By Tisaranee Gunasekara –

“No questioning arises from subservient lips”. Andrée Chedid (For Rushdie)

Ideally Chief Justice Shirani Bandaranaike would have prevented her husband from accepting Rajapaksa largesse; ideally.

Ideally, the Supreme Court would have resisted the 18^th Amendment; ideally.

Ideally the term-limit provision would be in place and a post-Rajapaksa future just five years away; ideally.

But as Gandalf of ‘The Lord of the Rings’ trilogy told Frodo Baggins, “All we have to decide is what to do with the time that is given us”. And the time that is ours has given us just three options: follow the Rajapaksas out of conviction, fear or cupidity; seek refuge in indifference; or do whatever possible, within the law and within democratic norms, to preserve the last remaining non-Rajapaksised spaces.

And for those who value the few islets of relative autonomy and marginal freedom still extant in our polity and society, supporting the CJ and the judiciary in their contestation with the Ruling Family is an inescapable duty.

Irrespective of their analysis/opinion of the CJ’s past actions.

The Rajapaksa tide is an all encompassing one; it will allow no exceptions; it seeks to submerge every aspect of political and civil life. It will dictate not only who will rule us but also how we should live and what we should think.

The Siblings are targeting the judiciary precisely because the courts are beginning to resist this absolutist tide.

In its ruling on the 2013 appropriation bill, the three-judge bench headed by Justice Shiranee Tilakawardane reiterated that finances are the sole responsibility of the legislature and stated that “…no single member of the executive should be permitted to traipse within the boundaries of that power” (The Sunday Times – 11.11.2012). Rulings such as these are of seminal importance because they remind us of those lines of power-demarcation without which a democracy will die.

It is that spirit of judicial independence the Rajapaksas want to pulverise.

The Siblings overwhelmed the CJ’s husband with largesse, partly to discredit her, partly to ensure her ‘good behaviour’. Indubitably, the impeachment would have come sooner, had the CJ resisted the Rajapaksa power-grab earlier. That is why our opinion of Ms. Bandaranaike’s past conduct should not prevent us from defending her in the impeachment battle, so long as she continues to resist the absolutist tide. In that battle she symbolises judicial independence; she stands for a judiciary which is willing to uphold the constitution even at the risk of incurring the wrath of the political leaders. That battle has a relevance beyond Rajapaksa Rule. Lankan judiciary must retain the capacity to resist anti-democratic, anti-constitutional moves by the executive, irrespective of the identity of the executive.

The impeachment is thus not a contestation between Shirani Bandaranaike and Mahinda Rajapaksa. The impeachment is not even a contestation between the executive and the judiciary in the classic sense, in the way such contestations happen in democratic contexts. It is a contestation between an ailing democracy and a voracious despotism. It is the final Rajapaksa offensive against the judiciary, in the Siblings’ overall battle to sealSri Lanka’s fate as a patrimonial oligarchy.

If the Rajapaksas win the impeachment battle politically and propagandistically, if Lankan polity and society fail to inflict a de-legitimising wound on Rajapaksa Rule, the Siblings will have a judiciary that is totally under their thumbs. This will enable them to do administer the last rites to democratic freedoms and basic rights perfectly legally, with the blessings of the courts. Equally pertinently, it will enable them to win the succession battle, if the demise of President Rajapaksa happens before another Rajapaksa is ensconced in the prime minister’s seat.

The Succession Issue

The Siblings are accelerating their power-grab – via the impeachment – partly because they want to ensure that a Rajapaksas succeeds a Rajapaksa.

The Rajapaksas are making serfs of all Lankans, starting with SLFPers. Since their project includes not just familial rule but also dynastic succession, the demise of Mahinda Rajapaksa will not save the SLFP (and the country) from bondage. It will be a case of ‘President Rajapaksa is dead! Long live President Rajapaksa!’

Is that the future we want for ourselves? Would any non-Rajapaksa SLFPer, however true-blue, be happy with such a future?

Usually, aspiring despots with dynastic dreams come to power in youth/early middle age. Thus they have the time to acclimatise their societies to the notion of dynastic succession. By the time the Presidential-father dies, the country has been conditioned into seeing in the son-in-waiting the only possible successor. Such travesties are possible not just in antediluvian lands like North Korea but even in sophisticated societies like Syria.

Mahinda Rajapaksa became president rather later in life. This makes a gradualist approach to the succession issue unaffordable, politically. His sons are too young and his brothers are not ‘party-seniors’, the way a Maithripala Sirisena or Nimal Siripala Silva is. If a presidential demise happens before the succession issue is resolved, the Party might rebel against the Family.

Since death is the great unknown, the Siblings must subjugate every pivotal institution in society so that they play their allotted role in ensuring that President Rajapaksa is succeeded not by another SLFPer but by another Rajapaksa.

The militarization of Sri Lankaby a Rajapakasised military is an important component in this plan. The subjugation of the Supreme Court is another. A non-subjugated chief justice can seriously upset Rajapaksa dynastic plans, by ruling against the Family in a post-Mahinda power contestation between the Party and the Family. A completely invertebrate CJ is thus a necessary condition for dynastic succession.

The importance of the impeachment battle cannot be overdrawn for either side. If the Rajapaksas win it politico-psychologically, they will be able to use the courts to destroy every pocket of resistance. But if the Rajapaksas emerge from the impeachment battle with their legitimacy scathed, the judiciary will gain a much needed dose of vigour to lead the democratic resistance against the gathering darkness of impunity, arbitrariness and unfreedom.

No judicial system is perfect. There are judges who act unjustly in any judicial system. But if the impeachment battle is lost, the end result will be more than a few or even many unjust judges; it will be an unjust system, a system which is structurally incapable of dispensing justice, even occasionally; a system which is nothing more than an instrument of Rajapaksa patronage and Rajapaksa vengeance, not some of the time but all the time.

Only the Rajapaksa kin and their current kith would be safe in such a land. Even Rajapaksa friends/allies/supporters will become insecure, if they slip down the totem pole of Rajapaksa-favour, as symbolised by the fate of Presidential Advisor Bharatha Lakshman Premachandra.

For the Rajapaksas and for the rest of us, the impeachment is the Rubicon. Once this is crossed, there will be no turning back, and barring a miracle, Lankans will have to become resigned to a seemingly endless Rajapaksa future. Realistically the options before us will be reduced to servitude, death/imprisonment or exile.

Vellupillai Pirapaharan did not give Tamils any other choice. The Rajapaksas will treat all Lankans, including every Sinhala-Buddhist, in the same way.