By Dharisha Bastians –

A return to the status quo seems inevitable in the impeachment aftermath. A new administration at Hulftsdorp, a dormant Opposition, and a disengaged people look towards the challenges facing Sri Lanka in 2013, the bulk of them perceived to be from across its borders, while the true enemy – apathy in the face of arrogant power – lies within

The old world is dying away, and the new world struggles to come forth: now is the time of monsters – Antonio Gramsci

One week after its installation, the new order at Hulftsdorp is making sweeping changes to the administration of the country’s apex court house.

The Supreme Court Registrar Duminda Mudunkotuwa and Secretary to impeached Chief Justice Shirani Bandaranayake, Geethani Wijesinghe will be transferred to Balangoda and Ruwanwella respectively as District Judges effective today. Both officials, requested the transfers, official reports say. Ironically, they leave their offices at the Superior Court Complex on the same day that ceremonial sittings were held the court house to welcome the new Chief Justice, Mohan Peiris.

Mired in controversy, the ceremonial sitting for the country’s 44th holder of the office of Chief Justice was blacked out to all local and international media, with only the state-controlled media permitted to enter the Supreme Court that police personnel once again made off limits to journalists and photographers. It also marked the first time in history that the Bar Association President and the country’s most eminent lawyers were absent at this traditional function to welcome a new Chief Justice.

During an extraordinary general meeting in December, some 3,000 members of the Bar Association passed a resolution to refrain from attending the ceremonial sitting of a successor if Chief Justice Bandaranayake was unlawfully impeached. Traditionally, a ceremonial sitting is held after the Bar Association makes an official request for an opportunity to welcome a new chief justice, in a time honoured legal tradition. During the function, two addresses are made, one by the President of the Bar Association as the head of the unofficial bar, and the Attorney General, as the head of the official bar.

Blackout

The blacked out ceremonial sitting yesterday was addressed by Rafik Zarook PC, who was recently appointed Chairman of Bank of Ceylon on behalf of the unofficial Bar. On 15 January when Chief Justice Peiris assumed office, it was Zarook who unofficially welcomed him before the tea party on the fifth floor, soon after Buddhist monks blessed the new appointee.

Attorney General Palitha Fernando made the second address. The event was well attended by members of the SLFP Lawyers Association and officials from the AG’s Department, activist lawyers say. The biggest names in the Sri Lankan legal fraternity, President’s Counsels Romesh De Silva, K. Kanag-iswaran, Srinath Perera, Jayampathy Wickremaratne, Ikram Mohammed, and Geoffery Alagaratnam, among others, did not attend the ceremony.

Unfortunately, this snub is nothing but a token gesture in the grand scheme of things, even though traditions are revered and vehemently upheld in the legal community. It is likely to rankle the new appointment somewhat, and no doubt will be remembered, but in all other respects, the Bar is realising it will have to capitulate somewhat in order continue to practice, even if it means appearing before a Chief Justice most of them continue to believe was illegally appointed. So it was for the judges of the Supreme Court, three of whom issued a ruling on the first of the year that casts a shadow over the new appointment.

Eager to make a nation forget the taint of Bandaranayke’s unlawful impeachment, the regime is forging ahead with installation ceremonies and the proposed enactment of laws to insulate against reprisals at any future impeachment.

 Reversing judgments?

Earlier this week, a three judge bench of the Supreme Court decided to place before Chief Justice Mohan Peiris an eleventh hour request by the Attorney General for a divisional bench of the highest court (or five judges of more) to hear three fundamental rights applications challenging the constitutionality of Standing Order 78A. In a strange twist, the AG made this request on the date set for a final hearing of the petitions, despite the court having allowed a period of nearly two months for respondents – including the AG – to file objections. Counsel for the petitioners objected but the Supreme Court bench headed by Justice N.G. Amaratunge ordered the Court Registrar to transfer the application to the Chief Justice once the AG submits in writing the basis upon which the request was being made. Deputy Solicitor General Shavindra Fernando, appearing for the AG, only said that the case should be heard by a fuller bench because it was ‘an important matter’.

The decision about whether to appoint a fuller bench rests with the Chief Justice, who decides on whether the request has merit and then proceeds to appoint the bench. Counsel for the petitioner, M.A. Sumanthiran, Parliamentarian and Attorney at Law, argued that since the lawful holder of the office of Chief Justice was not in chambers, the application could not be made to the newly appointed Chief Justice, who he accused of usurping the office. Even more seriously, legal analysts point to the fact that the new Chief Justice will effectively be deciding on the bench that will decide on the legality of the removal of his predecessor, which runs contrary to principles of impartiality and natural justice, since her successor has purportedly profited from the move.  

But these concerns about legitimacy and independence are overridden by the Government’s desire to reverse – and as soon as possible – the decision of the Supreme Court on 1 January that ruled that Standing Orders (which govern parliamentary procedure) were not law according to the Constitution and could not therefore set up a procedure that could adversely affect the rights of a judge, a third party. According to Government insiders, the hope is that the ruling could be reviewed and reversed by the court’s determination on the three FR petitions, and preferably before the UN Human Rights Council sessions open next month. The Government believes that if a fuller bench of the Supreme Court reverses the order by Justices Amaratunge, K. Sripavan and Priyasath Dep, it will be able to fend off some of the international criticism that has been growing in volume since the impeachment of Bandaranayake was pulled off in violation of a Supreme Court order.

Sealing the deal

To further the seal the impeachment process and make it legally watertight, the Government is also currently formulating a 19th Amendment to the Constitution that will not only limit the term of a sitting Chief Justice to three years but will also make Parliamentary Standing Orders law. While such legislation will not apply retroactively in the Shirani Bandaranayake impeachment case, it will set the tenor for any future action against errant judges that the ruling Government seeks to remove from office. With the new Chief Justice now installed also as the Chairman of the Judicial Services Commission, the removal of JSC Secretary Manjula Tillakeratne, whose statements about political interference with the Judiciary in September last year, was followed by a brutal assault in his car weeks later and marked a watershed in the tensions between the Executive and the Judiciary may be imminent. In fact, speculation is also rife that a disciplinary inquiry is to be held against Tillekaratne, although Government sources deny the claim.

The JSC is in fact the hotbed of where Executive-judicial tensions commenced when the Commission took disciplinary action against a magistrate with close ties to a senior presidential aide in charge of Parliamentary affairs. Soon after, the JSC refused both oral and written invitations for discussions with President Rajapaksa and senior officials of his administration, and went public about the alleged interference in judicial affairs, irking senior members of the ruling regime.

All this being water under the bridge and with a new judicial administration at the helm, that will hopefully undo some of the damage caused to the Government’s legitimacy by the impeachment, in a matter of weeks, all vestiges of Chief Justice Shirani Bandaranayake’s administration and the landmark judgments made by the upper Judiciary against her unlawful removal from office, may be history erased and altered.

The impeached Chief Justice herself, having endured the ordeal of her removal, including the horrific departure from her official residence, appears to have faded somewhat in the national consciousness, just as the Government was convinced she would.

The un-commissioned committee

But in some circles, the buzz about the impeachment continues, a hotly-contested topic around dinner tables in Colombo, academic forums and of course those with intimate knowledge of the process and its trajectory. It is in these latter circles that details are now emerging about the President’s promise of an independent committee to study the Parliamentary Select Committee report that found Bandaranayake guilty on three charges contained in the impeachment motion tabled in Parliament on 6 November 2012. Despite being repeatedly told that there was no constitutional provision for the appointment of an independent commission by no less than former Chief Justice Sarath N. Silva himself, the President was keen to make good on his promise made at the inauguration of the new Institute of Charted Accountants building in December, at the height of the impeachment saga.
So it was that despite a two-hour discussion at Silva’s home on Dabare Mawatha in early January, President Rajapaksa informally constituted a three-man committee to study the PSC report on 7 January, three days before the impeachment debate on the report was scheduled to commence in Parliament and handed over the report for evaluation in the presence of Presidential Secretary Lalith Weeratunge, External Affairs Minister G.L. Peiris and Central Bank Governor, Ajith Nivard Cabraal. The three individuals handpicked for the onerous task of sifting through 1552 pages of proceedings and evidence were former Secretary General of Parliament Dhammika Kitulegoda, former Central Bank Governor Ranee Jayamaha and Executive Director of the Consortium of Humanitarian Agencies Jeevan Thiagarajah. None of the committee members who undertook the task in all solemnity wanted to be named until their deliberations were complete. They were all known to rigorously uphold independence and integrity in their respective fields. Their review, tendered some surprising results – in fact results similar to the debunking of the three charges on which the PSC had pronounced guilt by Bandaranayake’s lawyers.

In fact, in the final analysis, none of the pronouncements on Bandaranayake’s guilt could be reconciled with the constitutional provision for ‘proved misbehaviour’ on the part of the judge under investigation, that warranted her removal from office.

Review

On the first charge of impropriety in respect of a purchase of an apartment at Trillium, the PSC pronounced on her guilt on the basis that she had received a large discount of Rs. 1.6 million by virtue of her office while hearing the Golden Key cases. Evidence annexed showed that the Watawala Committee of chartered accountants, overseeing the transactions of the beleaguered Ceylinco Companies following the Golden Key scandal, had authorised the sale of the Trillium Apartments at up to 5 percent less than the original price. The Watawala Committee lists the sale of the Chief Justice’s sister’s apartment at Trillium and the price at which it was approved for sale by the Committee, and the discount provided to her was no more than the discount provided to all buyers. According to sources with knowledge of the PSC report, the report glosses over the page of the Watawala Committee report that shows the discounted sale prices offered to Bandaranayake’s sister and other buyers.

On the second charge that Bandaranayake maintained several undeclared accounts which showed zero balances on 31 March each year, evidence given by the NDB CEO emphatically refutes the finding of the PSC. The Bank Official informed the PSC during his testimony on 7 December that the accounts showing one transaction and a zero balance were service accounts set up by NDB for the purpose bond transactions on maturity for 24 hours for transfer purposes. Review of the report did find a lack of clarity pertaining to Bandaranayake’s returns in 2001 that may have been misplaced and could have been clarified by counsel for Bandaranayake.

The third finding of guilt was the most flimsy, the review found, since a third party cannot be found guilty on the basis of a kinsman being prosecuted. Some analysts have also made the claim that no person could be found guilty for the potential to commit misdemeanours at a future date.
The three man committee was never officially commissioned in writing and their review was therefore, entirely unofficial.

It was on the same day that the Independent committee was unofficially set up by the President that UPFA Hambantota MP, Namal Rajapaksa, a young lawyer himself, was to present the Judicature Act to President Rajapaksa and inform him that there might be a provision in the Act to effect the Executive removal of judges. President Rajapaksa asked Prof. Peiris and Secretary Weeratunge to look into the Act and report the facts to him about what the powers contained therein were. This explanation never transpired.

Following the vote on impeachment being taken in Parliament on 11 January, the President was still contemplating his options. It was becoming clear to his aides that the President did not want to place his signature on Bandaranayake’s removal papers unless there was absolutely no other avenue to affect her exit. Once again, he appealed to ex-CJ Silva, who informed him that despite the Committee’s findings, constitutionally there was no provision for an independent committee to review the PSC findings. Silva claims he urged the President to reconsider, even on Saturday 12 January after the vote had passed with a massive majority, and simply allow Bandaranayake to step down in six months. It was following this consultation that Presidential Spokesman Mohan Samaranayake was to report to the media on Sunday 13 January, that there was no provision in the Constitution for a review of the PSC decision.
The rest, as they say, is history.

Fires across the seas

But even as Bandaranayake’s legacy is gradually fading within Sri Lanka’s borders, externally, the fires fuelled by her removal are only just igniting. Sri Lanka is to host the Commonwealth Heads of Government Meet (CHOGM) in November, but with Commonwealth organisations including the Commonwealth Secretary General bearing down on Colombo regarding Bandaranayake’s unlawful removal, the venue of the prestigious summit is causing the organisation immense headaches.
Canada, a member of the Commonwealth Ministerial Action Group, the decision making working group within the organisation, has called for Sri Lanka as the venue being high on the agenda when the Group meets in April this year. Interestingly, the CMAG meeting will immediately follow the conclusion of the UNHRC’s 20th Session in Geneva, where the US, backed by its allies, is poised to float a second resolution against Sri Lanka, more sternly worded and calling for more urgent action on the part of the international community regarding the country’s lack of progress on post-war reconciliation and accountability issues.

This claim is likely to be buoyed by sentiments expressed by UN High Commissioner for Human Rights, Navanetham Pillay, who said last week that Bandaranayake’s impeachment was a ‘calamitous’ setback for the rule of law in Sri Lanka and warned that the appointment of her successor who has repeatedly defended Sri Lanka in Geneva against mounting allegations of war crimes, as Chief Justice, eroded the country’s claims that it could independently investigate alleged human rights violations by the authorities. Needless to say, the impact Bandaranayake’s removal will have for Sri Lanka’s efforts to ward off an international mechanism to study war time excesses will be devastating and is still not fully comprehended by regime officials. Except perhaps by Presidential Special Envoy on Human Rights Mahinda Samarasinghe, who having led the country to Geneva for several years now, realises the writing is on the wall and warned the President and other senior administration officials about it at the beginning of the impeachment crisis. The Government hit back at Pillay earlier this week, with a private diplomatic communiqué by the Ministry of External Affairs finding its way into the public domain, in which the Ministry accuses the UN Human Rights Commissioner of bias, prejudgment and blatant interference in a country’s internal affairs. None of this is likely to help Sri Lanka’s cause, since Pillay, who is constantly personally vilified by Sri Lankan officials, is set to submit a report to the Council in February on Sri Lanka’s progress.

Irking New Delhi

India, which helped to water down the March 2012 Resolution against Sri Lanka by intervention at the eleventh hour, cannot be counted on for much support this year either, analysts say, given the Government’s continued hardline on the ethnic question and its decision, late last year, to repeal the 13th Amendment that sets up provincial administrations including in the country’s north and east. Colombo has repeatedly assured New Delhi, after the conclusion of the conflict in 2009, that the 13th Amendment would be the basis upon which the Government would reach a final power sharing agreement with the Tamil community. As the days wear on, post-impeachment, it is becoming increasingly likely that soon after the Government enacts the 19th Amendment to the Constitution, to reduce the term of the Chief Justice and make Standing Orders law, the regime will introduce the 20th Amendment, to repeal 13A and put an entirely different system in its place. Naturally, none of this is sitting well with officials across the Palk Straits, who realise that while the repeal may come after March 2013, once the heat from Geneva is dissipated somewhat, it is nevertheless, very much on the cards.

With its artificially constructed two thirds majority in place, the Government is enacting legislation at a hectic pace, with barely a murmur from the Opposition benches. On Tuesday, the Code of Criminal Procedure (Special Provisions) Bill was enacted, introducing the Draconian 48 hour detention period for suspects arrested without a warrant, in contravention of all accepted principles in the modern world regarding arbitrary arrest and detention. The Government claims it would ‘help’ the investigation process, human rights activists have decried it as oppressive, the Supreme Court ruled it was unconstitutional and required a special majority to pass in the House. Commanding that majority, the Government proceeded with the enactment, as it did with the Appropriation Bill and the Divi Neguma Bill in the recent past.

Hectic legislation

If there is something terribly wrong with the fact that the Government has repeatedly passed legislation the Supreme Court has determined constitutionally unsound, using a special majority rather than a review of the draft legislation and their re-presentation with amendments, it does not seem warrant public discussion, even on the part of the Opposition. Assured of this free pass, the Government is now allegedly preparing to bring changes to the Financial Regulations that will debilitate the Auditor General’s Department, another institution that provides some semblance of checks and balances on the untrammelled spending power of the regime.

UNP MP Karu Jayasuriya warned this week that the recent protests by Government audit officers outside Parliament, was indicative of an emerging clampdown on the Department. Treasury Secretary P.B. Jayasundera in October last year, claimed that the Financial Regulations needed to be amended because the current regulations create a paper trail that provides the Auditor General ammunition to project bad governance in the country. Jayasundera wants the peoples’ representatives to have carte blanche, financially speaking, to “meet the aspirations” of the people. Undoubtedly, those new regulations, when proposed, will pass in the House of Representatives with a thumping majority.

Bodhu Bala Sena

Concerns are also being raised internationally about the growing intolerance of Muslims, led by a Sinhala chauvinist group calling themselves the Bodhu Bala Sena with a heavy contingent of saffron-robed monks at their helm. The group is agitating against what it calls Muslim infiltration of the Sri Lankan food and cosmetics industry, the alleged conversion of Sinhalese girls marrying Muslim youth and all manner of other atrocities being allegedly perpetrated on the majority community by conspiring fundamentalist Muslims. Incongruously, a leader of the Bodhu Bala Sena group is advocating that Sri Lankan laws be changed to permit a Sinhalese man to wed five women, in order to propagate the Sinhala race.

Many of the claims by the group would be funny if they did not project disastrous communal tension and if they were not being given a free pass by the authorities to rage against Muslim places of worship and Muslim enterprises. Justice Minister Rauff Hakeem denounced the violence in front of No Limit Maharagama this week. Not a single arrest has been made following the riot. Minister Hakeem bemoans the impotence of the law and order machinery that remained mute in the face of this hate speech and violence perpetrated against a minority community. But critics say his Party continues to be a key ally of a ruling regime that is – even tacitly – promoting this demonisation of the other without acting with decision against those who try to inflame communal passions.

UNP Kegalle District MP, Kabir Hashim is reportedly deeply concerned about the anti-Muslim trend and even raised the issue at the party’s Working Committee meeting held on Monday (21). Hashim told UNP Leader Ranil Wickremesinghe that the UNP has always stood for communal harmony and commands the support and goodwill of all minority communities in the island. He said that it was the duty of the UNP to be proactive in this situation and ensure that the rabid passions of chauvinists being given a free hand under the ruling administration do not allow the country to lapse back into violent crisis.

If the handling of the impeachment crisis was anything to go by, the country’s main Opposition party will have little role to play in determining the trajectory of this latest onslaught against a minority community. Hatred and intolerance of the other and the creation of enemies, domestic and foreign has become so much a part of the national lexicon, largely perpetuated by the incumbent political leadership, that it has created the space necessary for the emergence of a movement such as the Bodhu Bala Sena. Whispers of its initial activity, actively supported by some members of the ruling coalition in the beginning, went largely ignored and like all monsters, it has grown quietly in the dark, threatening hatred and violence that a country coming out of 30 years of ethnic strife should have learned by now, to remain constantly vigilant about.

With opposition to the removal of the country’s most senior judge growing gradually weaker, the legal fraternity now resigned to its fate and the nation at large returning to the pre-impeachment status quo, the Shirani Bandaranayake impeachment, its political face, unlawful process and consequences for Sri Lanka’s future as a constitutional democracy, will be relegated to being of academic interest only. The regime counts on the citizenry continuing to be woefully ignorant of the damning repercussions the entire process has had on the peoples’ rights and fundamental freedoms. Unused to reacting instinctively to injustice and the stripping away of freedom, de-sensitised to it perhaps by three decades of conflict and life under emergency rule, many political analysts feel the aspirations of a majority of Sri Lankans do not include democracy, civil liberty and the rule of law.  Sri Lankans live a charmed life, only really burdened by economic and bureaucratic concerns, concerns that some analysts say, could be abated by one stroke of the Executive’s pen. Some theorists believe that it will take economic prosperity, for a people to begin yearning for different things – liberty, justice and righteous governance. And then given a choice, a people will always choose “freedom over tyranny, democracy over dictatorship and rule of law over the rule of the secret police.” Perhaps Sri Lankans do not realise, at this juncture of their history, that the choice is theirs.

Courtesy Daily FT