicts of interest’ and dubious dealings par excellence at the expense of public interest. If the interests between the CJ and her husband or the CJ and her sister were in conflict on several matters, no doubt, how you could resolve the conflicts of interest between the President and the Speaker, the President and the Defence Secretary and the President and a key Minister of the same family? How can the President or the others be impartial and fair to each other or to the public? How can you prevent them being cohort in misusing and abusing  political power as a clique or a family since many others in the same family have been appointed into key positions in the governing system?

No one can say that we need higher standards in the judiciary, but not necessarily in politics. This is not correct although politics has been overwhelmingly accepted in Sri Lanka as ‘dirty’ and dirty to the core. ‘Nepotism’ is more dangerous in politics than in any other public sphere especially when the networks created are to do with holding and amassing power if not wealth. This is exactly the case in Sri Lanka today. This is not simply a matter of few members in the same family engaging in politics or holding even some key positions i.e. DS and Dudley, JR and Ranil and Chandrika and Sirimavo etc. As we know, in the past, those members in the same family were not even ‘seeing eye to eye’ with each other i.e. Chandrika and Anura.

This family is however different. We have come to a new era in family politics surpassing all the others. This is perhaps what it meant by strengthening the ‘family institution’ in the Mahinda Chinthana Manifesto! It is right there at the beginning of the so-called Chinthana. There is a clear pattern of control by the family even far exceeding a country like North Korea. This is good for an illustrative organigram or organizational chart of this family rule although I don’t have time now to do so.

At the top of the ‘pyramid’ is the President, Mahinda Rajapaksa, perhaps becoming only a figurehead or Bonaparte. Then on the left side you have the all-powerful Defence Secretary, Gotabhaya Rajapaksa, with ‘dwifungsi’ or dual-functions of the past Indonesian style military rule. He is encroaching into the economy and the public service and already his ministry is called the ministry of ‘defence and urban development.’ Kusal Perera has given a detailed exposition of the military encroachment in the system recently. Then in the middle is Basil Rajapaksa with newly acquired Ministry of Divineguma controlling virtually the whole of the economy. Even he can now expropriate private property under an act passed over a year ago in the name of development. This is something Dr Harsha de Silva time and again emphasized as a major danger. Property might be acquired for the family rule. Then on the right is Chamal Rajapaksa, as the Speaker, now virtually controlling the entire Parliament encroaching into the sphere of the judiciary. This is the rule of ‘Aiya-Malo.’

What more to control? Only the judiciary is left. Could anyone dispute this? I am not the first one to say about the family rule, but had some restraints myself as an academic to say it so bluntly before. Tisaranee Gunasekara has elaborated on the matter several times quite eloquently. Now the circle is complete and the red-line is passed. I was also partly ashamed, to reveal frankly, as a former supporter of the UPFA to see the dramatic change aftermath of the victory over the LTTE. The victory of course was necessary but the nature of the victory indulging in war crimes and blatant human rights violations perhaps is one reason for the present dramatic change. These things could happen in politics and the important necessity is for the former supporters of the UPFA to understand the change and understand it as quickly as possible. It is a qualitative change and not a marginal one anyone could ignore. The family rule is their defence mechanism. At least three brothers might be directly responsible for many of the atrocities and the other brother is hell bent on saving the siblings.

This is no longer a UPFA government in its true meaning. This is a Mahinda-Gotabhaya-Basil-Chamal (MGBC) government. All those who blindly supported the utterly unconstitutional unwritten ‘impeachment motion’ are mere puppets minus the two family members (Basil and Namal).

Let me give the most recent example in respect of the impeachment. According to the UNP General Secretary and MP, Tissa Attanayka (Daily Mirror, 13 January 2013), there was no ‘impeachment resolution’ in the Order Paper of Parliament although there was a scheduled debate on the PSC Report. As reported by the Daily Mirror, “He [has] said Parliament had not made any request for the President to remove the Chief Justice, as such, a resolution was never included in the Order Book.” Then who requested the removal of the Chief Justice? Apparently it was the elder brother of the President, the Speaker, Chamal Rajapaksa! His word is the Order Paper or the Address of Parliament. This is the consequence of ‘Aiya-Malo rule’ (brothers rule) and not the rule of law of the country or the constitution.

This is not the first time when a key Rajapaksa appointee was demoted/removed after stepping out of line and then hounded upon. But this time it will be different. First it was the Army Commander, Sarath Fonseka and now it is the Chief Justice, Dr Shirani Bandaranayake. Both fell foul with two Rajapaksa brothers; first one with Gotabhaya Rajapaksa and the next one with Basil Rajapaksa. There cannot be any doubt that it was the Supreme Court decision on the Divineguma Bill that decided the fate of the Chief Justice and even her husband. All the facts and charges are supplementary and subordinate. It was after the first decision that the husband was charged of corruption and it was with the second decision that the impeachment charges were brought before the Parliament. It is also not a coincidence that the impeachment debate unleashed in Parliament only two days after the clipped Divineguma Bill became passed with an uneasy two thirds majority.

But there are definite limitations for the Rajapaksa rule however much they rely on coercive power and extra-legal violence of the political goons. This is not Burma or Indonesia. The democratic traditions of Sri Lanka are more profound and long standing. Unlike when Sarath Fonseka was hounded, the judiciary backed their Chief Justice perhaps realising the dangers for their own survival and also as a matter of principle. This is quite unprecedented in a case of an impeachment anywhere in the world. Nothing similar happened when Fonseka was victimised. It was unfortunate that the judiciary could not back him. There have been many omissions and commissions on the part of the judiciary itself that have led to the present predicament.

As far as the present circumstances are concerned there are immense dangers for the rule of law that we and many others have discussed previously somewhat in detail. The most dangerous would be the appointment of a known stooge as the next Chief Justice. They are obviously short of a ‘Rajapaksa’ to be appointed as the next CJ but someone closer to them can be appointed; a Rajapaksa not by name but a ‘raja-paksa’ (royal loyal) by deed.

Some of the encroachments to the rule of law so far have come from the Parliament itself. The Parliament has refused to abide by the rulings of the Supreme Court and the Court of Appeal on the matters of the impeachment process. This has made the impeachment ‘illegal’ and ‘unconstitutional’ leading to a constitutional crisis although the President has endorsed the decision. Clamouring about the non-existent supremacy of Parliament is not going to resolve this situation and instead it would aggravate the conundrum.

No one is saying that the judiciary is supreme than the Parliament. None is supreme under the constitution other than the people of this country. Even otherwise the people are supreme who can change or create constitutions through peaceful and legitimate means. There appear to be considerable distortions in the representative character of the present Parliament leading to the present situation. This is apart from what has been said time and again about the distorted PR system in the present constitution. The major distortion has occurred through bribing and buying of opposition MPs to the ruling coalition contravening the letter and spirit of the representative system in the country. The present two thirds majority in Parliament is an artificial creation.

The judicial rulings or reviews are a matter of checks and balances in the constitution that all Members of Parliament have taken an oath of allegiance to obey and follow. The Speaker has instigated the Members of Parliament to disobey the rulings that are part of the rule of law. Even the main opposition party, the UNP or its leader, Ranil Wickremasinghe, seems to be trapped in this government quagmire. No one can deny that it is the Supreme Court and the Supreme Court alone that can interpret the constitution according to the constitution. If there is a disagreement or a doubt about the correctness of such interpretation, an appeal can be made to hear the matter again with an enlarged bench and perhaps of all the judges of the Supreme Court sitting.

Instead, the Parliament has opted to sit as a court of justice to find the Chief Justice guilty and ask the President to remove her. A Parliament’s role in an impeachment process is different to a court of law or a judicial procedure. It is only after a positive judicial finding that a motion of impeachment should be passed in Parliament. The Speaker has opted to interpret the constitution and ask the MPs to disobey the court rulings in this respect. This is not the rule of law but the rule of ‘Aiya-Malo.’