By Rajan Philips –

Rajan Philips

“Hold Me in Contempt” is the title of former Chief Justice Shirani Bandaranayake’s memoir on the saga of her impeachment by parliament under the Rajapaksa regime. It is a reminder of the past that presidential candidate Gotabaya Rajapaksa cannot easily hide. He may not have been directly associated with the impeachment of the former Chief Justice, but he cannot plead even partial dissociation because he is now the official flag bearer of the Rajapaksa political enterprise. That enterprise generated quite a few ‘firsts’ in Sri Lanka’s political and judicial history. Nothing like them had ever been seen before. What assurances, if any, can candidate Rajapaksa offer that the country will not see anything like them again? The answer is a resounding silence. 

The hallmarks of the return of the Rajapaksas after their defeat in 2015, have been their convenient amnesia about the past, and the gall in asking others to forget the past and “ask the future.” There is no remorse or regret whatsoever for what they did, and they feel no compulsion to assure that they will do things differently in the future. In fact, the Rajapaksas even say that they will do again almost everything they did earlier in the name of national security. Their powerful media machines make them out to be selfless patriots who are sacrificing everything including American citizenships for the sake of poor Sri Lanka.  

“Hold Me in Contempt” is a timely reminder of one episode in the Rajapaksa regime’s sustained assault on the judiciary. There is no other way to describe it. The assault on the judiciary was part of a general assault on the good order of the State itself. No one is suggesting that the Rajapaksa brothers had planned these assaults from the very beginning of Mahinda Rajapaksa’s presidency in 2005. 

The original intentions were perfectly legitimate, even if they may not have been inspirationally lofty. There were problematic political choices that diametrically reversed the positions taken by President Kumaratunga from 1994 to 2005, the first (and only) presidential decade of the SLFP (proper). However problematic and objectionable to a given political standpoint, the choices the Rajapaksas made were legitimate. The roots of the rut that eventually set in lay elsewhere, not in politics.

The maxim that absolute power corrupts absolutely is never more applicable to any Sri Lankan government than the Rajapaksa regime. Coupling the garnering of power was an almost habitual disregard for norms and rules. The Rajapaksas did not invent this disregard but they became the most powerful exponents of it. The saga of Gotabaya Rajapaksa’s dual citizenship application, rather the alleged lack of any proper application, is a case in point, just as indeed it may also have been the starting point. The slope downhill has never been slipperier. 

How the whole process turned into assaults on the judiciary and the state machinery has a one-word explanation: Immunity. It’s a simple equation, if not a calculation: Presidency = Immunity. The Rajapaksas figured it out long before Donald Trump became a global exhibit of it. They have even surpassed South Africa’s Jacob Zuma, who has been packed off for god after seeming to be thoroughly immovable. Malaysia found the opposite way of bringing back Mahathir Mohammad who had gone for good to get rid of his corrupt successor.  

The Rajapaksa Temper

Interminable terms in office would have been one way of ensuring immunity. Hence the 18^th Amendment. And what sterner lesson to judicial minions than impeaching the Chief Justice herself. The victim of the impeachment has now spoken through her memoir. Although not as cogently damning as one might have expected the memoir to be, it provides some key dots that connect through the petty politics, personal vendetta and constitutional ignorance that made up the impeachment. 

According to Shirani Bandaranayake, she had a taste of the Rajapaksa wrath within minutes of her being sworn in as Chief Justice, when the President quite unexpectedly questioned his new CJ as to who was going to the Secretary to the Judicial Service Commission (JSC), that was going to be vacant soon. The CJ replied by the book – that it would be the Commission that will decide on a permanent appointee and until then the Deputy Secretary will be the Acting Secretary. 

“The President blew a fuse,” writes Shirani Bandaranayake (SB), describing the temper that used to be commonly attributed to the three Rajapaksa brothers of consequence (Chamal Rajapaksa being the inconsequential exception), when they were in power. They are very nice now. It was not that the President had anyone in mind, clarifies SB, but he was annoyed that his new appointee was not showing to be consultative enough with her political masters. 

Shirani Bandaranayake was appointed to the Supreme Court on 30 October 1996 by President Chandrika Kumaratunga. She was the first female appointee, youngest since independence, and first from the academia without judicial experience. It was a controversial appointment and petitions were filed in the Supreme Court challenging her qualifications and alleging her of potential bias in constitutional matters. She survived those challenges, which are given only a sketchy reference in the book, and served on the bench for 15 years before being made Chief Justice on 19 May 2011. 

Her tenure as Chief Justice proved to be short lived. Within two years, in November 2012, the Rajapaksa government began impeachment proceedings against her. As described in the book, Dr. Bandaranayake was removed from office by President Mahinda Rajapaksa, on the basis of an “illegal impeachment”, on 13^th January 2013. She was reinstated on 28^th January 2015 following the defeat of Mahinda Rajapaksa, and she retired as the country’s 43^rd Chief Justice on 29^th January. 

Throughout the “illegal impeachment” process, it was commonly believed that it was the Supreme Court’s ruling on the constitutionality of Divi Neguma Bill that precipitated the government’s “witch hunt” and the rush to impeach the Chief Justice. The memoir indicates that there were other cases and rulings that Dr. Bandaranayake had presided on, as well as the government’s attempts to control the affairs of the Judicial Service Commission, all of which sufficiently annoyed the Rajapaksa government which unleashed its parliamentary attack dogs against the Chief Justice. The book says nothing about the 18^th Amendment and the controversial ruling that allowed the removal of term limits on the presidency without requiring a referendum. The book provides names of people and the roles they played in the judicial lynching. The past and current locations of some of them in the political and legal landscapes are quite revealing. 

Past and Future

Dr. Rajitha Senaratne, a paragon of yahapalanya virtue since 2015, was a prominent Rajapaksa government Minister and quite a truculent Member of the Parliamentary Select Committee on impeachment. He had no shame about the huge conflict of interest that he brought to bear in the Committee. The Minister’s wife, Dr. Sujatha Senaratne, had petitioned the Supreme Court against the Public Service Commission for allegedly violating her fundamental rights by rejecting her application for the position of Director of the National Hospital, Colombo. The PSC had good reason for rejecting, because the application had been submitted after the deadline closed. The bench of Supreme Court judges presided over by the Chief Justice held with the Commission unanimously. The powerful Senaratnes were not amused. 

The former CJ expresses her sadness about G.L. Peiris who turned on her rather viciously during the impeachment. Peiris had been her professor and mentor and many have believed that it was Peiris who enabled her appointment to the Supreme Court and the ascent later as Chief Justice. Professor Peiris had already turned his back on a stellar academic record for dubious and still unclear political gains, and he was only being consistent in attacking Shirani Bandaranayke on behalf of the Rajapaksas.

The book reveals that President’s Counsel Romesh de Silva appeared pro bono as her lead counsel in the impeachment hearing. So did the late K. Neelakandan, who became the instructing Attorney, after JM Swaminathan and Julius & Creasy had refused to take up the CJ’s case. Even the legal fraternity was bitterly divided, with the Rajapaksa henchmen trying to disrupt the passage of a resolution at a Bar Association Special General Meeting, that merely and meekly called upon the brothers, the President and the Speaker, to reconsider the impeachment.

The book reproduces many extracts of the exchanges between Romesh de Silva and the government members of the parliamentary committee. All of Mr. de Silva’s valiant efforts were in vain. They wouldn’t even listen to him. It makes one wonder that while no one seemed interested in listening to Romesh de Silva when he appeared for the former Chief Justice, Shirani Bandaranayke, everyone seems constrained to listen to him when he appears for the former Defence Secretary and current presidential candidate, Gotabaya Rajapaksa. 

A related comment might be about the changes in the country’s legal and judicial landscapes over the years. In her memoir, the former Chief Justice somewhat sketchily alludes to the structure of the judiciary in Sri Lanka, comprising the Supreme Court, the Court of Appeal, the Provincial High Courts and the Courts of First Instance. Beneath the higher courts, there are about 200 District Judges and Magistrates in the Courts of First Instance. And apparently there is an anonymous culture of filtering up information on “current occurrences.” Dr. Bandaranayake calls it “sheer prattling”. The efforts to stop it did not succeed, and the practice could be harmlessly useful, or deliberately harmful. Not surprisingly, the former Chief Justice was a victim of harmful misinformation.   

We may look at just one variable, albeit a very important variable, namely the pace of change in the composition of the Supreme Court. In the first two decades after independence, the Supreme Court was an island of stability. The two UNP governments (1948-1956) made eight Supreme Court appointments and one appointment of a Chief Justice. In the second eight years (1956-1964), the two SLFP governments  appointed ten judges and one Chief Justice. The stable pace was maintained during the five-year (1965-1970) UNP interregnum, with the appointment of eight judges and one Chief Justice. The flood gates opened thereafter, with retirements and constitutional changes leading to the appointment of 19 judges and two Chief Justices (one of whom was a stopgap appointment) in 1970-77 (SLFP/UF); and another 19 judges and four Chief Justices between 1977 and 1994, by the UNP government, as the country shifted from the parliamentary system of government to the presidential system.

Chandrika Kumaratunga as the first SLFP President was less prodigal in the number of judges she appointed, limiting them to eight, but proved to be reckless in the only Chief Justice appointment she made. Her appointee, Sarath Silva, turned to be the longest serving (1999-2009) and the most controversial Chief Justice in history. Driven to outdo Chandrika Kumaratunga in every respect, Mahinda Rajapaksa turned judicial appointments into an area for breaking records. He appointed a record number of 17 Supreme Court judges and three Chief Justices, including Mohan Peiris who was appointed after Shirani Bandaranayake was impeached. In his four years, Maithripala Sirisena has appointed 11 Supreme Court judges and four Chief Justices, mostly because of age and retirements. 

Three of the eleven current Supreme Court judges were appointed by President Rajapaksa, and eight by President Sirisena. Unlike in the US, judicial appointments are not an election issue in Sri Lanka and in most other countries. But future appointments in Sri Lanka are likely to be monitored closely by contending parties given the stakes that are involved. Protocols and guidelines are still needed for proper judicial appointments even after the changes brought in by the 19^th Amendment.           

The November election is for the future, but it is also about the past. Without a Rajapaksa candidate, the election may not have been about the past. That is not the case, with Gotabaya Rajapaksa being one of the leading candidates, if not the leading candidate. The questions that arose then and which were not answered, remain unanswered today. The questions about the impeachment have been mostly answered. But there are other questions and they will remain regardless of who wins the November election. The only difference will be about immunity. Because, Presidency = Immunity.