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Independent Judiciary and Rule of Law;Demolished in Sri Lanka

EPW

Vol – XLVIII No. 09, March 02, 2013 | Rohini Hensman

Among the continuing acts that erode democratic institutions in Sri Lanka is the recent impeachment of the Chief Justice Shirani Bandaranayake. President Mahinda Rajapaksa and his brothers who head various arms of the Lankan run a repressive and autocratic regime that does not brook opposition. Despite this, the opposition parties Janatha Vimukthi Peramuna and the Tamil National Alliance along with civil society bodies like the Federation of University Teachers’ Associations and students have come together to fi ght back.

Rohini Hensman ([email protected]) is a Researcher and Activist, and Author of Workers, Unions and Global Capitalism: Lessons from India.

The impeachment of the Chief Justice of Sri Lanka Shirani Bandaranayake in January constitutes yet another deadly blow against the badly-eroded edifice of democracy in that country, striking at the one remaining institution that held out hope of acting as a bulwark against a regime that has demolished every challenge that is posed to its absolute power.

Bandaranayake became a Supreme Court judge in 1996 when Chandrika Kumaratunga was president, and was appointed as chief justice – the first woman to hold this post in Sri Lanka – by President Mahinda Rajapaksa in May 2011. As it now becomes clear, she was expected to provide a rubber stamp of legality and constitutionality to every decision made by the regime (in effect, the Rajapaksa brothers), and at first she lived up to that expectation. In mid-2011, the Ministry of Higher Education made it compulsory for all university entrants to undergo “leadership training” courses in military camps under defence secretary Gotabaya Rajapaksa (one of the president’s brothers) before they could begin their degree courses (Hensman 2011).

There was vociferous opposition from students, university lecturers, school teachers and many others. For example, the Friday Forum, a group of eminent democracy activists, pointed out that the ministry had no legal authority to formulate or implement programmes or courses for university students; military training was founded on regimentation whereas university education was aimed at encouraging independent thinking and respect for disagreement; and the module on history and national heritage focused exclusively on the majority Sinhala Buddhist community, to the detriment of national reconciliation. There were several fundamental rights petitions challenging the legality of this programme, but all were dismissed by a Supreme Court bench that included Chief Justice Bandaranayake.

Excessive Centralisation

She was presumably expected to do the same after the Divi Neguma (Life-Upliftment) Bill was published in the government gazette in July 2012. The bill established the department of Divi Neguma Development, to carry out all development activities under the Ministry of Economic Development headed by another one of the president’s brothers, Basil Rajapaksa. However, this involved the centre taking over development activities, which had been devolved to the provincial councils by the 13th amendment.

This constitutional amendment, enacted shortly after J R Jayawardene had signed the Indo-Lanka Accord in July 1987, has been seen as embodying the minimum devolution of power to the provinces that would satisfy Tamils in the northern and eastern provinces. Indeed, the constitutional reforms drafted by Neelan Tiruchelvam in 1995 during the brief period when democracy was restored under President Kumaratunga, and those proposed in January 2007 by a majority of the multi-ethnic panel of experts to the All-Party Representative Committee, both advocated more devolution of power to the provinces, not less.

It is therefore not surprising that the Divi Neguma Bill was opposed by the Tamil National Alliance (TNA). As TNA leader R Sampanthan said,

Amongst the powers that would be vested by this piece of legislation in the center are a wide range of powers that have been devolved to the provinces related to development activities, which the provinces could easily handle and much better than being remote controlled by the central government. If these powers are handled by the provinces, greater importance would be given to the sensitivities of the people and the democratic wishes could be much better implemented and fulfilled… The notion of power being exercised by the people is completely lost when power is excessively centralised by taking powers from the provinces (Abeywickrema 2012).

Although the 13th amendment was enacted mainly in the interests of the provinces with a Tamil-speaking majority, it also allows for a modicum of local democracy even in the majority-Sinhala-speaking provinces as against a total concentration of power – and resources – in a monolithic centre. All this would be lost when the bill was passed.

Equally disturbing were clauses preventing officials from divulging information about the activities carried out under the bill.

According to clauses 39 and 40 in the Bill, employees are required to sign declarations of responsibility not to disclose information, unless required by a court of law. The Bill says any person who violates the provisions of the proposed Act is liable to be imprisoned or fined. Public funds amounting to Rs 80 billion will come under the purview of the Proposed Divineguma Department. However, according to political sources the secrecy clause would prevent any whistleblower from coming forward with regard to corruption that could likely take place when such a massive amount of money was involved. Western Provincial Council Janatha Vimukthi Peramuna (JVP) member Nalinda Jayatissa told Daily Mirror that these were clauses normally found in laws dealing with national security and generally connected to the intelligence services of a country (Bandara 2012).

When the government presented the bill before Parliament in August 2012, its constitutionality was challenged by four petitioners in three petitions in the Supreme Court. This time, a bench including the chief justice ruled that a matter set out in the provincial council list could not be taken over by the centre without the approval of all the provincial councils. Eight of the nine provincial councils were controlled by the ruling United People’s Freedom Alliance (UPFA) coalition, and gave their consent, but the Northern Provincial Council had not been established as an elected body. In lieu of the council, G A Chandrasiri – the former Jaffna Army commander who had been appointed as governor by the president – gave his assent to the bill, and the bill was returned to Parliament. But a new batch of petitions challenging the bill were presented in the Supreme Court, including one from the TNA challenging the right of the governor of the northern province to give his assent to the bill, and arguing that only the elected representatives of the people of the province had the right to do so.

An ‘Inquisition’

On 31 October 2012, the determination of a three-judge bench of the Supreme Court, including Shirani Bandaranayake, presented its judgment to Parliament: one clause of the bill was unconstitutional and needed to be passed by a referendum; 12 other clauses were inconsistent with the Constitution and needed to be passed by a two-thirds majority in Parliament; and the governor of the Northern Province did not have the power to endorse the bill.

The very next day (1 November 2012), 117 MPs of the ruling UPFA presented an impeachment motion against the chief justice to the speaker, Chamal Rajapaksa (yet another brother of the president). An 11-member Parliamentary Select Committee (PSC) with seven government MPs and four opposition MPs was appointed to deliberate the impeachment charges, but the opposition MPs soon walked out, saying that it was not an inquiry but an “inquisition”. On 8 December 2012, what was left of the PSC reported to Parliament that Bandaranayake was guilty of three of the charges of corruption and improper conduct, and could therefore be impeached and removed from office.

However, on 3 January 2013, the Supreme Court ruled that the PSC did not have the power to investigate allegations against the chief justice, and therefore the impeachment was unconstitutional. Bandaranayake herself appealed against the PSC ruling in the Court of Appeal, claiming that she had not been given a fair hearing, and on 7 January the court ruled that the findings of the PSC were legally void. M A Sumanthiran, appearing for the TNA MP R Sampanthan, and J C Weliamuna, appearing for the JVP MP Vijitha Herath, endorsed the court’s opinion that the PSC’s findings were void, emphasising that impeaching a justice on false charges was an interference with the independence of the judiciary (Weeraratne 2013).

Despite all this, on 8 January the amended Divi Neguma Bill was passed by Parliament with a two-thirds majority, following which Basil Rajapaksa declared that MPs who had voted against the motion to hand over the entire development budget to him were “traitors”. It is a telling indictment of the Rajapaksa brothers that they use the very same epithet that was used by Vellupillai Prabhakaran, leader of the Liberation Tigers of Tamil Eelam (LTTE), to demonise anyone who opposes them.

The impeachment motion was debated by Parliament on 10 and 11 January, and passed with 155 MPs voting in favour, 49 against, and 11 abstaining. Bandaranayake was removed from office on 13 January after President Rajapaksa signed the papers sacking her. Huge contingents of security personnel and thugs were employed to crush civil society protests against her removal, and to prevent her from speaking to the press, despite which she managed to release a statement that she was innocent, and was still the legitimate Chief Justice of Sri Lanka.

Loyalty Rewarded

Instead of appointing another Supreme Court judge to the post, that evening the Rajapaksas proposed the name of former Attorney General Mohan Peiris, and on the 15th of the month he was sworn in. His record on corruption and human rights issues might have been less than perfect, but his credentials for loyalty to the regime were impeccable.

Peiris served on the boards of Lanka Logistics [a military hardware procurement agency] and Rakna Arakshaka Lanka Limited [a private security firm staffed by ex-servicemen], both companies incorporated under the auspices of the Defence Ministry with the Defence Secretary at their helm. In an unprecedented move, the Attorney General’s Department was brought under the purview of the President during Peiris’ tenure as AG. Until his appointment as Chief Justice on Tuesday, Peiris served as the Cabinet Legal Advisor and regularly travelled to Geneva to defend the country’s deteriorating human rights record. In November 2011, he famously told the UN Committee Against Torture in Geneva that his Government had information that journalist Prageeth Eknaligoda who has been missing for three years this January, was alive and secretly living outside Sri Lanka…Seven months later, Peiris answered summons before the Homagama Magistrate, where a habeas corpus petition filed by Eknaligoda’s family in the Court of Appeal had been redirected for inquiry. There in open court, with Eknaligoda’s distraught wife in the room, Peiris rejected the statement he made in Geneva and claimed he could not remember the officer who informed him that the missing journalist was overseas. Adding insult to injury, the former state prosecutor told the court, that the government knew nothing about Prageeth’s whereabouts and ‘only God knows’ what had become of him (Bastians 2013).

In her statement after she had been removed, Bandaranayake said, “It is not only the office of Chief Justice, but also the very independence of the judiciary, that has been usurped. The very tenor of rule of law, natural justice and judicial abeyance has not only been ousted, but brutally mutilated.” The entire opposition and legal community of Sri Lanka concurred, with the United National Party (UNP) MP Mangala Samaraweera saying that Sri Lanka had officially become a dictatorship.

With the dust uneasily settling over a legal community thuggishly coerced into fuming silence, an unjustly ousted Chief Justice Shirani Bandaranayake may yet be proud…Despite overwhelming odds, she succeeded in uniting a deeply divided Bar, rallying judges to her side, provoking strongly worded editorials and unexpected protests from the normally quiescent business, investment and employment sectors, quite apart from religious leaders and concerned citizens… This dissent is not momentary. Its repercussions will continue to be felt (Pinto-Jayawardena 2013).

There was international condemnation too. The UN High Commissioner for Human Rights Navanethem Pillay called the impeachment “a gross interference in the independence of the judiciary and a calamitous setback for the rule of law in Sri Lanka” (Penn 2013). Sam Zarifi of the International Commission of Jurists said that

Sri Lanka’s Parliament and executive have effectively decapitated the country’s judiciary in pursuit of short-term political gain. As an immediate matter, this has precipitated a legal and constitutional crisis of unprecedented dimensions; but just as worrying are the consequences of this action, which severely erodes accountability and the rule of law in a country already suffering from decades of impunity (International Commission of Jurists 2013).

This is not the first time the judiciary has been under attack in Sri Lanka. In the early 1980s, against the backdrop of a new Constitution putting almost absolute power in the hands of an executive president, gross violations of human rights (especially of Tamils), and an assault on free and fair elections, the UNP regime of J R Jayawardene orchestrated lumpen displays of violence against members of the judiciary who refused to toe the regime’s line. Although Jayawardene did not go as far as Rajapaksa – for example, he did not remove the two-term limit on the presidency as Rajapaksa did in the 18th amendment (see Hensman 2010), nor did he decapitate the judiciary by impeaching the chief justice on trumped-up charges – it is worth learning some lessons from the responses to his assault on democracy.

With electoral and legal challenges to the regime looking more and more impossible and democratic space shrinking, Tamil militant groups, ultimately dominated by the LTTE, launched an insurgency in the north and east, and in 1987 the JVP launched a Sinhalese insurgency in the south. Both were as violent and authoritarian as the regime they opposed; moreover, the extreme Tamil nationalism of the former and extreme Sinhala nationalism of the latter pitted them against each other as well as against any democratic elements among the communities they claimed to represent.

Thus among the Tamils murdered by the former were feminist doctor and human rights activist Rajani Thiranagama and lawyer and politician Neelan Tiruchelvam; among the Sinhalese murdered by the latter were left-wing student leader Daya Pathirana and popular politician and presidential candidate Vijaya Kumaratunga. Both insurgencies were drowned in blood, with massive civilian casualties; the combined death toll was probably in excess of 2,00,000. The only successful challenge to the regime, after President Premadasa had taken over from Jayawardene, was from civil society democracy activists.

Solidarity against Fascism

This time, it is imperative for Sri Lankans to avoid the bloodshed and reinforcement of authoritarianism resulting from such insurgencies. Thus far, the JVP and the TNA (which formerly acted as a proxy for the LTTE) have played a commendable role in upholding democracy and the rule of law in post-war Sri Lanka, acting in a far more principled manner than the divided and discredited UNP. Equally important have been civil society initiatives challenging the government, in which the independent left has played a part. A particularly inspiring example of this is the activities of the Federation of University Teachers’ Associations (FUTA), an umbrella body of 43 university teachers’ trade unions.

Frustration about long-pending salary demands that had been ignored by the government as well as violations of academic freedom (as in the case of compulsory training by the military for university entrants) erupted in a full-blown FUTA strike in July 2012. As the strike continued for 100 days, undeterred by loss of pay and death threats to FUTA president Nirmal Dewasiri and other leaders, its demands encompassed opposition to the neo-liberal assault on state education as a whole and political interference in education by the regime. Students, other trade unions and members of the public were drawn in. As a FUTA member put it, “At the crux of it all are concerns of democracy, transparency, and the general disregard of the public good” (Kumar 2012).

Tamil academics were an integral part of the FUTA struggle. Subsequently, when the army burst into the halls of residence in Jaffna University after Tamil students lighted a lamp on 27 November, separating Sinhalese and Tamil students and subjecting the latter to abuse, and the police attacked a peaceful demonstration demanding democratic rights the next day, later assaulting and arresting several students, FUTA stood in full solidarity behind the students. Similarly, when the president of the University of Jaffna Teachers’ Association was summoned to appear before the Terrorist Investigation Division under the Ministry of Defence because of his role in attempting to protect his students, FUTA protested against this act of intimidation.

Only such joint struggles for democracy and social justice, solidarity across ethnic lines with anyone whose human rights are violated, and concerted efforts to alert the broader public to the dangers of the fascistic Sinhala nationalism spewed by the state-controlled media day after day as well as the Tamil nationalism peddled by the Eelamist diaspora, can succeed in liberating Sri Lanka from the vice-like grip of the Rajapaksa family. Given the circumstances, anyone engaged in such activities needs as much international support as possible.

References

Abeywickrema, Mandana Ismail (2012): “Divi Neguma Bill Deprives Provinces of the Powers Given to Them by the Constitution”, 20 October,http://dbsjeyaraj.com/dbsj/archives/11782

Bandara, Kelum (2012): “Divi Neguma Bill Gags Officials”, Daily Mirror, 26 September, http://www.dailymirror.lk/news/22213-divi-neguma- bill-gags-officials-.html

Bastians, Dharisha (2013): “Midweek Politics: The End Game”, Colombo Telegraph, 16 January, http://www.colombotelegraph.com/index.php/midweek-politics-the-end-game/

Hensman, Rohini (2010): “Sri Lanka Becomes a Dictatorship”, Economic & Political Weekly, Vol XLV, No 41, 9 October, pp 41-46.

– (2011): “Sri Lankan Universities Are No Place for the Army”, The Guardian, 14 June, http://www.guardian.co.uk/commentisfree/2011/jun/14/sri-lanka-army-unive…

International Commission of Jurists (2013): “ICJ Condemns Impeachment of Sri Lanka’s Chief Justice”, 11 January, http://www.icj.org/icj-condemns-impeachment-of-sri-lankas-chief-justice/

Kumar, Shamala (2012): “From Chalk-Boards to Picket Lines: The Journey of a Trade Union”, The Island, 2 September, http://www.island.lk/index.php?page_cat=article-details& page=article-details&code_title= 60633

Penn, Dianne (2013): “Impeachment of Chief Justice a ‘Calamitous Setback for the Rule of Law’ in Sri Lanka: UN Human Rights Chief”, 18 January,http://www.unmultimedia.org/radio/english/2013/01/impeachment-of-chief-j…

Pinto-Jayawardena, Kishali (2013): “The Disappearance of a System of Law”, Colombo Telegraph, 20 January, http://www.colombotelegraph.com/index.php/the-disappearance-of-a-system-…

Weeraratne, Chitra (2013): “Appeal Court Quashes PSC Findings on CJ”, Sunday Island, 7 January, http://www.island.lk/index.php?page_cat= article-details&page=article-details&code_title=69911

 

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