Waiting for Judgement Day

Tisaranee Gunasekara-December 1, 2018, 12:00 pm 

"The history of madness is the history of power."
Roy Porter (A social history of madness: The world through the eyes of the insane)

The current crisis is a contestation about the nature of Sri Lanka and her future.

Will the country continue along the path of democracy or will she re-embrace some form of autocracy? Will rule of law prevail or will it be replaced by the law of the rulers? Will justice remain a possibility or will impunity become sovereign again? Is Sri Lanka a country of free men and women or a land yearning for the heavy hand of a political overlord?

At a subjective level, Maithripala Sirisena’s anti-constitutional coup was motivated purely by personal-political considerations. He wanted and wants a second presidential term. Objectively, though, his actions have a systemic relevance. They are an attempt to reclaim for the presidency the powers it lost with the 19th Amendment. If that attempt succeeds, it will render the presidency omnipotent again, and reduce the legislature and the judiciary into mere appendages of a sovereign president.

The saga of Admiral Ravindra Wijegunaratne is a microcosm of this battle by the executive to regain control over the other branches of the government. The way that saga ended, with a handcuffed and deflated admiral being escorted to remand prison, indicates that there is hope of rolling the presidency’s power-grab, and restoring a degree of balance between the executive, the legislature and the judiciary restored.

The President was protecting the Admiral. That was common knowledge. So the admiral was able to ignore three judicial warrants, make a mockery of the courts, and remain a free man.

The first summons was issued in September 2018, when the UNP was a part of the governing coalition, its leader the PM and its members holding the ministries of Justice and Law and Order. Yet the UNP failed to stand up for justice, law or order. With its silence and inaction, it became complicit in Maithripala Sirisena’s efforts to win impunity for his protégé by rendering the judiciary impotent. The courts had to battle alone, for justice, together with the CID.

Two-weeks into the anti-constitutional coup, Admiral Wijegunaratne achieved what seemed like a conclusive triumph. He reportedly got Inspector Nishantha Silva, the officer in charge of the investigation into the abduction and the alleged murder of 11 young men, transferred out of the CID with immediate effect.

Then the unexpected happened.

Anger raged, against the dying of the light of justice. Voices were raised, from media and society (notably Lasantha Wickremetunga’s daughter, Ahimsa). IP Silva made use of a key democratising structural change effected by the 19th Amendment – independent commissions. He complained to the Police Commission. The Police Commission wrote to the IGP, objecting to the transfer. In a stunning move, the IGP revoked the transfer.

Power causes the ego to inflate and the brain to deflate. Having failed to get rid of the investigating officer, the Admiral seemingly turned his attention to witnesses. This week, he reportedly threatened a key witness, Lt. Commander Laksiri Galgamage of the Navy, inside Naval Headquarters. Commander Galgamage promptly lodged a complaint with the police. The police swung into action, but were not allowed into the naval headquarters for 24 hours.

On November 28, Admiral Wijegunaratne swaggered into the Colombo Magistrate Court and surrendered his uniformed and decorated self. The naval regalia must have been intended as a reminder to all of the august position he occupies and the unlimited power he wields (the AG’s Department was absent). The magistrate was unimpressed. He denied bail to the Admiral, on the obvious grounds that if free, he will try to impede the investigation. The fact that some members of the Admiral’s entourage assaulted a photographer just outside court premises might have hardened the magistrate’s resolve.

The day ended with impunity being dealt a severe blow.

It was perhaps no accident that soon afterwards, reports started emerging that the president might withdraw the gazette dissolving the parliament, before the Supreme Court begins deliberating the matter. It was perhaps no accident that another serial political pole-vaulter, Wijedasa Rajapaksa, appeared in parliament and made a speech, exhorting the legislature to resolve the current crisis, instead of allowing the judiciary to do so.

If the courts remain impartial and people peaceful, there is reason to hope.

Maithripala vs. Sirisena;

Mahinda vs. Rajapaksa

What can a kingdom do, when the king loses touch with reality?

Maithripala Sirisena was able to create chaos out of order and plunge an entire country into a seemingly bottomless crisis because of the powers and the mentality inherent in the executive presidency.

Abuse of power, absolute impunity, and overweening arrogance are integral to any presidential system, because its model is absolute monarchy. Kings don’t like to feel hemmed in. They appear sane, as long as they are allowed to have their unimpeded way. That changes at the first obstacle.

When an executive presidency is installed in a country with an ontological memory of absolute monarchy, such as Sri Lanka, the danger of a president seeing himself/herself as an omnipotent and infallible sovereign is infinitely greater.

Emperor Caligula is said to have denounced the unpopular deeds of his predecessors in his first major speech to the Senate. The senators ruled that there should be an annual recitation of his speech. As Mary Beard points out, "It looked like a tribute to the new ruler’s oratory; in reality it was an attempt to hold him to his pledge of good behaviour."i The senatorial ploy failed abysmally, as history records.

When kings go back on their positive promises, the reason is not a genuine loss of memory, but the belief in monarchical infallibility. ‘King can do no wrong’ is part of the credo of monarchical absolutism. Whatever the king says and does is right, even if it is the antithesis of what he said and did yesterday. Similar tragic-comedies can ensue, when an executive president begins to see himself/herself as monarch.

Maithripala Sirisena says he didn’t violate the 19th Amendment when he dissolved the parliament; he insists that a clause in the 19th Amendment enables him to dissolve parliament, whenever. There’s plenty of recorded evidence that he knew differently and said so.

For instance, when The Hindu asked him what he considered to be his biggest success, his replay was, "Firstly I succeeded in getting the 19th Amendment to the Constitution passed in parliament... Earlier the president could dissolve the parliament after completion of one year of parliament, but now under the provision of the 19th Amendment it has been extended to four and a half years."ii

Mahinda Rajapaksa too knew about the limitations imposed on the presidency by the 19th Amendment. He knew that post-19th Amendment, the president couldn’t dissolve the parliament at will. This was what he said, in the immediate aftermath of the SLPP’s victory at the February 2018 LG poll. "We ask for a general election... There is a small problem in the Constitution. The President can’t do it. Because there is a clause preventing him from dissolving until after four and a half years. If the government gets together it can be changed."iii (Translation mine - TG).

Mr. Sirisena is on record saying that whatever the Supreme Court rules on the 7th, he will abide by that decision. Perhaps Mr. Sirisena has realised the loneliness of his position, his ally-less state. His failure to ensure protection for the Admiral will make other state employees think twice about obeying blatantly unconstitutional orders. His alliance with Mahinda Rajapaksa is tenuous at best. Within the SLFP, a rebellion is brewing against him. He is a man whose options are dwindling by the hour. Perhaps he has regained enough touch with reality to realise that.

Mr. Rajapaksa on the other hand is yet to make a commitment to abide by the Supreme Court’s ruling. Not surprising, given his past. This, after all, was the president who got rid of a chief justice via a fraudulent impeachment, in naked violation of two court rulings. He wants an immediate election, not to strengthen democracy but to end it. He believes that an immediate election (and one held under his control) will enable him to win a two-thirds majority. Then he can amend the constitution, contest the presidency in 2020, and be king again.

What will he do, if those dreams are threatened by Maithripala Sirisena?

Speaker Karu, Speaker Chamal and Memories of Impeachment

In a political theatre peopled by charlatans, Speaker Karu Jayasuriya seems an exception, a man of moderation and principles. However, his actions drew a rebuke from a former speaker, Chamal Rajapaksa. According to the BBC, Mr. Rajapaksa stated that had he been the Speaker, he would not have summoned the parliament until the Supreme Court made a final ruling on December 7.

This is the same Chamal Rajapaksa who, as Speaker, led the illegal impeachment against Chief Justice Shirani Bandaranayake, in violation of two court rulings.

As we live with the possibility of a return of Rajapaksa rule, it is perhaps instructive to remember how they ruled. And there is no better primer on Rajapaksa rule than the impeachment of CJ Bandaranayake.

Chief Justice Shirani Bandaranayake incurred the wrath of the Rajapaksas when she refused to give a free pass to the Town and Country Planning (Amendment) Act (known as the Sacred Areas Act) and the Divineguma Bill.

The Sacred Areas Act would have granted Gotabhaya Rajapaksa’s UDA absolute power to acquire any private land by proclaiming it to be of sacred, historical or environmental value (the affected parties would have no right to legal redress). The Supreme Court decreed that, as per the 13th Amendment, the Act needed the approval of all provincial councils. Two provincial councils (North-Central and Eastern) objected, forcing the government to abandon the Act (within months, both chief ministers, one of whom was Berty Premalal Dissanayake, the father of Duminda Dissanayake, were out of jobs).

The government abandoned the Sacred Areas Act in April 2012. In July 2012, the Divineguma Bill, aimed at expanding the economic empire of Basil Rajapaksa, was gazetted. Once again the Supreme Court ruled that the Bill, unless amended, would need to be approved in a referendum. The decision was handed over to Speaker Chamal Rajapaksa on October 31, 2012. On November 1, 2012, an impeachment motion against the CJ, signed by 117 UPFA parliamentarians, was handed over to Speaker Rajapaksa.

On November 15, Speaker Rajapaksa appointed a Parliamentary Select Committee to hear the charges against the CJ. The PSC commenced impeachment hearings on November 23, 2012. The CJ asked for five weeks to prepare her defence. Her request was rejected. The opposition wanted a pause in the impeachment proceedings during parliamentary vacation. That request too was turned down. The PSC, sans its four opposition members, concluded its hearings on December 7, 2012. Less than 24 hours later, on December 8, the truncated PSC handed over its impeachment report to the Speaker.

The PSC completed the impeachment hearing in 14 days and prepared its report in less than 24 hours!

On January 1, 2013, a Supreme Court bench comprising of Justices N. G. Amaratunga, Priyasath Dep and K. Sripavan ruled that the Parliamentary Select Committee was not constituted properly and thus had no powers to conduct an investigation against the CJ. On January 7, 2013, the Court of Appeal quashed the PSC’s findings (two of the judges received death threats subsequently.) Speaker Chamal Rajapaksa ignored both rulings and went ahead with the impeachment debate. The CJ was impeached, removed, and replaced with a man known as a legal underling of the ruling family.

That was how the Rajapaksas obeyed court rulings.

Leaders who have neither shame nor justice can plummet to the lowest of depths, because for them everything is permitted. Today those leaders are Maithripala Sirisena and Mahinda Rajapaksa. Post-2020, it can be the next president, whoever he is. The battle is not about individuals. The battle is about soul of Sri Lanka. Do we want a country where the president is sovereign, monarch in all but name? Or do we want a country where no one holds absolute power; and neither the executive nor the legislature can debase the judiciary by turning it from the last refuge of the powerless to the first tool of the powerful?

Do we want power run mad, or do we want the sanity that can come only with limits?

i Confronting the Classics – Traditions, Adventures and Innovations.

ii https://www.thehindu.com/opinion/interview/Solving-problems-of-Tamils-is-my-obligation-Sirisena/article16442765.ece

iii https://m.facebook.com/story.php?story_fbid=970334823124266&id=103678496456574&refsrc=https%3A%2F%2Fm.facebook.com%2FBBCnewsSinhala%2Fvideos%2F970334823124266%2F&_rdr