By Sarath Wijesinghe –

Sarath Wijesinghe

Is Democracy and Judiciary in crisis under Good Governance?

A Government should be democratic and Independent under Good Governance which is the standard expected by the IMF World Bank and similar worldwide NGO’s as a condition to provide funds to be utilized to promote development. They require accountability for the funds they provide and Independence of Judiciary in States they have chosen to monitor to have direct and indirect control over. Sri Lanka is a model democracy in Asia enjoying democratic rights and ideals since 1935. The JVP insurrection that killed over 60 000 youngsters and the LTTE Issue that claimed the lives of over 27000 soldiers and substantial number of of LTTE cadres and civilians are unfortunate black spots in the history not to be repeated at any cost. LTTE killed more Tamils than Sinhalese and conflicting reports are given as to the loss of lives- Some say it is around 100,000 including the civilians and soldiers. It is time for us to avoid any more conflicts and blood bathes as the country is now resolved and ready to embrace and practice democratic ideals which are not alien to us.

Election held on January 8th under Rajapaksa regime has been extremely peaceful and the transformation of power was exemplary. Rajapaksa came to know of the election results at midnight and left the official residence peacefully at 5.30 in the following morning. Sirisena promotes a new political culture based on reconciliation and harmony with all political groups. Rajapaksa is mooting development, national security and national pride and a political culture based on nationalism and love for the Nation. Good Governance will promote a good political culture to the citizens to lead a peaceful and prosperous life in dignity. Do we enjoy good governance today is the main moot issue to be decided at the main decision day of the century on 17th of August.

Power Struggle and Cold War between Rajapaksa and Sirisena

The message conveyed by Sirisena’s victory with a slender majority is loud and clear by ousting Rajapaksa who developed the country after having eradicated terrorism that engulfed the Nation over 30 years. The second lap of Rajapaksa’s tenure in office was concentrated on development until the general election on 8th January when he was unexpectedly ousted by Sirisena to the amazement of many leaving the main beneficiary as Wickremesinghe who was appointed Prime Minister with executive powers although without mandate from the entire Sri Lankan electorate. Rajapaksa’s legacy of wiping out the LTTE in what the world considered an unwinnable war made a positive impact on both elections for him which led to resounding victories which are now a part of our history. But on 8th January the electorate believed the voice of the opposition and NGO’s on allegations of bribery and corruption charges of Rajapaksa’s team and changed one of the most stable powerful and peaceful governments in the world. There is a school of thought that considers this a part of the regime change in the Middle East and other countries. Iraqi, Libya, Syria, Afghanistan and many other countries in the Middle East are now under the influence/control of ISIS, the richest terrorist organization in the world which has now captured large territories from the counties in the Middle East that are now destabilized. These interventions have resulted in a breakdown of international peace and security.

Surprisingly, Rajapaksa who is immensely popular appears to be fast bouncing back with strong support from the grassroots and village based electorate who a benefited immensely from his development schemes, infrastructure developments, agricultural development and all other areas including the second International Airport and the Hambantota International Harbour on the famous silk route used historically to reach Asia by the Arab, European, Chinese and many other sailors worldwide. The news is that he is recovering fast despite the cold war with Sirisena who is obliged to the UNP for backing him to win the Presidential Election. Much of the electorate have been dissatisfied by the moves of the UNP led government to halt many of the previous administrations ambitious developmental projects. It is no secret that Sirisena is doing the best possible to prevent Rajapaksa’s re-emergence.

General Election on 17th August is crucial as now there is a clear demarcation of two main groups surrounded by the small parties. UNP led by Wickramasinghe campaigning with JHU Sinhala Nationalist party, transformed SLMC Main Muslim party and the party led by Rashard Bathiudeen, Upcountry Tamil Parties led by Digambaran and few groups. TNA the Tamil Nationalist parties will help UNP to form a government at a time of necessity to rule. SLFP is de jure (legally) led by Sirisena as the Chairman but in fact de facto (in practice) led by the charismatic leader Rajapaksa who is assisted by MEP led by Gunawardena, and other small parties led by Weerawansa and Gammanpila. JVP is contesting independently aiming to be a strong opposition voice and Sarath Fonseka too is contesting independent. Tamil parties including TNA, LTTE affiliated split group, Upcountry Tamil parties, Muslim parties led by Hakeem and Bathurteen will be voted on racial basis may be in line with UNP Rajapaksa being the main enemy of all. The real struggle will be between the main two camps to get the majority out of around 190 MPs assuming JVP and other parties to get around 35. How will the 190 PMs will be divided between the two main camps is the main and crucial issue to be decided by the electorate at the general elections. People will decide it at the general election.

The power struggle between Sirisena and Rajapaksa is in the public domain. A cold war has emerged to the surface today and letters of exchange and statements and counterstatements are in the air. Sirisena is in a difficult situation with a diminishing minority support in the SLFP and obligation to UNP and Wickremasinghe. His compromising formula is a Government of SLFP, UNP and some small parties for which the SLFP is vehemently against. It is informed that Rajapaksa is gaining grounds with his support from the village and the SLFP rank that depend on him for victory.

Injunction on Friday evening before the court vacation

Then came the surprise on Friday the 14th evening – just before the District Court was closing for vacation for two weeks, a restraining order was obtained on the SLFP General Secretary Anura Priyadharshana Yapa and UPFA General Secretary Susil Premajayanth, suspending them from the posts of Secretary General, membership of Executive Committee, memberships of the party and from the post of National Organiser (Premajayantha). This was an ex -parte (only in the presence of the Petitioner) court order in the District Court by District Judge extending the returnable date up to 28th of august for the aggrieved parties to answer. It is unusual that the injunction was obtained on the Friday evening when the election is on Monday and the courts are closed on weekends, so that the enforcement of the order will be effected before the elections. This suggests a mala fide (in bad faith) strategy to shut the door for the two secretaries for the appointment of National list Members of Parliament which are going to be key deciding factors in forming governments. National List members are appointed based on the number of MPs elected and the signatures of the two suspended secretaries are necessary for the appointments to be legal and affected. Now that Sirisena has appointed his two nominees as secretaries, the appointment of the substantial number of national list MPs will be done at the conclusion of the general elections whilst the court is closed, offering the affected parties no redress. Considering the implications of such a manoeuvre, the onus would have lied with the judge to question the motives of this action within the context of the election and most importantly why the Elections Commissioner was not informed and was excluded from the process. It is established within the constitution that bar criminal matters, such procedures come under the direct authority of the Commissioner. It is time for future lawyers to develop and maintain the great cultures of Hulftsdorp based on great values of practice which must not be undermined by such underhand tactics that betray the will of the people. It is understood that both parties are getting ready for court battles expecting the judges and the system to be impartial with good governance.

Local Legal Implementations

But the process and the procedure are not that simple and straightforward. There are issues of morality and legality. It is not legal to obtain an ex-parte order without noticing the Commissioner of elections when he has powers even to override the Executive President and courts on matters pertaining to the election until the end of the general election. This will be the main litmus test on the fearlessness and impartiality of the election commissioner who go down in Sri Lankan history based on the decision taken on this issue. Article 104 of the Constitution clearly states that the jurisdiction of all matters related to the election are vested in the Supreme Courts which states as follows:

Article 104. ‘The commissioner of elections shall exercise perform or discharge all such powers durries for functions as may be conferred or imposed on or vested in him by the law for the time being in force relating to election to the office of President of the Republic and of Members of Parliament, and to Referenda or by any other written law.’

Obtaining a supressing order and not disclosing all relevant materials in a court of law is immoral and contempt if it is established that it is done mala fide or for mischief. It is unusual and immoral to seek jurisdiction at the eleventh hour of the weekend just before the Election with the intention to shut the other party unreasonably. The worst scenario in this episode is not making the Election commissioner a party to the decision and ignoring the Supreme Court which has the exclusive jurisdiction on election related matters, wilfully to misguide and misuse the circumstances to the benefit of the plaintiff resulting in a clear miscarriage of justice. The article is abundantly clear on the power and jurisdiction of the Commissioner of Elections and the procedure to be adopted.

International Implications

Apart from the legal and local implication there are international issues when Sri Lanka is surrounded by large number of Foreign Observers, Diplomats and Non-Governmental Organisations when the country is expected to maintain and uphold Good Governance and Independence of Judiciary. If the Judges wait until late night with prison vehicles parked in the court premises to take remand the suspects to prisons, and the system is used on weekends and vacations to shut the aggrieved party from making use of the due rights and process based on due process, it is clear there would be a major crisis in the system especially when the president of the Country is an indirect participant of the case and the issue is of paramount importance to the future of the Nation.

“Lord Erskine May” who is a world authority on Parliamentary and Election procedure is clear on this issue. His book the Treatise Parliamentary Practice On (24th edition) on privileges proceedings and usage states that no one has the right to change the office bearers of the political party once the Parliament has been dissolved and elections have been noticed. No court has the jurisdiction to make orders detrimental to the party. Until the conclusion of the election no court or tribunal can interfere, interrupt or intervene on the status quo of the candidature of the Secretary General. This could not be done even by the leader of the party as the Secretary General of the party is supreme. The two aggrieved parties are contestants and proposed by the President of SLFP as possible contenders for Prime Ministerial race with other seniors named.

Democracy, Independence of Judiciary and Way Forward

Judiciary has to be independent and needs to be kept away from the other branches of the government, Influence of the Executive, Ministerial or any other interference which erodes the principles of judicial values. Justice should not only be done- it must seem to be done, is the famous adage on the independence of judiciary. Judges as well as the elected members are in glass boxes in public and should take extra care in performing the duties and serving the public. Judicial acts are to be taken carefully and impartially without fear and/or favour or expecting favours in future such as promotions and monetary benefits. In the democratic system of government powers are vested in the people who rule either directly or through elected representatives though institutions established under respective constitutions. We are at the main crossroads of our voyage of success and prosperity in our nation and the decision taken on 17th August by the electorate will decide the fate of our nation and the future generation. It is time to shed petty differences and think in terms of the people of the nation who are awaiting our help. Election should be free and fair. Judiciary should be free and fair and less complicated without traps. Democracy and good governance should be practical and effective. We wish and pray the citizens will take a collective decision for the peace, development and prosperity of our people.

*Sarath Wijesinghe – former Sri Lankan Ambassador to UAE and Israel under the Rajapaksa regime