By Tisaranee Gunasekara –
In a classified cable written on 24th February 2010 (and revealed subsequently by Wikileaks), theUS Ambassador identified Supreme Court Justice Shirani Bandaranayake as a supposed ‘Rajapaksa-loyalist’.
The vicious and illegal impeachment of the same Shirani Bandaranayake, just two and half years later, demonstrates that the Rajapaksas do not tolerate loyalists; they demand acolytes. One is either a Rajapaksa-serf, with no mind or will of one’s own; or a Rajapaksa-enemy, who will be vilified and hounded out.
In the Rajapaksa universe, the middle-ground between subjugation and opposition does not exist. Those who think that they are allies and loyalists will find themselves standing on quicksand, sooner or later. At that point the only choice is between submission and resistance.
That was the story of Chief Justice Shirani Bandaranayake.
It all began with the Sacred Areas Act. That most invidious and iniquitous piece of legislation, and not the Divineguma Bill, was the casus belli of the impeachment.
The Sacred Areas Act – Town and Country Planning (Amendment) Bill is its full title – is a Rajapaksa classic. The Act consisted of 4 pages and 8 clauses. Its purpose was to give the Rajapaksas absolute control over every inch of private land. It empowered the Minister of Buddha Sasana and Religious Affairs to acquire any land or building by the simple expedient of affixing a label and issuing a gazette notification.
Compared to the Sacred Areas Act, the Divineguma Bill is a model of rectitude and accountability.
Clause 4 of the Act empowered the Minister to takeover ‘any area of land’ in ‘any municipal area, an urban development area or any trunk road development area’ defined as:
a) a ‘Protection area’ for the protection of natural amenities;
b) a ‘Conservation area’ for the conservation of the natural environment and the protection of places of natural beauty within the environment or
c) an ‘Architectural’ or ‘Historic Area’ for the conservation of architectural or historical value.
Clause 5 empowered the Minister to define any land as a ‘Sacred Area’ and take it over.
The Act would have made land-grabbing easy, fast and perfectly legal. The Rajapaksas, their kith and kin could have decided that a farm is in a ‘conservation area’, a factory in a ‘protection area’ or a house has an ‘architectural value’, and acquired any of them, legally. No Lankan would have been safe from the marauding powers of this most draconian law, from small-holding farmers and middle class home-owner to large-scale businessmen. It was Step II of the process Rajapaksa-takeover economic assets begun by the Expropriations Act of 2011.
Since they had the parliamentary numbers, the Rajapaksas would have regarded the Act as a fait accompli.
In November 2011, in response to a petition by the CPA, a Supreme Court bench headed by CJ Shirani Bandaranayake ruled against the Sacred Areas Act. The right to private property is not a fundamental right enshrined in the constitution. Therefore the Sacred Areas Act could have been deemed constitutional had it not been for the 13th Amendment. Under the 13th Amendment, land is a devolved subject. The 13th Amendment clearly stipulates that legislation on devolved subjects needs the concurrence of all provincial councils. The CJ could not have approved the Sacred Areas Act without committing a barefaced violation of the Constitution.
The Act was already on the parliamentary order paper when the Supreme Court ruled that it needs the approval of all provincial councils. Speaker Chamal Rajapaksa circulated the Act amongst provincial councils for their approval. The councils were told to give their consent by February 15th 2012. Since the UPFA controlled all existing PCs, no snags were expected.
But the Eastern PC refused to approve the Act; both the TMVP and the SLMC opposed it. And even more surprisingly, the North Central PC wanted more time to discuss the Act.
Faced with this unexpected resistance, the government withdrew the Act in April 2012.
Three people were instrumental in impeding the Sacred Areas Act – CJ Bandaranayake, the Chief Minister of the NCP Berty Premalal Dissanayake and the Chief Minister of the EP Sivanesathurai Chandrakanthan.
14 months later all three are out of jobs.
In September 2012, the government forced the untimely dissolution of three provincial councils. The Chief Minister of the Sabaragamuwa PC was reappointed but not the chief ministers of the rebellious NCPC and the EP. The TMVP and the SLMC were humiliated publicly.
The new NCPC and EPC acceded to the Divineguma Bill without a murmur.
Weeks after the regime was forced to withdraw the Sacred Areas Act, the NSB scandal erupted.
Shirani Bandaranayake became the CJ in May 2011. Pradeep Kariyawasam was appointed Chairman of Sri Lanka Insurance in June 2009 and Chairman of the NSB in May 2010. At the time his wife was a mere Supreme Court justice and thus totally dependent on Rajapaksa-goodwill. President Rajapaksa was being his mendacious-self when he told the wilfully-gullible Minister Witarana that he appointed Mr. Kariyawasam to the NSB because he feared to antagonise Dr. Bandaranayake.
Whether the Rajapaksas used a really existing case against Mr. Kariyawasam (as they did with Berty Premalal Dissanayake – the case of Lolugaswewa road) or whether they initiated/manufactured a case remains to be discovered. Either way, their intent was to punish the CJ’s husband for her refusal to violate the constitution.
And to send her a signal about the costs of dissent.
The CJ refused to become a serf and was hounded out of office.
Legalising Persecution and Repression
The presence of a totally servile Chief In-justice constitutes an ‘Open Sesame’ for the Rajapaksa-project of killing democracy via legal means. The law allowing the detention of suspects for 48 hours is already through; it will not be used against white-vanners. A new law imposing a two-year prison term and a million rupee-fine on anyone maintaining contacts with a banned terrorist organisation is to be introduced next month.
The bizarre development in the Kolonnawa quadruple murder case is an omen of how the law will work, post-impeachment. The driver of Bharatha Lakshman Premachandra, in his eye-witness evidence claimed that after Mr. Premachandra fell, “Duminda Silva fired at Mr. Premachandra and shouted out ‘wedithiyapan – wedithiyapan’ (shoot – shoot). About 10 others with him opened fire” (The Sunday Times – 23.10.2011). This week, this key witness against Duminda Silva recanted and said that he made his original statement under duress. The way is thus opened for the AG’s Department to exonerate that prominent Rajapaksa-kith, Duminda Silva. With the AG who withdrew child rape charges against Mr. Silva now heading the judiciary, the transformation of Duminda Silva from suspect to victim should happen fast.
The regime is ordering 3,300 tear-gas canisters, 2,500 riot helmets and other riot-control equipment at the cost of Rs.17.37 million. Given the Rajapaksa-plan to extract as much money from the citizenry via taxes – a garbage tax is in the offing – the extra equipment will be needed to supplement the persecutory-work of the new judiciary.
Serfs will be protected and promoted. Those who refuse will be persecuted and destroyed.
The middle-ground is a myth.
Welcome to Rajapaksa Sri Lanka.