Colombo Telegraph

Fight For CJ Without A “Pro People” Judiciary Helps Rajapaksa

By Kusal Perera

Kusal Perera

On 20 November (2012) afternoon, a fair gathering of people at the badly neglected Colombo Public Library, gave that old black and white look of an art gallery photograph. Grey haired, bald and elderly men on stage argued against the impeachment now being taken up by the Parliamentary Select Committee (PSC) to decide on charges levelled against the Chief Justice (CJ). The audience, brought together by a group of city based trade unions for this public meeting, looking equally ancient, but was determined the impeachment should be defeated. The speakers argued their case quite well, and proved the impeachment was morally, legally, constitutionally and democratically wrong and should not be allowed to have its passage through parliament. A good case, they established.

The meeting had one very conspicuous lapse though, to put it mildly. The youth, the young generation that should take up the fight for the future, was almost absent with only a very negligible presence of women too. The audience was not one of a broad social representation. That added up to a question raised by another from the audience at the conclusion of the meeting. “All this is fine” he said and asked, “What all the arguments and explanations implied is, Rajapaksa would have his way. They never indicated what should be done ?” So the important question is “Critic and analysis is good, but what next ?”

This goes with all what was written to date on the impeachment, including interventions and comments on “FaceBook” and e-mail chains. They were all good and strong arguments to say the impeachment is and attempt to wrongfully remove the incumbent Chief Justice and politically control the judiciary. Yes it is. But it is one that can not be left as a campaign to save the Chief Justice. It has to be a campaign to save the judiciary. It should not stop at shouting hoarse to save the CJ, but go on to demand judicial reforms to have an independent, pro people judiciary. That seems the absent part in all of these segmented campaigns and protests.

The towel has already been thrown in, it looks, with the Rajapaksa regime declared the winner. Not merely because they have a steam rolling majority in parliament, but because the Opposition is clearly compromising on any and everything the regime wants. All decisions so far taken regarding the PSC proceedings has gone the way the regime wants, with the Opposition representation in it, consenting though at times with mild reservations. The time frames set, the refusal to grant the CJ her request for time to present her submissions, refusal by the Speaker and the PSC in accepting the judicial advice to defer PSC sittings till the Supreme Court determines on the petition before it, referred to by the Appeal Court, have all gone the way the Rajapaksa regime decides, with the Opposition timidly agreeing to fall in line with the government majority.

Thus all previous calculations (including my own assessment) on how the PSC impeachment process would get dragged on, at least till March 2013, now seems pretty much miscalculated. Ranil Wickramasinghe who was also initially calculating for long sessions, now goes with the Rajapaksa schedule in wrapping up everything in a month or so. So have the TNA and the JVP represented in the PSC. They end up giving the regime what it wants to do with the PSC without any serious and active dissent that can be seen by the public and boost the pro judiciary campaign outside.

This accommodation of the regime by the Opposition is not only with the PSC. It is how the Opposition actually play politics with this regime. None seem to defy the Rajapaksas in parliament, even on other important issues. That was the case with the Budget and the Divi Neguma Bill too. The Budget for 2013 was challenged for its provisions in handling public funds and was determined as against the Constitution by the Supreme Court that directed 03 proposals to be amended before the Second Reading is taken up. Neither the UNP leadership as the Opposition Leader, nor the TNA and the JVP, bothered to take that up, when the original budget was up for the Second Reading. Why did not the Opposition refuse to participate in the debate ? They had a social obligation to refuse participation in a budget debate that is not in line with the Constitution. So had the JVP too. But that was not how the Opposition acted.

The UNP leadership and some of their MPs did murmur few things from outside parliament for the media to carry. But not in parliament. In parliament they debated and voted at the Second Reading, allowing the same non amended budget to go through the final reading during the next week or two. So did the JVP that otherwise cries foul over anything by the Rajapaksas. The TNA may have been advised from Delhi, not to throw a spanner in their way, as they are “trying for the umpteenth time” to convince this Rajapaksa regime to agree on a serious devolution package. What ever the reason(s) may be, all in the Opposition have agreed to keep the parliament functioning, the way this regime wants.

In such adverse and frustrating context, the next best thing that should have developed is a strong, independent “people’s movement” that stands for serious judicial reforms. Strong enough to challenge the Opposition’s compromise with this R regime as well. Most unfortunately that potential is also absent in the protests that can be heard. If one maps the class and geographical presence of these protest campaigns to date, geographically it is horribly restricted to the Colombo city. Not even to the Colombo district. The only protests so far were in Hulftsdorf and once at the Public Library hall. A few provincial Bar Associations that met initially and the unanimous resolutions adopted by the Bar Association of SL, are all things of the past. They were any way a membership gathering of a single profession and not a public intervention. Even lawyers in Courts other than those in Hulftsdorf, in Mt. Lavinia, Kaduwela and Gangodawila have no part in any of the campaigns organised by the activists in Hulftsdorf. That leaves all satellite towns around Colombo and the other few major cities, almost oblivion to what’s happening in the Hulftsdorf Hill and within the Diyawanna Sanctuary.

Its class nature is also very apparent with the city upper middle class, dropping their ethnic politics to rally against the impeachment against the CJ. One now sees long time Sinhala campaigners like S.L Gunasekera and pro devolution activists like Jayampathy Wickramaratne together against the impeachment and a learned advisor to the Rajapaksa regime like Gomin Dayasri reluctantly and ambiguously talking against the impeachment. Discussions and statements were all Colombo city centred and by upper middle class personalities. It is clearly the upper middle class urban constituency that has got activated, for it is they who feel the need to have a judiciary independent of politicking. And, they have turned it into the academic exercise, they are more familiar with.

This leaves out the vast majority who should actually get mobilised to have not only an independent judiciary, but also an efficient and a clean judiciary. In 2010 November, reading out his 2011 budget speech, President Rajapaksa said, “A prolonged delay in legal disputes is one such cause for poverty. There are approximately 650,000 unsettled legal cases before our judiciary pending justice.” He promised an allocation of 400 million rupees in total to remedy this issue of “pending justice”. He also promised, he would allocate 150 million rupees for 2011 and the Ministry of Justice was to immediately set up 60 new courts with retired Judges to address this issue. What has come of it, is not been discussed even during this budget debate.

Thus it is not ONLY an issue of judicial independence that now needs to be taken up. But also that of a clean and an efficient judiciary to serve the people. The plight of those many thousands who daily linger around the Courts, spending their hard earned money, needs to be taken up with that of an independent judiciary. It is definitely a very long wait for justice, if it comes at all and in between that long wait, the ordinary people are also fleeced, not only by touts, but also by some hard bargaining lawyers. The whole system is corrupt and warped. Therefore today, while the need of an independent judiciary is more an upper middle class urban discourse, the majority of the common people would want an efficient and a clean judiciary. The fact is, an independent judiciary is only a fore runner to an efficient and clean judiciary that a country should have.

The impeachment against the CJ therefore allows much space for a more complete discourse and a campaign for judicial reforms that should include the slogan “efficient and a clean judiciary”. It is such a slogan that would allow for a broad social support base, but was lost due to this very narrow approach of the city campaigners and the compromising Opposition. It is not the strength of this Rajapaksa regime that keeps it afloat, but the supportive winds of the Opposition that leaves it roaming around. It is also the short sighted Sinhala outlook of the urban middle class that kept most what the regime did all this while, justified. Well, there isn’t a decent, intellectual “Left” discourse either to galvanise any futuristic thinking in society for now. That’s what this impeachment is all about.

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