| by Tisaranee Gunasekara
“…the real tyrant is a man who
sacrifices a whole nation to his ideal or his ambition’.
Camus (Caligula)
( September 30, 2012, Colombo,
Sri Lanka Guardian) Separation of powers and power-devolution are alien to
Rajapaksa thinking and inimical to the Dynastic Project.
Gathering all reins of power into
Familial hands is a central tenet in Rajapaksa thought. Measures to empower the
Siblings by disempowering Lankan citizens and institutions have been a
ubiquitous feature of Rajapaksa rule.
The 1978 Constitution created an
all powerful presidency with just two shackles. The PR system was expected to
deny the executive a complete stranglehold over the legislature. The term-limit
provision prevented the über-powerful president from staying on beyond two
terms. J. R. Jayewardene had to leave after two terms. Chandrika Bandaranaike
Kumaratunga’s attempts to elongate her political life were defeated by the PR
system.
The Rajapaksas have overcome both
constraints. A concoction of managed elections, inducements and compulsions has
enabled the UPFA to obtain a two-thirds majority in parliament. The 18th
Amendment removed the term-limit provision while empowering the Presidency
still further.
The Ruling Siblings’ appetite for
power is limitless. The next
(interrelated) goals are to subjugate the Judiciary and to emasculate the 13th
Amendment by repossessing the powers of the provincial councils.
Thus the immediacy and import of
the Divineguma Bill.
The Divineguma Bill is the
successor to several failed attempts to empower the Rajapaksas at the expense
of provincial/local authorities. These included amending the Town and Country
Planning Act to enable the regime to expropriate any piece of land by declaring
it a sacred area; setting up a ‘Corporation’ under the purview of Gotabaya
Rajapaksa to take-over the functions currently allocated to CMC and several
other municipal councils; and the Jana Sabha Bill aimed at rendering the
elected provincial councils and local government authorities subservient to the
unelected Jana Sabhas, controlled by Minister Basil Rajapaksa.
The regime had to abandon each of
these measures due to judicial intervention and public opposition.
In 2010, the Supreme Court
approved the 18th Amendment, which re-conferred a lethal level of power on a
president unimpeded by term-limits. The Chief Justice who oversaw that cardinal
error acknowledged it obliquely, just before his retirement.
In an April 2011 interview with
the BBC, Asoka de Silva emphasised that Sri Lanka needs a system in which one
person does not have the ‘discretionary powers’ to make top judicial
appointments. The 17th Amendment removed this ‘discretionary power’ but it was
‘re-established by the 18th Amendment’ he admitted.
Last week Wijedasa Rajapaksa, the
President of the Bar Association, made a similar point: “There is too much
power concentrated on the executive. The leaders have become arrogant. They
seem to think that everybody should succumb to their power…” (Daily Mirror –
25.9.2012). Mr. Rajapaksa also
identified the recent Supreme Court determination on the Divineguma Bill as the
immediate reason for the executive’s current ire against the Judiciary.
The assertion makes sense. The
Divineguma Bill is aimed at further extending the already extensive economic
empire of Basil Rajapaksa. Public funds amounting to Rs. 80 billion will
reportedly be allocated to the Divineguma Department and a policy of total secrecy
imposed on all its employees. The Bill will also denude the provincial councils
of quite a few powers. Thus the Bill, if enacted, would constitute a great leap
in the anti-devolution and anti-democratic direction.
Just hours after his Brother, the
Speaker, announced the Supreme Court decision regarding the Divineguma Bill,
Minister Basil Rajapaksa “assured hundreds of agitators that the proposed
Divineguma Department would be established under an Act of Parliament
irrespective of whatever the constraints were” (Island – 18.9.2012). Given the
disarray in the opposition and the supine conduct of the SLMC, the only really
existing constraint before the Divineguma Bill remains the Judiciary. Thus
subjugating the Judiciary would be a matter of priority for the Rajapaksas.
Targeting the Judiciary?
Fernand Braudel in his seminal
work, ‘A History of Civilisations’ posits that the word ‘civilisation’ in its
plural form is used to denote ‘the characteristics common to the collective
life of a period or a group’.
The Rajapaksa civilisation is
characterised by Rajapaksa power manifested as Familial Rule. For instance, in
a normal lawful democracy, Gotabaya Rajapaksa would be just a senior
bureaucrat. As the President’s brother he may enjoy some privileges but that
biological fact would not entitle him to super powers. But under Familial Rule,
Gotabaya Rajapaksa, the de jure bureaucrat is almost as powerful as the
President.
Soon after the parliamentary
election of 2010, Mr. Rajapaksa, in a thought-provoking interview, expressed
“concern that a section of officialdom could help the separatist cause by
trying to appease foreign governments and some funding agencies” and
highlighted the “pivotal importance of the Judiciary, particularly the Attorney
General’s Department, in supporting the government’s efforts to suppress
terrorism” (The Island – 17.4.2010). These opinions indicated a future time
when not just the democratic opposition and peaceful dissent but also any
manifestation of independence and constitutional fidelity by the bureaucracy or
the Judiciary will be conflated with treason.
That time is here.
The Divineguma Bill will be
approved by all UPFA-controlled provincial councils. It will encounter
impediments only in the East and the North.
The Eastern outcome will depend
on whether Rauf Hakeem is willing to do irreparable harm to fellow Muslims by
obeying the Rajapaksa-dictat and voting for the Bill.
The North will present a far more
dilemmatic logjam. There is no elected provincial council in the North and
short of a large-scale daylight robbery the UPFA will not be able to win an
election there. So the regime will insist that its hand-picked Governor has the
power to approve the Bill, in the absence of an elected council. Eventually the
issue will have to be decided by the Supreme Court.
Thus the urgent Rajapaksa need to
suborn the Judiciary.
According to media reports, the
regime is planning to move against the Judiciary for its insistence on playing
its constitutionally mandated role as a coequal pillar of the Lankan state.
“The battle between the government and the Judicial Service Commission is
likely to intensify, in the wake of certain decisions taken at an emergency
meeting President Mahinda Rajapaksa had with several ministers and presidential
advisors… According to highly placed government sources, one of the
recommendations made at the meeting was for the President to take stern action
against certain JSC officials… the
emergency meeting was called as a response to a statement issued by Secretary
of the JSC, Manjula Tilakaratne, alleging various elements were exerting
pressure and influence on the JSC…” (Ceylon Today – 26.9.2012).
The Rajapaksas’ Southern modus
operandi constitutes not of generalised offensives but of targeted attacks, to
render silent/inactive the more vocal/active members of the entity they seek to
control. The reported plan to target the Secretary of the JSC fits in with this
mode.
Will the Judiciary save itself
from irrelevance by preventing the further erosion of democracy and rule of
law?
The future awaits.
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