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Nov-08-2012 10:50printcomments

When all the 'FUN' is About Fooling Ourselves

Here in Sri Lanka, there is also polarisation of politics, a reaction to ethnic divisions and frictions within in a post war regime.

Originally from The Island newspaper
Originally from The Island newspaper

(COLOMBO, Sri Lanka) - “Never underestimate the power of stupid people in large groups.” said George Carlin, the American Comedian, Social Critic and Satirist. “Come on, gentleman; let us drink to our stupidity.” said Santosh Kalwar, the Nepali poet and writer.

Some 'dud' somewhere had calculated that the Rajapaksa family clan have worked terribly hard from day one in power, to earn a paltry income of 120 to 180 million US dollars every year. That's only through Chinese projects and programmes. The same person has also done some arithmetic to say the real “intake” for the family clan with all other income sources would touch anything between 400 to 500 million US dollars annually. And, Rajeev Sharma in Delhi has put them all in his paper (No. 5261) that appears in South Asia Analysis Group, detailing how whole “fronts” put up by the Rajapaksas function, to leave no foot prints behind that could lead to the actual beneficiaries. But they still lead to most other conflicts in this post war Sri Lanka.

News, or rather interesting tales are not leaked to the media by politicians, ministers and Heads of States alone. They are at times leaked by others who have no stake in the issue, but, is privy to the issue. That tells us, this conflict between the Executive and the Judiciary is not the end of the story. It is only the beginning of a story that came into public domain, with Manjula Thilakaratne, Secretary to the Judicial Service Commission (JSC), issuing a public statement as instructed by the JSC on 18 September, 2012. The accepted common interpretation to this conflict now out in the open after the physical assault on Thilakaratne and the subsequent “Motion” handed over to the Speaker of parliament on 01st November at an auspicious time, impeaching Chief Justice Shiranee Bandaranayake is that, the Rakapaksa regime fell foul over the determination of the Supreme Court on the “Divineguma Bill”, the Rajapaksa sibling wants implemented.

That single glossing over, does not give the actual reason(s) to the conflict between the Executive and the CJ Bandaranayake. There was nothing unusual in that determination the Speaker announced in parliament on 17 September. The Supreme Court determined the ‘Divineguma Bill’ should be referred to and consented by all Provincial Councils before it is taken up in Parliament. Yet for the first time, he notes that the Speaker had not been duly addressed too on the petition. On the following day, JSC Secretary Thilakaratne issued the historic statement to the media, to the effect that the JSC is being pressured by powerful political sources, but the JSC would not allow the independence of the judiciary and that of the JSC to be compromised in any way. Thereafter the ball started bouncing back and forth, with Thilakaratne ending up at the accident ward of the Colombo General Hospital and CJ Bandaranayake having now got to face the impeachment in parliament. The two incidents, the Speaker's announcement in parliament on the SC determination on 17 September and JSC Secretary's statement on behalf of the JSC on 18 September together, therefore draws a picture, that by itself is not the whole picture. That leaves a big question yet to be answered and is not answered by either party.

This determination on the “Divi Neguma” Bill by the Supreme Court is nothing new for this regime to be afraid of and feel let down or slighted with. In 2010 August presided over by SC judge Bandaranayake herself, the determination on the 18 Amendment to the Constitution was that it should have a two thirds majority in parliament to become valid as an Amendment. She also knew there was no urgency for that Bill, with President Rajapaksa set to swear in for his second term, only in November 2010. The bench left the need of a referendum out, despite the 18 Amendment was repealing the 17 Amendment and providing provision for any President to go beyond two terms. The UPFA had collected that number in parliament and they had no issue. Then in April 2012, the SC with CJ Bandaranayake determined the Amendment to the Town & Country Planning Ordinance should gain the consent of the PCs. That was possible. The legality of the Governor of the Northern Province in consenting was never challenged by any one. It was then the Eastern PC Chief Minister who raised reservations and that wasn't any difficult for this regime to settle, if they wanted to. That Amendment was later withdrawn in May this year, perhaps because the Rajapaksa family decided, unrestricted powers on land should not go to a ministry they are not interested in. None of those determinations turned the relationship between the Executive President and CJ Bandaranayake, even slightly sour by May this year.

Why should this determination, no different to that of April 2012, turn two co-existing family entities, fight each other in public, in less than 06 months ? They were best of friends. Judge Bandaranayake was made the Chief Justice in May 2011, by President Rajapaksa after she presided over the determination on the 18th Amendment in August 2010. She had her husband, an inefficient manager as discussed in the corporate sector with no expertise on insurance matters, appointed Chairman to the SL Insurance Corporation, to be evicted from the post after he messed himself up as Chairman. But was again appointed by President Rajapaksa as Chairman NSB. She stood all smiles, for a family photograph with the Rajapaksa family on 15 December, 2011 when Namal Rajapaksa was sworn in as a lawyer, throwing away all traditions, moral standards and ethics of being an independent CJ. Meanwhile the judiciary had been delivering judgements in favour of the government on appeals made to Courts by the Police, against legitimate Trade Union actions. The government was thus using the judiciary as a repressive tool against Trade Unions, apart from using armed police. This CJ had been a political appointee to the official bench and continued as a loyalist of this regime, without any doubts.

What then went wrong with the Executive and the Chief Justice of Sri Lanka ? That would not be divulged by either party. Such is the agreement between two parties falling out in any such break up, in most parts of the world. It takes another generation to know the truth. But what is most important here in Sri Lanka is, they have finally broken up ! There is now an interval, an interregnum, before they could compromise again even while the Parliamentary Select Committee (PSC) on the Impeachment, or before the whole system collapses under the enormous power of the Executive. Can that short interval therefore be used for the benefit of the people ? That seems the issue right now.

Here in Sri Lanka, there is also polarisation of politics, a reaction to ethnic divisions and frictions within in a post war regime. That for a government trying to bring about reconciliation would be a sticky issue to resolve. But for the Rajapaksa regime, it serves an extra dish of curd and treacle to decide politics with relish. They thus have brought forth the issue of the 13 Amendment too, asking for its repeal and abolishing of the Provincial Councils. In such context, the Sri Lankan polity, especially the Sinhala South is called upon to take a stand on power sharing as well, if they wish to save the judiciary from going under the Executive power.

The logic for such is simple and straight forward. This conflict that is now termed as between the “Executive and the Judiciary” is, only an accident that had erupted on a purely personal issue, the two have not been able to sort out behind the backs of the people. Its that inability of theirs which brought the conflict to the public domain. Thus this is only a short interval the democratic forces could use to push the issue of “judicial independence” into the political platform. Often, such personality clashes don't raise between them, the need for Constitutional Reforms necessary to ensure and guarantee “judicial independence”. It thus becomes imperative for those who stand for democracy and “judicial independence” to demand a system that guarantees “judicial independence” in the future.

Most unfortunately, the Parliament Select Committee (PSC) that would be established, in all probability dominated by the majority in government, will only go into the allegations in the Motion submitted for impeachment. That would not raise the issue of “judicial independence”. Therefore, it takes citizens' groups, democratic organisations, trade unions and other political parties to tie up this conflict with that of “judicial independence”. It is to confuse such public intervention in the Sinhala South, the repeal of the 13 Amendment with the abolishing of the PCs have been laid on the table by the Rajapaksa regime, ignoring the fact that their conduct is being taken up at the Universal Periodic Review (UPR). The international community and New Delhi have always been compromising with this regime, both during the war and during the post war period. That factor therefore is not taken seriously by this regime.

What is serious for them is the continued frenzy they could maintain here in the Sinhala South on a “unitary” State for “Sinhala” dominance. This political reality is always being avoided by even democratic elements asking for democracy. It is this perceived truth the Rajapaksa regime and its Sinhala allies are working on, in tying up the impeachment against the CJ with that of the 13 Amendment and the PCs.

This therefore is an acid test for all in the Sinhala South. Will they fight for “judicial independence” on a secular, pluralistic platform demanding Constitutional Reforms ? If they restrict this to a mere conflict between that of the Executive and the impeachment against the CJ, then the battle is lost for all. We could have fun talking about all the misdeeds, corruption and arrogance of this regime and fool ourselves too, that we did fight for “judicial independence”. After all, the whole issue the regime is fighting for, is their right to amass wealth even beyond what Rajeev Sharma investigates, at the expense of people's democracy, Sinhala, Tamil or Muslim. Its therefore democracy with judicial independence for all that matters and not just for the Sinhala society.

(Written on invitation to the Sri Lankan Tamil periodical “Samakaalam”)

Kusal Perera

Kusal Perera

We creep where most don't

I always take life with a grain of salt, plus a slice of lemon and a shot of old arrack.....!

Special thanks to Kusal Perera for sharing this article with, and also Groundviews



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