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Independence of Judiciary: the battle must be taken to the UN and the Commonwealth

Hasitha Madawala,with Namal Rajapaksha (right) was gunned down after he had fallen from favour

Will the Constitutional Logjam be shattered with a Political Cudgel?  by Tisaranee Gunasekara
“The arbitrary and apparently irrational, antiutilitarian nature of life under such regimes….disarms all attempts by reasonable men to understand and explain the course of events”. – Tony Judt (Reappraisals)

Hasitha Madawala was shot dead on the night of January 5th, outside his house. His murderers rode a motorcycle, wore hoods, and got away. Mr. Madawala was not a member of the opposition or a Rajapaksa-opponent. Like Bharatha Lakshman Premachandra he was a loyal SLFPer; and a UPFA member of the Kelaniya Pradesheeya Sabha. His grisly fate is a reminder that under Rajapaksa rule, life can be short and death brutish to all but the Rajapaksas and their kin.

One year ago, on the night of January 7th 2012, another attempt was made to kill Mr. Madawala: “He claimed that Minister Mervyn Silva has ordered to kill him as well as the Chairman, the Deputy Chairman and another member of the Kelaniya PS. A murder contract has been given to notorious underworld operatives Roshantha of Hikkaduwa and Majeed of Maligawatte, Mr. Madawala alleged” (Sri Lanka Mirror – 8.1.2012).

Just before he was killed Mr. Madawala was arrested by the police, allegedly for behaving in an ‘unruly manner’ at a meeting presided over by DIG Anura Senanayake. The police even opposed bail for him. That episode indicates that Mr. Madawala had fallen from favour, that he had ceased being a member of ‘protected species’ and become vulnerable to political-abuse like the rest of Lankans. Incidentally, DIG Senanayake was to retire this month, but was granted a one year extension just this week.

Welcome to Rajapaksa Sri Lanka, a land like no other, a paradise in which life, liberty, security and the pursuit of wealth and happiness is guaranteed only for the Ruling Siblings and their kin. For everyone else, it is – or can be – a jungle; including for loyal servitors.

A Rajapaksha loyalist

The impeachment drama and the venom and the unreason with which the Rajapaksas are pursuing it become perfectly explicable within this context. Shirani Bandaranayake, as a Supreme Court justice and as Chief Justice, bent over backwards to satisfy Rajapaksa political demands. She headed the benches which rejected Gen. Fonseka’s petition for bail, approved the 18th Amendment in just 24 hours, gave a free passage to the Expropriations Bill and rejected petitions against Leadership Training and the blocking of anti-government websites. In a classified cable (revealed by Wikileaks), the US Ambassador claimed that Dr. Bandaranayake was a ‘Rajapaksa loyalist’.

But all that loyalty counted for nothing in the end. She made one ruling against Rajapaksa needs (because the 13th Amendment is crystal clear on the matter) and the Siblings launched volley after volley of Greek fire at her. The Supreme Court, had it approved the Town and Country Planning (Amendment) Bill or the Divineguma Bill, would have acted in barefaced violation of the constitution. But such logic matters nothing to the Rajapaksas who believe that their will, and not the constitution, is supreme.

This is a lesson which must be borne in mind by every top official, especially judges. The Rajapaksas do not want loyal supporters; they want mindless, supine serfs who do as they are told. And even a lifetime of loyalty counts for nothing against one act of ‘disloyalty’. The next CJ will have to agree to every Rajapaksa demand, including orders which are as illegal as hell. Only a man or a woman who is willing to abandon honour, dignity and conscience can become Sri Lanka’s next chief justice and avoid an impeachment a few months down the road.

The Fight for the Chief Justice is a fight for Justice

The impeachment of Chief Justice Shirani Bandaranayake was never meant to be a legal exercise. It was conceived of, planned and implemented as a political act. Its aim was never the uncovering of the truth or the dispensing of justice. Its aim was to punitively dislodge a retainer who dared to disobey the wishes of Sri Lanka’s ersatz royals. The Rajapaksas are utterly intolerant of disobedient tools. Shirani Bandaranayake had to be evicted in a way which would definitively discourage others from following in her footsteps. That was why the impeachment was conducted in the most unfair and unjust manner possible, from the very outset. It was never meant to convince; it was meant to threaten, frighten and warn.

When the impeachment travesty commenced, the million-dollar question was whether the CJ and the judiciary will have the capacity to withstand the Rajapaksa juggernaut. The Rajapaksas thought – and those of us who oppose the Rajapaksas feared – that the CJ could be hounded out of office and the judiciary could be rendered malleable via a combination of threats and favours.

That worse case scenario did not happen. The CJ is standing like rock-solid and the judiciary is putting up a valiant fight to defend the rule of law. Their spirited resistance has provided the democratic forces with the ideal platform to wage their own battle against the impeachment, for judicial independence and for basic rights.

The constitutional logjam will not be resolved on the basis of law; it will be shattered by the use of political power. The Siblings are not going to abide by the Supreme Court ruling, because doing so would create a precedent which will severely undermine their power project. The Speaker – who has become Sri Lanka’s pre-eminent constitutional expert, followed by the Deputy Speaker – will rule that the PSC is more supreme than the Supreme Court. The parliament will then ‘debate’ the impeachment and the charade will end with the UPFA voting against the CJ en bloc. The decision will then be sent to the President, who will immediately remove Shirani Bandaranayake and appoint a more proven stooge in her place. Once the new CJ is in, naked force can be used to deal with those judges, lawyers and other activists who refuse to accept the illegal and illegitimate status quo. The Siblings will equate any resistance with a legal coup and use the police, the army and the PTA to subjugate resisters.

The CJ and the judiciary have gone as far as they can. The task of impeding the regime from violating the Supreme Court ruling belongs to us, those elements of political and civil society who have not succumbed to the Rajapaksas. The opposition must boycott the impeachment debate, because participation will lend this illegal exercise some credibility. The rest of the battle will be more political than judicial; as such it will have to be waged in the media, in parliament, provincial councils and pradesheeya sabhas, within the UPFA and in the streets.

Plus the international arena; this battle must be taken to the UN and the Commonwealth. The only real snag the Rajapaksas would see in taking a political cudgel to the constitutional logjam is the impact such naked and illegal use of force would have on the Hambantota Commonwealth Summit. Making a roaring success of the Hambantota Summit is a presidential passion. An illegal and violent resolution to the Impeachment drama would not advance the prospects of the Hambantota Commonwealth Summit – or the chances of obtaining the next IMF loan.



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