19 October, 2019

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Fallout Of A Ruling 

By Sarath de Alwis –

Sarath de Alwis

On Friday 4th October, a three-judge bench of the Court of Appeal dismissed the writ application that challenged the validity of the Sri Lankan citizenship of presidential aspirant Gotabaya Rajapaksa. 

“Formal notices of this application should not be issued to the respondents, and the application should therefore be dismissed,” was the terse ruling announced by the President of the Court of Appeal. 

The court is expected to give its reasons in due course. 

The seriousness of the submissions made, and the solemnity of the final ruling offer adequate proof, that the petition was no flippant maverick endeavor by two political partisans.

Gotabaya, a naturalized US citizen was in the country on a visitor’s visa helping his brother’s campaign in 2005. When brother Mahinda Rajapaksa won the Presidency, the obvious choice for the pivotal office of Secretary to the Ministry of Defence  was the sibling who was the military professional in the family. In order to occupy the high office he was obliged to first reclaim his Sri Lankan citizenship.  

In 2003, he had renounced his patriotic birthright in order to obtain US nationality in a painstaking process. 

With the Brother elected executive president, supreme law giver, holder of repository powers and plenary powers, the reverse process was flawless claimed the eminent counsel for Gotabaya.  

The writ application questioned the process he followed. The three-member bench has now made its ruling. The citizenship issue seems to be settled. We will learn more when the court gives its reasons.

The maniacal mob frenzy that erupted in the halls of justice when the ruling was announced is the point of departure of this essay. 

Halfway through the announcement of the ruling, several lawyers and supporters present in court got into frenzied cheering and clapping. Some jumped off their seats. 

“Order!” called the President of the Court of Appeal from the Bench. The senior lawyers tried to restrain the unruly crowd. They tendered an apology to court. 

There was a similar seminal hearing on a writ application during the Rajapaksa regime. A three-member bench of the court of appeal then granted a writ application concerning the select committee hearing on the impeachment of a Chief Justice. The court then granted the petition. No one said ‘hurrah’ or jumped about in the well of the court. 

What is wrong with our politics? 

The Civil War irretrievably changed the terrain and memory of our post-independence politics. 

The politics of the war years has produced a generation of political activists who present a dangerous threat to our accepted patterns of social behaviour in civil life. 

They hold a dangerously different world view in terms of freedom and inviolable human rights. 

The dilemma we confront today, has a historical precedent. 

When Napoleon Bonaparte’s empire was crumbling in 1813, Philosopher and statesman Benjamin Constant issued a powerful condemnation of what we now call militarism.  

It was highly dangerous, “to create in a country … a large mass of men imbued with an exclusively military spirit”. Such a group of men at some point after peace is restored would not shed their attitudes along with their uniforms.  

On the contrary, they would regard the unarmed populace as the ignoble mob that has to be molded into a new culture of grand patriotism.

The rule of law was a useless subtlety that can be manipulated to their whim. Opposition to their ‘weltanschauung’ was disorder that invited immediate suppression. 

Three centuries later those words still ring true. Militarism has no place in modern society.  

In all countries, in all centuries, a confederation of priests has formed within the state, a state apart. In all centuries, and countries, men associated together in the army for long periods have separated themselves from the nation. 

The very soldiers of freedom, infighting for such, conceive a kind of respect for the use of force, regardless of purpose. 

Without knowing it they contract thereby morals, ideas and habits which are subversive of the cause they defend. 

The measures which ensure triumph of war prepares the collapse of the law. 

Law must be calm, often slow, and always protective. The Military Spirit detests the thinking faculties as insipient indiscipline. All legitimate government rests on conviction. 

To make a long story short, during the Rajapaksa decade we ended a thirty year’s war in three short years, and we discovered new paradigms of truth and morality. We learnt to live with mass mediated manufactured truth. 

In politics, ‘truth’ is not what it appears to be. A social theorist has ventured to unravel the complexity of truth in politics.  

Public truths are things of this world. Each society has its regime of truth. Its own politics of truth. These truths were produced by multiple forms of constraints within that society. Such societal truths were conditioned by power. 

Now, we wake up daily, to a world of disputed claims. Sorting out truth from fallacy invariably takes the form of a buried scandal and vanished evidence. 

We heard the mob in the hallowed precincts of the court. Do we return to the old order? 

The first lie we must expose during this presidential election is that all men are equal in our democracy. Contemporary politics under patronal presidentialism operates in the blank space between illusion of freedom and the reality of serfdom. 

All of us are not equal. It is a terrible lie that we should really worry about. We have not quite succeeded in dismantling the ‘authoritative state.’ The essence of the Rajapaksa family rule remains intact.

Factual truth is hostage to political argument. Opinion replaces fact. 

Of course, we don’t expect politicians to be always truthful. But we must not allow the politician’s cynicism to carry the day. That would mean forfeiting our commonsense and abandonment of common decency. 

If we wish to regain our sanity and restore the respect for evidence based factual truth, we must defeat Gotabaya Rajapaksa and the ‘Rajapaksa Family’ at the coming presidential polls. 

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Latest comments

  • 27
    4

    No one can protect Srilanka if the majority Sinhala people wanted to destroy this island into a permanent bloodbath in this soil. The country had two Sinhalese lead extremism, Tamil lead extremism and Islam lead extremism against Buddhist Fundamentalist lead oppression. Today the country was under the control of Portuguese, Dutch, British and now under the control of China, USA and India. No one can save this country from these evils other than unity of Sinhalese, Tamils, Muslims together. Unfortunately, Buddhist Sinhala think that Mahinda Family only can save the country. Of course during the Mahinda regime LTTE extremism was defeated. Will that stopped Islamic terrorism coming to this land? Did Mahinda family defeated Sinhala leftist extremism? No, Was Mahinda Family stopped invasion of Portuguese, Dutch or British? Did Mahinda Family fought for Independence? Is it only Buddhists fought for Independence? No. Did JR stopped LTTE extremism? No. LTTE was created by India and It is India that defeated LTTE.
    Understanding the truth is the necessity.

  • 11
    4

    Extremely sad situation in the Country. It appears there is one rule for the Rajapakses and another rule for the others IN THE COURTS. This is more so in the courts. But one comment I as a Christian can make is what man proposes God disposes. I thank God that Cardinal Malcolm Ranjith sticks to his Guns and does not giveinto the Politicians.

    • 9
      0

      I don’t believe the appeal court is politically biased, because the same court ruled that Aiyo Srisena’s appointment of MR as PM was unconstitutional. I am not a fan of MR clan or 21st century fax, Ranil.

    • 2
      0

      Why did GOD create such a mess. Isn’t he to be blamed, as the true arbiter of all this.

  • 4
    9

    In actual facts has proven that LTTE was not Products of India ,it was internal political movement led by UNP , of JRJ was accountability for that . The War of politics was start point by JRJ-UNP has dragged 30 War of terrorism of LTTE of Tamil homeland .While war of Tamil terrorist that by claim of so-called ‘homeland’ that they forget Tamil Nadu is original land for that “homeland Tamil race ” live out of Tamil Nadu ….Republic of India
    JRJ-UNP has launch and laid that solid foundation anti-Tamil movement since 1977 after being to power by politics of that violence GUN RULE been initiated by JRJ leadership.
    In very beginning 1977-August that rule of JRJ has replace of violence that state terrorism against Tamils in South and political opponents by GUN POINTS.
    The political vandalism by UNP of JRJ has given breeding ground for that LTTE, TULF-currently TNA and other Tamil terrorist to take Up Arms against National Sovereignty and Independence of that democratic Republic of Sri Lanka.
    Same type of politics that UNP of Wickrasinghe of Ranil clan which that now-working and talk is not that reconciliation, it is flush out norms of democracy an island .

  • 3
    0

    This author uses clever phrases like “maniacal mob frenzy” to make “much ado about nothing” as the phrase goes in English. The country has been “independent” for 71 years. About 26 (37%) of those years were spent battling a fanatical militant group hell-bent on using cyanide capsules and suicide bombs. The author is making rather outlandish comparisons between Napolean, who conquered most of Europe, and GR. Sri Lanka does not have an empire or a dictator. It is just a small island nation struggling to get by on tea & tourism revenue. You need several decades free of war for democratic institutions to develop. There should be some experimentation with democracy, socialism, women’s rights, press freedom, etc. You need to find sectors that can generate revenue alongside foreign investment, e.g. finance or manufacturing.There is a lot more to this “experiment” than any Rajapakse.

  • 3
    2

    This writer cherry picks one set of facts and ignores another blatant set of facts.
    Here is a para from the Island Editorial:
    “It may be recalled that on 18 Nov. 2011, all hell broke loose, in the Colombo High Court, when the judgment in the White Flag case was given. Those who took exception to the ruling went berserk, smashing up court furniture and even abusing two judges in raw filth. Among them were lawyers. At the receiving end of all this was a female judge, who looked terrified. The police had to move in to remove the judges to safety. We editorially called for action against the troublemakers and urged the BASL to hold an inquiry against the rowdies in the garb of lawyers, but to no vail. The culprits got away with that serious offense. The BASL has since come forward to preserve the dignity of the judiciary!”
    Both the Ranil supporters, and the rajapaksa supporters, the TNA and also the Bar Association are all guilty of Hypocrisy. Unfortunately, this writer belongs the same ilk of hypocrites in choosing one set of facts and ignoring others.

    • 0
      0

      Please bear with him he is blind in one eye and can hardly see with the other.

  • 2
    1

    Sour Grapes. Bow and accept the court decision. Do not be sooks. GOTA’s Sri Lnakan citizenship certificate was signed by the president. You do not need to ask anything else. There is nothing above that until 2015.People will decide whether we need GR or Sajith. The opinions we see on the internet can not count at all.

  • 0
    0

    Sarath, dont viewers clap, visit and scream when clowns show up in a “theater of circus”. Ganasara too walked in, disrupted and threatened. He with others including police did it again recently challenging the judiciary. What is NEW ????

  • 0
    0

    Jus sanguinis

  • 0
    0

    The last paragraph of the article hits the head of the nail. That means we must go the polling station and vote for a candidate other than “Gota” alias Herr Gottler. If we cast no vote or spoil the vote it is no vote against “Gota”. Then the question comes to whom must we vote who is not a murderer or having blood on their hands? Clearly the two military candidates are out as they are very likely to be killers of all sorts say in the 1988 to 1990 uprisings. The JVP guy? Pooh! The man may look a good whistle blower now and further look like a good democrat. But given the authority what would they do as they too have blood on their hands. Sajith! He already has forgotten himself where he is and talks of a “Sri Muka” My reading is that he would try to be his father in quelling dissent very effectively through white vans. So dear author with whom are we left with? One of the so called unheard of fellows who have no experience at all in statecraft? I eternally regret in voting for MY3 + RW combine in 2015 to see what a hotchpotch it is and contrary to all expectations be the Great Bank robber and a record of postponing elections thus disenfranchising all of us effectively. Now I am careful with my choice. Alas this country does not have the None of the above option in voting. If that option carries a count of more than 50% then a re-poll is done minus the previous nominees. If that option was available I would cross for that this time.

  • 1
    0

    Having read the article and placing a comparison with the judgement of Baroness Hale, the legal minds that represented the Petitioner did not come up with the intention off eh executive and whether or not in the circumstances the use/abuse of the executive power what outside the usual terrain. Baroness Hale I the case of the Gina Miller thought that the executive action of the prorogation of the parliament in UK was abuse of power even thought it was thoroughly an executive action to which the executive was entitled to. A new precedence was created thus invalidating the action of the prorogation. However the courts in Sri Lanka did not wade into that area of intention in the use of the executive power / plenary of otherwise, of course perhaps the courts had the fear of drowning themselves into the destructive waters of MR. Probably it was not a bold judgement but a judgement to preserve status quo. Therefore it does not matter how bad/ immoral and unethical the mind of the executive in its actions so long as that executive can do anything and get behind the immunity of the use and unfortunately the courts were too timid to step out of the way and question the intention. Well I can imagine the befall of the wrath of the MR supporters and henchman if that happened on the poor members of the judiciary. .

  • 1
    0

    Oh this Nadesan is a Gotha fan. But he is not the close relative of Mahinda the menace but another from the same camp with same name. He is also the great pal of HLD and he is there to protect the Sinhala interest while sacrificing the Tamil interests but of course using the Tamil card. This is like how Laxman Kathirgamar used the Tamil card to exploit Chandrika in 1995 to get the full ministrial portfolio. This nadesan is only justifying here the thuggish behaviour of the Gotha goons not by blaming them but by dragging the UNP goons to justify his claim. He has no guts to say that all sinhalas are like this? This is nothing but the low grade survival instinct of “make hay while the sun shines”, like Balu Karuna and Kunu Viyalendran and Nariya Murali the chugger. Hating LTTE is one thing but hating Para Dhemalu by the same para Dhemalu is a tragedy.

  • 3
    0

    How far one can rely on the judges led by Kothagoda. After all, same breed with same interests and lack of independent thinking and lack of safe guarding the national and ethical interests. I play safe. I scratch your back and you scratch my back. This is why the minorities dont want or dont trust the local sinhala judiciary to dispense justice. Even when judiciary gives out a judgement there is no one to execute it and any sinhlese can openly disregard it. The recent Mullaithivu incident is a good example. When a sinhala MP helped to bury a tamil body against court order he was arrested and locked up. But when sinhalese cremated a sinhala body against court order no action was taken and the law breakers were sinhala heroes. Sri Lankan Sinhala judiciary is subjective and not objective, all depends on who commits the crime and on whom? It is very sad but true.

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