15 December, 2019

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Systemic Crisis: It Is Not Over

By Sumanasiri Liyanage

Sumanasiri Liyanage

There is an unusual and unexpected calmness in Hultsdorf in the post-impeachment days in spite of the fact that all traditions and conventions were put aside in the appointment of the new Chief Justice in place of Dr. Shirani Bandaranayake. At the time of appointment as the CJ, Mr Mohan Pieris was a director of many private companies and the legal advisor to the Cabinet. Previously, of course with rare exceptions, it was either a most senior Supreme Court Judge or the Attorney General who was appointed by the President as the CJ. The present appointment is totally outside the legal system. This is somewhat a hilarious occurrence. Previously, a retired CJ was appointed as an advisor to the President; this time a legal advisor was promoted to the position of CJ. Karl Marx would have added, first time as a tragedy and second time as a farce. The system of making CJ after retirement political was replaced now by pre-CJ political training. Hence if he comes up with pro-government and pro-private enterprise verdicts, it would not be a matter to be surprised. It is equally amusing that the ‘big talks’ of the Bar Association of Sri Lanka and the Lawyers’ Collective have come to an end suddenly. One of my friends at the university remarked: “We struck work for nearly 100 days; they have failed to fight back even a day”. In explaining this post-impeachment scenario, I advance further the argument that was outlined in my previous articles on the same subject.

Let me begin with a point that is of relatively less importance. Why has the lawyer community failed to continue their campaign? Lawyers’ struggle has been purely legal-constitutional so that it was grounded on a very weak and fragile basis. Constitution is a ‘text’ reading of which may produce multiple meanings. As a person with no legal background or training, my reading of the text is a layman’s reading. In my reading of the 1978 Constitution, it is totally incorrect to argue that although separation of powers between three organs of the state is clearly specified in it, three organs stand on a par with each other. Article 4 specifies how ‘the sovereignty of the people shall be exercised’. Not only the legislative power of the people but also the judicial power of the people shall be exercised by the Parliament, the difference is while the former shall be exercised by the Parliament directly the latter shall be done indirectly through courts set up by it. Constitution provides measures to ensure the operational independence of the judiciary vis-à-vis the legislature and the executive. However, the judiciary is not an organ of power that is on a par with the legislature and the executive. Secondly, one may wonder why BASL and the Lawyers’ Collective made hair-splitting arguments about the Article 107 (3). Any layman can see that the Parliament can act by using its standing orders over an impeachment motion. I looked at what the 2000 Constitution Draft that some members of the Lawyers’ Collective are well aware of said about the matter. Once again it is verbatim inclusion of what is in 1978 Constitution. Of course, it has proposed to adopt something similar to the 1968 Indian Judiciary Act prior to the acceptance of such an address by the Speaker of the Parliament. That was why I argued in my previous article that the position of the BASL, Lawyers’ Collective and the Supreme Court determination are incorrect. Sri Somnath Chatterjee, a Speaker of Indian Lok Sabha, argued strongly that two organs should act within the boundaries defined by the Constitution. He once remarked: “My humble contention is that no one is above the Constitution. If the Constitution of India has said that no court shall have jurisdiction over the internal proceedings of the legislature, the Court cannot annul it with some sort of interpretation. So, I am hopeful and I believe that the Supreme court, in its wisdom, will not in the future or ever accept any attempt to have such interpretations, which would allow an interfacing supremacy.” It appears that the lawyers have decided to end their campaign partly because of the realization that their reading of the text is not correct.

By emphasizing the ‘legality’ of the impeachment process, I do not reject the view that the impeachment process from the beginning to an end has been a politically motivated exercise. On the contrary, I submit that this so-called legality is the one that has to be questioned and challenged.

Let me now turn to a point of great importance recapitulating the principle argument that I advanced in my previous articles. In Sri Lanka, the state of exception today is not an exceptional state but a normal situation. Of course the process is still in progress. An attempt to increase the number of hours that police can keep a person without presenting to a magistrate from 24 to 48 hours is another step to make this state of exception normal. The Government has already presented a bill to that effect even the Lessons Learned and Reconciliation Commission (LLRC) has recommended to reduce the duration of police custody. Since the state of exception has been established through constitutional means it has to be supported by introducing two incentive and ideological instruments, namely, a system of bribes and promoting Sinhala Buddhist ideology. Renewal of hate campaign against Muslims in Sri Lanka with the support of the Government or the parties belonging to governmental coalition is a clear evidence to the presence of this second element. In such a situation all liberal slogans like the establishment of the rule of law is totally meaningless as many things have been done either by following existing law or introducing new laws or amending existing laws. The tug of war between the executive and the judiciary in the last 3- 4 months is a reflection of the crisis of the system. The executive responded by using the mechanism of impeachment to oust the CJ who had refused to operate within this system. Appointment of Mr Peiris as a new CJ putting aside traditions and conventions is an attempt to patch up once again this decadent moribund system. The silent acceptance of new CJ by the legal community that includes judges and lawyers show that the government was able to succeed for the time-being. Nonetheless, it does not mean that the system is stable or is based on solid ground. Although it appears that everything is hunky dowry, the continuous eruption of crisis and the presence of conflicts on regular basis shows the system prevails not because it can resolve amicably conflicts it encounters but because of the weakness and lack of perspective with regard to oppositional forces. The questions where and how next systemic eruption occurs is difficult one to be answered. However, the question why is obvious.

*The writer is co-coordinator of the Marx School, Colombo, Kandy and Negombo. E-mail: sumane_l@yahoo.com

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    The mismanagement of the country and economy and suppression of human rights by constitutional means is proceeding hand in hand. The executive supported by his parlimentary stooges prefers to carry out its affairs without any impediment or dissent. Laws can be changed by the law makers given the 2/3 majority and ratified by the all powerful executive.

    In such circumstances dissent from the general public and civil society is subdued by extra judicial means if required by deploying thugs and paramilitaries. Media too is heavily controlled to prevent such incidents being reported. Media is used to publicise the bogey man, the ngos and western governments, accused of conspiracy and plotting against this model of virtue.

    Such systems are not stable and can eventual lead to breaking point with the pent up dissent and frustration of the masses spilling over. The strength of the masses is in their numbers and when dissent and frustration reaches a critical mass it can boil over. This is the lesson of terrorism, insurgencies and the arab spring. Dictatorship is not a sustainable family business as exemplified by gaddafi and assad.

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    Dr. Liyanage,

    The parliament/ legislature, according to the present constitution has the authority to create the system to deliver justice and judge as per laws enacted by it. It has also the right to impeach judges of the Superior Courts, if there is convincing evidence to support such an act. It has also right to provide for due process to seek proof beyond reasonable doubt about the charges made. The Superior courts have the right to pass judgements on the constutionality of the laws proposed by the legislature. Of course, the president appoints the Superior Court judges and can dismiss them on the basis of a motion approved by the parliament. The president takes his oath from the CJ and administers the oath of office to the judges of the superior courts, including the CJ .

    The three pillars of governance are independent, share sovereignty and are interactive. This how it should be. The system of governance is thus built on a system of checks and balances. Unless we learn to work by the spirit of the constitution and not find ways to treat it as a donkey to be riden, no constitution will serve the interests of our nation.

    We are surely and steadily drifting towards a pre-colonial system of arbitrary rule by those who claim the mandate from the people, gives them a superior position in the triangle constitutionally established to share different aspects of power. What we are bound to institutionalise is a elected monarchy and enslaved legislature, riding roughshod over the rule of law. What is expedient would be the only guiding principle and this will be exercised without any restraint.

    Dr.Rajasingham Narendran

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    This piece is consistent with the steady decline in the quality and depth of this writer’s arguments notable in the previous writings at CT. Why do I say that? It’s questionable, why he has to bring in infamous 107 (3) clause into this piece.

    ah! it’s to highlight his wonderful insight “It appears that the lawyers have decided to end their campaign partly because of the realization that their reading of the text is not correct and proceeds to conclude “I submit that this so-called legality is the one that has to be questioned and challenged.”

    This is as muddle headed as it can be. As he himself mentions for something else, if his earlier pieces were tragic this one is a farce.

    why do I say it’s a tragi-comedy? If he’s schooling in Marx , either giving or taking lessons, these conflicts need not be analysed and discussed in the framework of so called legality in a “feudo-capitalist” tribal political contexts such as India and SL. It’s a manifestation of a heightened and more vulgar level of competition and allocation of resources available within our resource scarce (most of all, human resources to analyse our condition) societies such as our own. We have a saying if he reads sinhala, the pain of crocodile bite is one thing, but kohila (an edible mildly thorny plant) sting is unbearable…similarly, it’s unbearable while this crocodile regime is swallowing us, the common people, this kohila schooler in Marx offers unsolicited advice us on the legal foundation of it.

    And, it’s pathetic to note the Marx school affiliation at the bottom of each of these pieces, more than anything else. The question “why, isn’t it obvious?”

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      I should also add this. Dr. L goes on to mention this, as his escape clause:
      In such a situation all liberal slogans like the establishment of the rule of law is totally meaningless as many things have been done either by following existing law or introducing new laws or amending existing laws.

      This is not an analysis based on Marxian school of thought or any sensible modern societal norm. If he finds this as the root of the systemic crisis he gloats about, he must note this is not even an observation based on recent history. According to this, the workers in Chicago getting arrested and shot acceptable, as part of systemic crisis and as it was before the revolution. And if dr. L gets white vanned we should accept it as part of anti terrorism drive by the regime.

      These self defeatist attitudes, published under his name would make Marx squirm ( not just turn)in his grave, as even his liberal democratic contemporaries in England in his time could think beyond this.

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    I have a strong feeling that Mr.Mohan Pieris will not stay in his seat for long. Infact it could be a few weeks or months before he voluntarily will step down.

    The reasons are he is not recognised by The Bar Association,Appeals court or SC, or the public, business community, Chamber of commerce, Financial speculators, Import and exporters associatoion, FUTA and professional Association and finally the Opposition parties,Clergy and the Kandy three Buddhist preletes.

    Also Mr.Mohan Pieris is not recognised by CW, EU, England, USA and the UN.

    Therefore either he has to work like a mere puppet…..bowing down to every body….or leave his position before chasing out with disgrace.

    How come the Govt. sign foreign contracts without an Internationally recognised Chief Justice in place. Where is the Truthfullness and the Transparency in Obligation of the contracts without a trusted CJ in place. This will spread into other International Commercial and Financial transactions, Foreign Loans and Foreign Trade.

    Constitution, Law and Judiciary are the Back bone and Foundation of any Country, Society or Religion, and break down of it will lead to eventual downfall and destruction of it.

    Therefore unless GOSL think seriously to replace Mr.Mohan Pieris ASAP, Sri Lanka will face untold amount of, Business, Monitary and reputation losses both locally and in International Markets.

    MARA will try to keep his swolen head high while it is the Country and the people will suffer economically due to MARA’s stupid selfish Blunders.

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    “.. It appears that the lawyers have decided to end their campaign partly because of the realization that their reading of the text is not correct..”

    After the second paragraph I abandoned further reading his mischiefs. I think the writer has some problem with understanding the meaning of what has been written or expressed. SC ruling is clear and unambiguous and it has recommended a very reasonable course of actions to following in this ill-conducted impeachment procedure. The writer seems either to have been paid by the regime to write wrong interpretations or he is a hopeless case!

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    Yes the certral role in creating system-crisis ,due to less-develop,weak foundation economy, reamin capitalism in simple commdity producation, primitive of rural agriculture and techinolgical backwardness are main factors of ongoing cause of CRISIS.
    Indeed another change is possible,but is NOT SOCIALISM,BUT PROGRESS and HIGH GROWTH OF NATIONAL CAPITALISM.Its economy power and political influance to shape NEW LAWS that creat a fairer democraic-order.It may or may not be in the interest of the FEW to do so, but it is in across nation interest.As we see past and ongoing rule of Economy contribiute to vast gap between in rich and poor and growing INEQUALITY.Neo-Liberal economy path and model since 1977,we will see how dependence of Capitalsm as currently managed promotes neither People of the country EFFICENCY nor EQUITY.And system drage into our Democracy in peril.
    We are compelles take alternative path managing mobilization of people and resoures that are better for BOTH OUR POLITICAL-ECONOMY and DEMOCRACY,SOVERGERNITY,TERRORIAL INTEGRITY,and INDEPANDANCE.
    We must unfetter underdevelop-capitaislm in Sri Lanka.We could not put unnecessary saddle of past remaing colonial problmes to masses of our nation.
    At same time we have re-educated masses of ONGOING system of
    crisis,IMMERDITE CAUSE IS UNDER-DEVLOPMENT and lopsided growth of capitalism.
    We should rejected theory of NIHILISM of System of Crisis is lead into Socialist Stage of advacoated by anarchist and Trostkist political school of thoughts.
    At this stage we have to learned the RISKS of unfettered backwared capitalism economy and how to TEMPER NATIONL CAPITALIM ,so that it SERVES THE MAJORITY PEOPLE.Indeed we must preserve our democracy as well as prevent rampant backwarness and Inequlaity from growth of capitalism is only path of Sri lankan near future.

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    Mr Liyanage is trying to white-wash the Rajapaksa regime

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    The regime would try to pass and legalize all the illegal despot-enabling laws using M Pieris and then may be if the pressure and repercussions are too much would remove him and appoint a new one acceptable to others. But then the despot would have achieved all what he wanted including amending the constitution to suit their requirements.

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    This government is unable to comprehend the dimension of crisis. They create crisis because they think that the crisis is the only survival technique for them to be in power. So many paradoxical elements in the government or allied with. They don t focus for the future in terms of long term sustainability. Similar situation had been taken place during era of 1980 and we all must remember what was the gravity of the disaster took place in the same era ?

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    All the anti government forces in SriLanka along with the Tamil Diaspora and Navar Pillai from the UN have joined together to undermine and subvert the great leader Mahinda and his government. The Government should now now take steps to dismantle these evil forces. The traitorous Black Coats need to be sidelined and not given any government support. The ExCJ’s affairs and all 15 charges should be again investigated and should be dealt in a Court of Law. The anti Government stooge judges in the Supreme Court should be removed. No government can function with antigovernment traitors in high positions obstructing government development plans.

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