By Dharisha Bastians –

Dharisha Bastians

“Democracy demands an opposition party” – Ben Manski, American Lawyer and political activist

The events of 23 November when Chief Justice Shirani Bandaranayake made her very first appearance before the Parliamentary Select Committee were not lost on the ruling administration. Round one had presented a clear winner and elicited mass sympathy for the lady who had fallen foul of the powers that be.

So when the time came for the country’s most senior judge to answer the summons of the Legislative Committee in the second round, necessary arrangements were presumably put in place. The build-up to Tuesday, 4 December was palpable. A poster campaign was orchestrated throughout the capital Colombo. The well-designed posters screamed “Shame Madam” and featured the scales of justice with Sri Lanka on one side and an apartment complex on the other. A budget three-wheeler parade sporting the same placard on their roofs made their way to Temple Trees, many of them stopping to ask Policemen clearing the road for the demonstration where they were to go next. Even as the black coats mobilise support for the beleaguered Chief Justice, the Government is on its own hectic campaign to discredit her.

Golden Key in the mix

On 13 November, Economic Development Minister Basil Rajapaksa held a one-on-one meeting with representatives of the Golden Key depositors in Parliament. At the meeting, during which other senior administration officials were present, Minister Rajapaksa promised that the depositors would be paid in full by April 2013. But there was a condition attached. Some reports about the meeting indicate that the conditions included a requirement that some of the depositors give evidence about the conflict of interest in the Chief Justice presiding over the Golden Key case before the Supreme Court. Golden Key depositors have been losing hope for their deposits for several years now. Undoubtedly, the promise of settlement was a tough carrot to refuse. That’s how the depositors became the first face of the anti-CJ movement in Colombo when they smashed their own share of coconuts and demanded she step down.
So when Tuesday dawned, lawyers and activists said they were not surprised when buses full of people were unloaded outside the gates of the Superior Courts Complex at Hulftsdorp and furnished with placards and posters. Senior lawyers at the courts premises said they had been asked to hoot at the Chief Justice when she passed by. The trouble was, very few of them could identify her. In fact, many of the anti-CJ protestors had no idea why they were outside the courts complex at all, fuelling speculation about the organised nature of the demonstration. It was reminiscent of the ‘spontaneous’ protests against the US-led resolution at the UNHRC in March this year, when hundreds of home-guards from remote provinces were transported to Colombo, gathered outside the Civil Defence Force headquarters in Bambalapitiya and marched to different diplomatic missions in Colombo seen as supportive of the resolution against Sri Lanka.

Proposition demos

The vacuum created by the lack of opposition mobilisation to the move to oust the Chief Justice has created space for the proposition to engage in the process, using means both foul and fair. And in the absence of a credible opposition voice in the struggle to stall the Government’s encroachment upon the Judiciary, the legal fraternity, religious leaders and civil society organisations are stepping up.
On Tuesday, several lawyers effectively laid down the law to the massive contingent of Police personnel stationed outside the Superior Courts Complex just before Chief Justice Bandaranayake left for Parliament. The Police, presumably on instructions were attempting to prevent the media from entering Supreme Court premises. Several lawyers marched up to the gates and informed the Police officers in no uncertain terms that the Courts belonged to the people and not to the Police. “The Police have no right to prevent people entry here,” they charged, escorting journalists in to the premises. Initially Police also attempted to block supporters of activist monk Ven. Maduluwawe Sobitha who is leading the charge against the Government’s interference with the courts, from entering the premises, but capitulated once lawyers intervened.

Chief Justice Bandaranayake left the Supreme Court premises amidst seth pirith being chanted by Buddhist monks and massive gatherings of people both inside and outside the courts complex. Perhaps in anticipation that the anti-CJ protestors would get unruly, the Chief Justice, accompanied by her Instructing Attorney Kandiah Neelakandan and Attorney-at-Law Saliya Pieris, took an alternative route out of the premises. In Parliament, only anti-CJ protestors lined the streets at Jayanthipura junction, and cameras caught the Government’s maverick-in-chief, Mervyn Silva strutting about directing the protestors to say “Parliament was supreme” and exactly where to congregate. Silva, interestingly, also told the press gathered there that the Chief Justice was guilty and asked her to step down. Also in the crowd of protestors at parliament was a UPFA municipal councillor from Colombo, who opposition legislators claim promised three-wheeler drivers free taxi meters if they participated in the protests.

All this adverse publicity on each day that the Chief Justice travels to Parliament to face the PSC is exactly what the Government does not want to perpetuate for very much longer. It is therefore putting all measures in place to move the impeachment proceedings along as soon as possible. The regime fears that with momentum building each time the Chief Justice is summoned to Parliament, public sympathy with Bandaranayake is increasing, and she is being seen as something more than just a judge who had fallen foul of the ruling administration.

In the bigger picture scenario, the Government’s war against the Chief Justice is being seen for what it very likely is – an onslaught on the last remaining independent organ of the State and despite their reservations about Bandaranayake herself, activists are rallying behind her in the interest of protecting the courts. At Hulftsdorp on Tuesday, UNP Provincial Councillor and lawyer, Srinath Perera charged that those leaders who should take the lead on this struggle were backing away.

Symbol of resistance

“Today we can clearly see that the Executive is controlling the Legislature and that the only institution that can prevent ad hoc decisions from being taken, the only institutions that can protect the peoples’ rights is the Judiciary. We are at a point where all of us devoid of class or caste party or ethnicities, professionals intellectuals and all those who love this country must come together to reverse this process that seeks to break the backbone of the Judiciary and install a dictatorship,” Perera told journalists and demonstrators gathered at Supreme Court.

This is in fact the last thing the Government wants – for Chief Justice Bandaranayake to become the symbol of resistance against the regime – and for better or worse, that appears to be exactly what is taking place. Bandaranayake now commands the full support of the powerful legal fraternity in the country, which is mobilising at a hectic pace, heaping litigation against the process and generally keeping the pressure on.

It is for this reason that some Government insiders even claim the process may be over with as soon as this Saturday (8) when the final vote on the Budget is taken. The PSC held marathon sittings on Tuesday from 10:30 to nearly 5 p.m. with only a break of about 90 minutes in between. Yesterday the committee convened again, for the first time without the presence of the Chief Justice. Today, the Chief Justice has been summoned to appear before the committee at 2:30 p.m. but presumably, the committee will convene earlier. Despite this acceleration however, both lawyers for the Chief Justice and Opposition committee members are complaining that there was no procedure laid out for this trial by Parliament and so far, no documentary evidence presented to support the charges against Bandaranayake in the impeachment motion.

Conundrum

Having brought the resolution of impeachment against Chief Justice Bandaranayake, the Government was very confident the pressure would force her to step down from office, paving the way for an appointment of the Executive’s choosing. Instead, her decision to fight the impeachment has created a major conundrum for the regime, which is faced with a conundrum about the charge sheet and the PSC proceedings.

If the Committee finds the Chief Justice guilty, according to Standing Order 78A, the report of the committee becomes a public document. Given the attention both domestically and internationally that the impeachment saga has garnered, the report is likely to be perused by various civil society organisations and international bodies to determine whether due process has been followed and the Chief Justice has in fact been given a fair trial. In order to present such a report, the process must indeed, be beyond reproach and appear to be completely unprejudiced especially in light of the perception of bias already existent because of the committee’s composition and the Legislature’s almost complete submission to the Executive.

It was in this backdrop that at PSC proceedings on Tuesday, the legal representation for the Chief Justice, led by Romesh De Silva PC, requested an open trial. Opposition committee members supported the request, but the seven member Government majority in the committee held sway. The request was denied. A further request made by Bandaranayake’s lawyers to allow a Commonwealth observer or local Bar Association representative to observe proceedings was also denied. The lawyers then raised issue that two Ministers on the committee had rulings given against them by the ‘accused’ and noted a conflict of interest on perceptions of bias. The committee is to deliberate and rule on the matter today, Daily FT learns.

Deadlock

Meanwhile, the Constitutional impasse that was imminent for several weeks since impeachment proceedings were formally begun, was laid bare in Parliament last week when Minister Nimal Siripala De Silva raised a point of privilege about notice being served on Members of the Parliamentary Select Committee by the Supreme Court registrar, as respondents in several petitions filed against the impeachment process and the legality of the PSC. The 11-member committee and the Speaker, who is also listed as a respondent in the petitions have been asked to present themselves in court on 14 December. What ensued following De Silva’s questions would have been a proud moment for the Sri Lankan Parliament, had it not been intrinsically linked to a highly-politicised move to remove the head of the country’s Judiciary.

Opposition Leader Ranil Wickremesinghe who has been chomping at the bit lately to assert Parliament’s superiority over the Judiciary predictably rose to express his views on the matter. “Follow Anura Bandaranaike’s ruling on the matter,” he pleaded with Speaker Chamal Rajapaksa, referring to Speaker Bandaranaike’s historic statement in 2001 about Parliament being supreme and not subject to the dictates of the Judiciary. Several other senior UNP Members including Joseph Michael Perera echoed the sentiments. Elated Government ranks fully supported the Opposition sentiments, in a rare display of legislative unity on the banks of the Diyawanna Oya. One of the few dissenting voices was that of TNA MP and Human Rights Lawyer M.A. Sumanthiran, who claimed that MPs were also bound by the Constitution, which was supreme. He highlighted the instance of when MP Dinesh Gunewardane and former Premier Sirimavo Bandaranaike went to court seeking an order against the Speaker with regard to the 13th Amendment. The JVP maintained a stony silence on the issue, and it is now coming to light why.

JVP to answer notice?

JVP insiders claim that the Party is likely to answer the court summons on 14 December. In fact, the TNA too has expressed the view that it is contemplating on whether its PSC member and Leader R. Sampanthan will answer the court notice. Members of Parliament do not necessarily have to appear before the court, but could send legal representation to file their submissions.
Be that as it may, the move by the Opposition Leader to offer the Government his full-throttled support shocked and distressed even his biggest loyalists within the party. The Speaker, in his ruling on the privilege issue raised, reinforced Parliament’s supremacy and said the courts had no right to question his decisions or serve notice on Parliamentarians. Interestingly, in his ruling Speaker Rajapaksa thanked the Opposition Leader profusely for his inputs and clarification on the procedural issue. Many Wickremesinghe loyalists showed genuine signs of despair after Parliamentary proceedings concluded on Thursday. Some were heard to express the opinion that the UNP Leader should have refrained from saying anything on the issue, and allow this to effectively be, the Government’s show.
But Sri Lankans these days certainly do live in interesting times.

Ranil plays ball

Wickremesinghe, fresh from his massive victory at the Party’s National Convention held last Saturday, is certainly not on the road to garnering much popular support. Since the beginning of this impeachment process, Wickremesinghe has portrayed himself to be a dark horse, with his loyalists very optimistic that he was going to turn the tables on the Government using Parliamentary procedure that he knows like the back of his hand. But when the time came for him to pick his nominees for the PSC, he picked senior party man, John Amaratunga and MP Lakshman Kiriella, both lawyers, both senior UNP members, but neither appearing to have the gumption to withstand the assault from the seven-member Government majority in the committee.

His assertions about Parliament supremacy, Wickremesinghe critics say, he should have kept to himself, instead of helping an increasingly autocratic regime on its way to subjugating independent organs of the State. The UNP Leader’s detractors are seething about the state of affairs, frustrated also by the need to adhere to party discipline or face the Leader’s wrath, especially in light of the sweeping powers he now enjoys following the Party Convention. In fact, Wickremesinghe’s problem might be the fact that he is angrier now at his detractors within the party than the ruling administration and to this end he is prepared even to use the regime’s assistance to destabilise the reform movement inside his party. The heavy Police and STF presence at the Party Convention on Saturday (1) certainly indicated, if nothing else, that somebody in a position of power, badly wanted Wickremesinghe’s position secured. President Rajapaksa in fact wished him well on his success and imparted a few words of wisdom to those UNP reformists urging a change of leadership within the party, saying at a book launch, that “your turn will come”.

Wickremesinghe’s antipathy towards the pro-Chief Justice movement is drawing criticism from all quarters. Recently President’s Counsel and former Attorney General Shibly Aziz met Wickremesinghe and complained that it appeared as if the UNP was doing nothing to prevent the Government from steamrolling the Judiciary with the impeachment.

The trouble with Wickremesinghe, political observers say, is that he appears to implement strategy that is favourable to himself as an individual, but is not seen by the majority of the people as an effective Leader of the Opposition. Despite the flawed PSC process that his own nominees in the committee are complaining about, Wickremesinghe, the guru of Parliamentary procedure, is yet to raise a murmur about the issues inherent to the process. Had he attempted to do so, his claim that the UNP was simply engaging with the procedure in place legislatively to deal with the impeachment issue, would have more credence.

Part of the process

For over a month now, many have also postulated that Wickremesinghe’s reluctance rise against the Government moves to oust the Chief Justice was because it was his intention to allow the regime to falter and lose legitimacy through the process of impeaching Bandaranayake. But in order to sit by and ‘watch it burn’ as the colloquial saying goes, one must obviously also be as aloof and uninvolved in the illegitimate process. In supporting the regime to perpetrate what judges and lawyers and observers throughout the world have called a witch-hunt against Bandaranayake, even in somewhat opaque ways, Wickremesinghe has made himself and by extension his party, very much a part of the process.

A report on the role of the opposition, rights and responsibilities, organised by the Commonwealth Secretariat and the Commonwealth Parliamentary Association at Marlborough House, London in 1998 states the following:

“The Opposition should not only be able to take over as Government but be seen as such. In order to win it had to have the confidence of the people; it therefore had to be viewed as responsible, respected and united and its policies perceived as relevant to people’s day-to-day lives. It needed to use Parliament effectively, to promote a team (not only individual leaders), to continually review its overall approach and ensure that it interacted effectively with independent institutions to formulate new policy.”

The Wickremesinghe-led UNP, despite its Leader’s purported knowledge about Commonwealth Parliamentary practice, is failing in just these areas. The public no longer has confidence in the UNP and is therefore looking alternatives to rally around. This is something a political novice like former Army Chief Sarath Fonseka appears to have a grasp on, despite the fact that he, if anyone, has been dealt a raw hand by the guardians of justice throughout the last two years. Fonseka is in the forefront of the battle to safeguard judicial independence, making an appearance in Hulftsdorp on Tuesday in what can only be called a very shrewd political move, at a time when all eyes are focused on exactly that red-roofed building.

There is very little point in the UNP being wary of creating another temporary hero in Shirani Bandaranayake, if in fact, the very vacuum the Opposition creates by not engaging in the struggle to fight the political reprisals against her is exactly what is turning her into an unlikely heroine and a symbol of resistance against State oppression.

Courtesy Daily FT