By Dharisha Bastians –

Dharisha Bastians

In the end, the result was a foregone conclusion. As the third week of 2013 dawned, Chief Justice Shirani Bandaranayake was forced out of office and Mohan Peiris, confidant and staunch ally of the Rajapaksa administration was ensconced at the helm of the judiciary. But perhaps Bandaranayake’s fight-to-the- death position inflicted greater wounds than are currently visible. The administration garrisoned the superior court complex in Hulftsdorp on Tuesday, bringing riot squads and elite special forces personnel on site to prevent the country’s first female Chief Justice from entering the premises. It was clear very quickly that the regime was highly insecure about its decision to appoint a successor, whose legal claim to the position is tenuous at best after the highest courts of the land ruled that Bandaranayake’s removal was illegal and constitutionally unsound.

“The world will know that free men stood against a tyrant, that few stood against many, and before this battle was over, even a god-king can bleed.” –        Leonidas, 300 (The movie)

On Friday, 11 January moments after Speaker of Parliament Chamal Rajapaksa announced the results of a vote on the impeachment motion against Chief Justice Shirani Bandaranayake, fireworks lit the night sky outside the Parliamentary Complex on the banks of the Diyawanna Oya where history had been made. The beautiful Geoffery Bawa designed building comprises several balconies, terraces and foyers, with stunning water views across the lake. On a foyer of the second floor, a group of men in suits, stood in a semi-circle watching the fireworks display across the water that had been arranged by the Sri Lanka Navy unit at Parliament. In the centre of the circle, stood Defence Secretary Gotabhaya Rajapaksa, flanked by several officials and Ministry secretaries and Director of the Media Centre for National Security, Lakshman Hulugalle. The Defence Secretary had arrived in Parliament at about 4 p.m. a few hours before the vote on the impeachment was to be taken. The high security arrival caused a stir in the Parliament Press Room on the third floor, which speculated that President Mahinda Rajapaksa had entered the building in a last minute attempt to sway reluctant UPFA legislators to vote for the impeachment motion. In the end, such manoeuvres were unnecessary, with 155 members of the 225 seat legislature voting overwhelmingly to impeach the country’s fourth citizen. Notably, Minister D.E.W. Gunesekera and Tissa Vitharana abstained from voting, as per the dictates of their parties, while UPFA National List MP Rajiva Wijesinha who has openly criticized the impeachment process, also refrained from casting his vote.

Opposition concerns raised during the debate about the ruling of the Supreme Court regarding the legality of the committee that probed 14 charges against Bandaranayake fell on deaf ears, with Government mouthpieces like Wimal Weerawansa and Rajitha Senaratne leading the charge on the Chief Justice’s alleged sins, misdemeanours and treasonous agendas.

Even as the debate was ongoing, several hours before the vote was counted, the Secretary General of Parliament and several clerical officers were hard at work, cloistered in the Committee Office drafting the resolution of impeachment against Bandaranayake that was to be signed by Speaker Rajapaksa and handed over to his brother, the President, later the same night. The eagerness with which the resolution was being drafted however was not reflected in the manner in which the Government went about its legislative business on that crucial day, with the UPFA having failed to include the vote on the resolution of impeachment in the Order Paper or Parliament agenda for the day, including in its stead the motion of impeachment against Bandaranayake that was tabled in Parliament and included in the order paper on 6 November.

One last attempt

Waiting for the last possible moment to strike, the combined opposition – sans the JVP led DNA which boycotted the entire debate saying it was an unconstitutional farce – charged at 6:30 p.m. that a vote could not be taken because the resolution and vote was not part of the agenda for the day. TNA MP M.A. Sumanthiran told the Speaker that if Parliament was debating on the motion of impeachment, the next thing on the agenda would be for the Speaker to once again appoint a select committee to probe the charges contained in the motion. The furore resulted in an exasperated Speaker suspending the session for 10 minutes at 7 p.m. in order to study precedents and give a ruling on the issue. Irritated at the last minute hiccup, Speaker Rajapaksa asked senior UNP Parliamentarian and former Speaker Joseph Michael Perera why the opposition had decided to bring this issue up at this late stage. Perera shot back that it was up to the opposition to raise matters whenever they wished. The suspension lasted longer than the prescribed 10 minutes, but the Speaker returned to the Chair at 7:30 p.m. with the inevitable ruling that the motion was sufficient notice on the agenda for the vote to be taken. Opposition legislators railed against the ruling later saying that the motion of impeachment contained 14 charges against Bandaranayake, whereas the Select Committee found her guilty only of three and a proper resolution of impeachment put up for voting would have contained all that information including the findings of the PSC. But the UPFA majority Parliament had its way and the vote was taken, irrevocably relegating Shirani Bandaranayake to defeat, despite her consistent victories before the law which found the process to be profoundly flawed and constitutionally unsound.

Pro-Government demonstrators flooded the streets outside Parliament, where they had been transported in dozens of buses from places as far off as Polonnaruwa. They had spent the day sightseeing around the Parliament grounds and waterways. SLFP insiders claimed that several Ministers had been upbraided by senior regime officials for not doing enough to mobilize peoples’ support for the Government’s latest scheme. The response was to haul masses of people to the capital in buses where they could sightsee and roam all day in exchange for putting on a raucous party at sundown when the impeachment was officially passed in Parliament.

Firecracker debris covered the asphalt on Parliament Road as the mob cheered the President and danced on the streets to celebrate the ‘peoples’ victory’. Outside the gates of the Chief Justice’s official residence at Wijerama Mawatha, crowds of jubilant protestors that had camped out there from morning demanding her resignation, cooked milk-rice and partook of their meal soon after the results of the vote was announced. They lit firecrackers and partied late into the night, when Government parliamentarians including PSC Chairman Anura Priyadarshana Yapa arrived on the scene to greet and address the crowds. Throughout all this hostile merry-making that took place outside her residence, Chief Justice Bandaranayake, her husband and her son were inside the house that night, unable to leave the premises or venture outside, her lawyers said.

Last minute doubt

Under the circumstances, speculation was rife that the Presidential Proclamation for Bandaranayake’s removal would be made on Friday night. Government circles were buzzing with the information that the letter of removal was ready and waiting for the President’s signature. But even at the eleventh hour, there were reservations in some quarters of the administration. It was clear that the members of the ruling family had strived hard to keep from being associated with this dubious impeachment process, deliberately keeping their names out of the impeachment motion, the select committee process and even the impeachment debate. Designated propagandists had been provided the necessary ammunition instead to carry out a campaign to completely destroy Bandaranayake’s credibility. It seemed that despite the major victory in Parliament, President Rajapaksa, being the shrewd politician he is, was loathe to sign the papers sacking her, no doubt aware of the international furore it would cause and the further erosion of legitimacy that it would cost his regime. It would have been preferable if she resigned in a dignified manner, Government sources explained, so the President would not have to sack her. It is a hallmark of the Rajapaksa governance style that removals and recalls of officers are often delegated to lesser officials, the regime loyalists appointed to those high posts remained convinced that the President was in no way responsible for their dismissals.

And so throughout Saturday, the much anticipated news of her sacking did not come. The Government leaked a story that Bandaranayake’s lawyers had asked the President to give her time till April, when she would resign of her own accord. The claim was vehemently denied in writing by the Chief Justice’s legal team. Sources close to Bandaranayake say that messages were sent to her through various emissaries, asking her to step down from office voluntarily and the Government would in turn ensure she received her pension. Bandaranayake has been a member of the country’s apex court for 16 years, since she was appointed to the Supreme Court by President Chandrika Kumaratunga in 1996. The response was a firm and repeated ‘no’ and an irate President’s Office finally dispatched her letter of removal with a Presidential aide and a PSD officer on Sunday (13) morning. Bandaranayake immediately began packing up her official residence in Colombo 7 and was seen all weekend transferring personal belongings to her private home in Rajagiriya.

A successor

The Government meanwhile moved swiftly into gear, readying to appoint a new Chief Justice and have the dust settle on the ugly, costly impeachment struggle as soon as possible. There were three names in the mix – at least for appearances sake. Two were Supreme Court judges – one very senior and the other very junior – that the Government claimed they were considering for the position. But from the outset, the legal fraternity was convinced the choice would be none other than former Attorney General and Cabinet Legal Advisor, Mohan Peiris. There was however necessity for the regime to at least make noises about the fact that there were several contenders for the position, since certain hints of assurances had been provided to some individuals who had recently become pundits for the regime-controlled state media regarding the legality of the impeachment process, the deficiency of the Supreme Court ruling on Article 107 (3) of the Constitution and Bandaranayake’s alleged misdeeds. Former Chief Justice Sarath N. Silva for instance was widely quoted in the weekend state controlled press, that Bandaranayake’s successor should be a “senior judge” currently serving on the Supreme Court bench. But by Sunday evening, the writing was on the wall for Silva and other pro-impeachment voices when it was announced that the President’s recommendation for Chief Justice would be none other than Peiris. The name had been sent to the Parliamentary Council for ratification when the council convened on Tuesday.

While it had long been speculated, the fact that the regime had taken such a bold step to name a clear ally to the revered position at the head of the country’s judiciary, spoke volumes about how gravely wounded it had been by Bandaranayake’s assertion of independence in her latter months on the bench. Peiris was the firm choice of two powerful members of the ruling family, both of whom were insistent that the other Supreme Court judges be bypassed and the former AG appointed in order to ensure that it would never have to face another gruelling impeachment ordeal again.

Garrisoned

In anticipation of Peiris’ appointment on Tuesday, the security establishment moved armed STF personnel into the Supreme Court premises overnight on Monday. By early morning on Tuesday, the Superior Court Complex had turned garrison. Truck loads of STF personnel were offloaded on Hulftsdorp Hill outside the building in which the apex court sits. Police anti-riot squads and armoured vehicles lined Hulftsdorp Street. Yellow police barricades had been set up outside the main entrance to the SC complex, with a ring of Police personnel in front of the metal, to reinforce the shield. Journalists were barred entry into the Complex and when the Lawyers Collective turned up and attempted to break down the barricade and allow the media personnel in, the police stood their ground, refusing to let anyone pass. The lawyers held a daylight vigil, blowing out candles to symbolize ‘darkness at noon’ with the sacking of Bandaranayake and the appointment of Peiris to the high post, which they said marked the death of judicial independence.

Mohan Peiris took oaths at noon at Temple Trees on Tuesday, with Presidential Secretary Lalith Weeratunge and his family present. Soon afterwards, with the Government keen to establish the new regime at the Supreme Court as quickly as possible, Peiris journeyed to Hulftsdorp amid tight security, and entered the complex through Adikarana Mawatha that had been sealed off to the public since dawn by STF and police personnel. Soon after the new Chief Justice had entered the premises, police relaxed security. The barricades were removed and regular entry and exit procedures resumed. On the fifth floor of the Superior Courts Complex, Peiris entered his chambers, where religious leaders evoked blessings upon him. A large group of lawyers – reportedly members of the SLFP Lawyers Association – were present to felicitate him. Before sitting down to tea with the lawyers, Peiris spoke warm words of greeting, asserting that he was ‘one of them’ and that he would uphold the rule of law during his time in office. Police told journalists and lawyers openly that they had been instructed to ensure Shirani Bandaranayake did not attempt to enter the Supreme Court that day. Police went so far as to check the vehicles of lawyers and judges entering the premises on Tuesday, to ensure Bandaranayake was not travelling to court with them. The paranoia was palpable, senior lawyers said, with Supreme Court security being instructed by police to verify the identification of every lawyer they did not recognize. Bandaranayake was expected to arrive in court on Tuesday morning – since she does not recognize her removal as being legitimate – but finally decided against it after it became clear that the regime would not hesitate to use force to prevent her entry. Sources close to Bandaranayake claimed that she had received repeated messages from the ruling administration to refrain from going to court because police and STF had been deployed to prevent her entry.

Dramatic exit

Despite this move to keep the impeached Chief Justice out of the limelight however, she continued to dominate the headlines after an aggressive attempt by the police to prevent her speaking to journalists as she left her official residence on Tuesday evening. SSP Premalal Ranagala who had also been present on the scene at Hulftsdorp, was directing operations at Wijerama Mawatha where journalists stood opposite the official residence from 2 p.m. waiting for a glimpse of Bandaranayake since a brief statement had been promised to the press as she was departing. The boisterously jovial SSP walked up to media personnel and informed them that they were waiting in vain, since the Chief Justice would not be permitted to speak to the media inside or near the official residence as she was now nothing more than a ‘civilian’. Journalists shot back that when crowds of demonstrators gave media briefings and cooked milk rice in front of the official residence, there had been no resistance from the police. They continued to keep vigil for three more hours on the lawn outside the British High Commission. Lawyers for Bandaranayake confirmed that police had refused her permission to address the media from within the precincts of the official residence. SSP Ranagala was stationed outside with his team, to ensure that Bandaranayake would not be permitted an opportunity to speak even once she was no longer inside the official residence. Finally, at 5:30 p.m. when Bandaranayake emerged in the backseat of a red KIA jeep driven by her son Shaveen with her husband Pradeep Kariyawasam in the front seat, journalists stormed the vehicle in an attempt to capture images of her and obtain a brief statement. SSP Ranagala and his team swung into high gear then, demanding that Shaveen Bandaranayake drive out of the residence and Wijerama Mawatha faster, wrestling media personnel out of the way and shouting themselves hoarse in increasingly aggressive tones. Besieged by journalists and cameramen on either side of the vehicle, with several more in front, and screaming policemen insisting that he remove the vehicle from the area as soon as possible, an angry Shaveen Bandaranayake raised his hands in surrender and shouted back at the officers that he could not move as long as there were people directly in his path. Hanging on the doors of the jeep, media personnel followed the vehicle’s progress. Footage emerged later that night of beleaguered Chief Justice Bandaranayake torn between giving journalists a statement and sick with worry that the police would get violent towards her son for not driving away fast enough. One video captured Bandaranayake interjecting during her own statement about standing up for the people to say“Putha, ganna wasthuwa” (Drive, precious son) and then urge her husband to ask Shaveen to drive on as aggressive police officers bore down on the vehicle and media personnel refused to get out of the way. The desperate attempt of the police to ensure she was not provided an opportunity to speak became the story of the day, with most of the country’s mainstream media and international newswires present to witness the scenes. “I am innocent, I am innocent,” Bandaranayake cried through the car window before the vehicle drove on towards Rajagiriya where she and her family will now set up residence.

In a poignant statement issued soon after her departure, Bandaranayake asserted that she was still lawfully, the Chief Justice of the republic. “In my country, where the rule of law is the underlying threshold upon which basic liberties exist, I still am the duly appointed legitimate Chief Justice,” the statement said, echoing the fears and hopes of all those activists that rallied against her illegal removal.

Notably, the beleaguered Chief Justice and her family left the official residence largely alone. There was no opposition present to protest the police behaviour, no Bar Association to extend their solidarity. The main opposition UNP has maintained relative silence since the impeachment resolution was passed in Parliament, barring a few isolated statements.

Jumbo concerns

Since the parliament debate on the impeachment on Friday (11), UNP Leader Ranil Wickremesinghe is planning an inquiry against his Deputy Leader Sajith Premadasa who requested time from the TNA on Friday to speak at the impeachment debate, because his own party had not allocated time for him. The only UNPers to speak at the final day of debate were John Amaratunge, Joseph Michael Perera, Lakshman Kiriella and Tissa Attanayake. The TNA informed Opposition Whip Amaratunge that they would grant a portion of their time to Premadasa for a speech. This irked Wickremesinghe who ensured on Friday that only the UNP old guard would be allocated time for speeches, despite the utter disappointment this caused to several backbenchers and more vociferous members of the party’s Parliamentary Group. The impeachment saga has seriously eroded public confidence in Wickremesinghe who adopted various mysterious stances on the issue, purporting to be a master strategist and finally failing to affect any kind of opposition in the face of a blatantly illegal and unconstitutional process. Despite Wickremesinghe’s successive gag orders to his party members however, the UNP reacted instinctively to the injustice perpetrated on Bandaranayake during the trial by Parliament. UNP MPs, Kiriella, Karu Jayasuriya, Mangala Samaraweera, Eran Wickremaratne, Harin Fernando, Harsha De Silva and even relative newcomers like Sujeewa Senasinghe and Ajith Perera took the impeachment issue head on, decrying it as a witch hunt and charging that Sri Lanka was well on its way to becoming a constitutional dictatorship. Bewildered at the UNP Leader’s strange positions on the issue, several MPs considered fiercely loyal to Wickremesinghe even attended court on 3 January, to hear the Supreme Court ruling on the constitutionality of the PSC. A furious Wickremesinghe lashed out at the MPs who decided to attend Court. UNP insiders with insights into Wickremesinghe’s thinking claim that although it is perceived that the UNP Leader was somehow collaborating with the Rajapaksa regime, the fact of the matter was that this was far from the truth. Wickremesinghe was simply being cautious not to erode the powers of the presidency or Parliament because he continues to visualize himself on that chair, and when he assumes office, he is adamant to possess the same powers that President Rajapaksa now lays claim to. This is precisely the thinking that is frustrating some UNP MPs that do not wish to oppose the leadership, but also are increasingly convinced that in years to come, Sri Lankans will have to contend with not one dictator, but two. True democrats within the UNP are losing hope that under Wickremesinghe’s reign, there will be an end to an autocratic presidential system, since every Executive President has consistently been worse than the last one.

Be that as it may, for the time being at least, it appears that the Rajapaksa administration has secured its latest victory, Bandaranayake is out, and Peiris is in and all is well with the world. That is until Sri Lanka faces the UN Human Rights Council in Geneva, just over a month from now, with its reconciliation plans fallen by the wayside and following a devastating assault on the last remaining independent institution in democratic Sri Lanka. International voices have already been raised against the unconstitutional removal of Bandaranayake from office. The US State Department Spokesman in a strongly worded statement to the press corps in Washington, said it was time for Sri Lanka to “roll up its sleeves and work on” safeguarding the future of democracy.

International credibility

The appointment of Peiris to the highest office in Sri Lanka’s judicial system is a further blow to the credibility of the impeachment process and the Government’s claim that it was sacking Bandaranayake in order “cleanse” the upper judiciary and preserve its independence. The new Chief Justice carries too much baggage to give this claim credence.

Peiris served on the boards of Lanka Logistics and Rakna Arakshaka Lanka Limited, both companies incorporated under the auspices of the Defence Ministry with the Defence Secretary at their helm. In an unprecedented move, the Attorney General’s Department was brought under the purview of the President during Peiris’ tenure as AG. Until his appointment as Chief Justice on Tuesday, Peiris served as the Cabinet Legal Advisor and regularly travelled to Geneva to defend the country’s deteriorating human rights record. In November 2011, he famously told the UN Committee Against Torture in Geneva that his Government had information that journalist Prageeth Ekneligoda who has been missing for three years this January, was alive and secretly living outside Sri Lanka. He claimed in a question and answer session before CAT that the campaign to win his release was a farce. Seven months later, Peiris answered summons before the Homagama Magistrate, where a habeas corpus petition filed by Eknaligoda’s family in the Court of Appeal has been redirected for inquiry. There in open court, with Ekneligoda’s distraught wife in the room, Peiris rejected the statement he made in Geneva and claimed he could not remember the officer who informed him that the missing journalist was overseas. Adding insult to injury, the former state prosecutor told the court, that the government knew nothing about Prageeth’s whereabouts and ‘only God knows’ what had become of him.

The appointment of Peiris as Chief Justice therefore, marks an epoch in Sri Lanka’s battle against an international war crimes inquiry about lingering questions in the final phase of the Government’s battle with the LTTE. For years since the war ended, the Government delegation’s one defence at the UNHRC with the international community pushing for an international mechanism to investigate violations of humanitarian law in the Sri Lankan military’s final push against the LTTE, has been that it has a vibrant and structured judicial system that is ‘fully capable’ of addressing accountability concerns and investigating and prosecuting those responsible for excesses during the conflict. It has relied on a battered but resilient judicial system to ward off international scrutiny and maintained a stoically, ‘we can take care of our own business,” attitude in Geneva. Come February, all those claims lose credence with the international community. Sri Lanka’s judiciary is now headed by the same legal expert that was part of successive Government delegations that told the international community Sri Lanka was ‘not guilty’ and insisted that the Sri Lankan military had not overstepped its limits. It would be impossible to perceive then, that any ‘home-grown’ judicial review of military excesses would be unprejudiced before the eyes of the international community. In terms of international pressure regarding the setting up of an international war crimes tribunal against Sri Lanka then, the Government has effectively shot itself in the foot.

Standing on the line

It is said about the battle of the Hot Gates, or Thermopylae in Greece in 480 BC, that the 300 valiant Spartans led by Leonidas holding the tiny pass against the might of the Persian Army led by Xerxes were doomed to die, right down to the last man. But a small group of men thousands of years ago, ushered in the Golden Age of Greece by holding out against the army of the King of Kings, preserving a civilization whose influence resonates even today. Historians say that the Spartans bled the Persians so much, inflicted such wounds on that mighty armour, that the invading army lost the will to fight, resulting in their defeat one year later.  Doomed to die though the 300 were, by blocking the only road through which the Persian army could pass for seven days, they heralded the eventual defeat of a mighty battalion.

The outcomes of some battles are written before the first stone is cast. Shirani Bandaranayake’s battle against the might of the ruling regime might have been one such. But the decision of some men and women, to stand ‘right in the line of history’ can often inflict wounds on a juggernaut that prove fatal in time to come. Even the mighty grow battle-weary and vulnerable. Leonidas and his 300 men teach us that. History teaches us that. Perhaps Shirani Bandaranayake will too.

Courtesy Daily FT