By Kusal Perera –
She’s abused, says the media. That was all some parakeets could do. She, Chief Justice walks out and that’s all she could do, as well. The UNP members in the PSC says, the CJ should be given a fair chance and be persuaded to attend PSC sittings, stressing they will stay on and fight to the end. The “end” was decided before the beginning. It was for that, the PSC was appointed by this regime with a 7 to 4 margin and not with a single vote majority of 6 to 5.
We now begin the ascendency to the next ugly phase of Executive power strengthened through the 18 Amendment to the Constitution (for now, lets not discuss Justice Shirani Bandaranayake’s hand in it) and that of economics under this regime. This for me therefore is no narrow issue of saving or cleaning the CJ. It is for me a much broader political issue of contradictions within the system created to develop a free market economy through political patronage. A situation where answers are sought for the inherent contradictions within their system in continuing with the free market. Of course with not just political patronage, but with political partaking. A revised system that allows more powers, unquestioned in any forum. Some in fact marvelled at the arrogance of this regime in impeaching the CJ while the Universal Periodic Review (UPR) on Sri Lanka was on.
From the side of the regime, by 27 November, there was some justification, or rather, some explanation on why the CJ was impeached. In a neither official nor unofficial media intervention, a spokesperson for the Presidential Secretariat suggested that the CJ and her husband acted improperly, contravening legislative regulations. Only when the number of acts began increasing alarmingly did the executives of the legislature take up the issue, the spokesperson said. While that could be so, they need to be proved beyond doubt in an impartial and a fair forum.
Within Sri Lanka, protests against this arrogant impeachment remains a very isolated social protest by a concerned group of lawyers and some urban Sinhala middle class elements. What nevertheless becomes important is, the constituency of the growing protests. For the first time, a conspicuous section of the Sinhala middle class that steadfastly backed this regime against LTTE separatism and promised a reasonably fair and comfortable post war dividend, has got dislodged from their “patriotic” Sinhala platform. They now seem to understand, there is a serious mismatch between the regime they helped consolidate and its economic life that define its style of governance. These Sinhala urbanites have now joined the foray against the regime, buddying up with their direct opponents on the pro devolution platform, demanding a reversal of the impeachment. To that extent, the impeachment against CJ has shaken up the social power alignment against the regime.
What is also conspicuous is the absence of the political opposition that could exploit such social bewilderment against this regime if they want to, but to date have not. The total collection of political and NGO personalities that dominated the “Platform for Freedom” show clear absence so far. They have not geared themselves in protesting against the impeachment. That again shows the reluctance in the UNP leadership in challenging the regime on this issue of impeachment against the CJ. Protests have thus remained without any political drive and without any connect to the larger social audience, leaving concerned lawyers and middle class urbanites to agitate as they could. The JVP too have not taken a clear stand on the impeachment and their participation in the PSC seems dubious and meek.
The impeachment process thus continues unabated, gathering arrogance from the side of the regime, now trying to tie up all State power into a single bundle. An attempt, seen by most anti Rajapaksa elements as “dictatorial” and a “crumbling of the State”. It is both and reason why the UNP leadership is playing it out with the regime through subtle compromises. For the UNP, at least for those who see eye to eye with Wickramasinghe, it is their responsibility to save the system on which they would have to live and take over. The problem the UNP leadership has with this Rajapaksa regime therefore is that, it had got into their shoes, not only in keeping a liberal market economy afloat, but is now getting into re designing the State to concur with the tottering economy.
UNP’s reluctance therefore to meet the Rajapaksas head on, leaves this regime with an advantage and makes it indifferent to those shifts in power balances in society. It is therefore most unfortunately clear, Ms. U.A.B.W.M.R Shirani Anshumala Bandaranayake’s fate as the 43rd and the first female CJ of Sri Lanka, would not be decided on how innocent or not she is. But, decided on the already finalised recommendation that would come to parliament from the PSC and the vote from subordinate and tamed ones, waiting to say “Aye” to the Speaker on the impeachment.
What makes this regime so adamant and arrogant to go this far is certainly a clear tie up in how they manage, or rather handle the free market economy. The economy, with all the tinkering of numbers and figures to prove it is being set on a fast forward growth mode, delivers nothing to the larger constituency of urban and rural lower middle class and the poor. Despite Cabraal’s boasts of a “graceful growth” of around 06 per cent of the GDP needs no government to run the country, where the economy is no more State owned and controlled. A government is elected to lift that percentage to over at least 10 per cent through well thought out incentives and restrictions or regulated markets in selected service and production sectors of the national economy.
In spite of what is said in the budget speech, it is not budget proposals that guide the economy. It had not been the budget that decided where the economy goes, even in the past few years. All through the year, supplementary estimates brought to parliament decide where and how the economy moves, if it does. In year 2011 by end September, 67 Supplementary Estimates worth billions of rupees, made the budget proposals for 2011 almost irrelevant. It can not be different in 2012 and would not be different, if not for the worse in year 2013, with a regime that turns arrogant each day. In a country where revenue projections in budgets either has no relevance in real life or falls short by two digit percentages in actuals, where even reduced imports by 3.3 percent during the first 09 months in 2012 (year on year), yet keep the trade deficit increasing, where incentives are thrown out for laundering of black money legally, the judiciary in such a country, especially at its apex level, becomes crucial for economic survival of the regime.
Thus for the first time in the history of Executive rule in this country, the Attorney General’s Department was brought under the purview of the President. This has to be assessed within a culture of subordinate politics in the legislature and heavy politicising of all important State agencies and institutes. Assessed within the effective implementation of the 18 Amendment to the Constitution.
Even in such context of usurped power, the past months proved how important it is for this regime to have the higher echelons of the judiciary under its dictates. It had to scheme and manipulate with the parliamentary opposition to get the “Divi Neguma” Bill back in the Order Book, after it was effectively stalled by the SC. It had once again to play politics behind curtains with the opposition, to have the Second Reading of the Budget 2013 and vote on it, that nevertheless remains unconstitutional with no required amendments made as determined by the SC.
Far worse it would be, to continue to have a SC that would sit on crucial FR petitions challenging the regime on monetary and financial issues, delivering on its own right. The FR petition filed by 11 trade unions on investments made from the Employees’ Provident Fund (EPF), praying for a permanent injunction on all such investments, which is a major source of unaudited big money for this regime, would be a problem if decided independently by the SC. It therefore has to be determined as decided by the regime. Such sensitive cases can not be left to chance, more so in the coming months and years.
It is pretty clear, this regime that wants to handles public money as it pleases, the very issue that was taken to Courts regarding the 2013 budget, can not go on with a judiciary that may not give priority to the regime all the while. Even if the conflict now in public domain was not there, the court would have held that permission granted to the Finance Minister to withdraw money allocated for specific purposes and/or from the Consolidated Fund presents “a direct challenge to the onus of Parliament to have full control over public finances as protected by Article 148 of the constitution.” That was what made independence of the judiciary unacceptable to this regime and thus had to be ignored with the connivance of the opposition for the Second Reading of the 2013 budget. But, that is definitely not a long term answer for this regime moving into a new phase of executive power.
A Bangladeshi Assistant Professor, Taiabur Rahman of the Department of Development Studies at the University of Dakha, who in late 2004 undertook an extensive study on governance in Sri Lanka and wrote the paper, “Parliamentary Control and Government Accountability in Sri Lanka; the Role of Parliamentary Committees” concluded that “….the formal institutional structure of the political system in Sri Lanka, appears seriously disadvantaged in checking the unbridled power and authority of the Executive and virtually unable to call the government to account. All the major characteristics of a strong legislature in practise are absent in Sri Lanka and it plays in the hands of the President who monopolises power, even in time of cohabitation. All the major political institutions including parliament (let alone parliamentary committees), the provincial parliaments and the local government units are made captive to the vagaries of the President.” (p/42)
That power of the president is what decides who does what for the regime and the regime has apparently decided, it now needs a free hand in handling the economy including public finances, without any possibility of a judiciary checking its right to do so or its constitutionality. Thus the fate of the CJ, almost foretold as closed, on economics of this regime. An attempt to re invent the State with absolute centralism and political power, creating within it the fissures and fractures of a decaying State.
*This could be read along with Sumanasiri Liyanage’s article, “Systems Are Collapsing!! So What? Perspective Of The Left” – Kusal Perera