| by Dharisha
Bastians
Courtesy:
Financial Times, Colombo
“I think he
knows what Rome is. Rome is the mob. Conjure magic for them and they’ll be
distracted. Take away their freedom and still they’ll roar. The beating heart
of Rome is not the marble of the senate, it’s the sand of the colosseum. He
will bring them death – and they will love him for it” – ‘Gladiator,’ the
movie (2000)
( December 20,
2012, Colombo, Sri Lanka Guardian) Prior to the decline of the Roman Empire,
the emperor and aristocrats regularly provided cheap food and entertainment to
the people of Rome to keep them good humoured and approving of their leaders.
The Gladiatorial games and circuses both inflamed and gratified the passions of
the populace, making them less inclined to engage and interfere with politics
and neglectful of civic duty.
Night racing
After several
weeks of hectic prepping, the spectacle that was the Colombo Night Races
unfolded last weekend at the makeshift track at Galle Face. In the run up to
the event, army soldiers were hard at work, piling up sandbags and setting up
the spectator stands for audiences that were expected from around the city and
other parts of the island to witness the popular drag race style sporting event
get underway in the streets of the capital.
Flashy sports
cars fixed with special lighting effects make this a particularly entertaining
spectator sport and proved vastly popular when the Carlton Sports Club pulled
the races off last year. This year the organisers took the event one step
further, even introducing a three wheeler race, with drivers decked in full
black racing outfits and sporting helmets.
Every year the
races come with their share of controversy, due to road closures and general
inconvenience to the public and hotels and restaurants in the Fort area. This
year however, thanks to the racing car duty concession which became the
highlight of the Government’s budget for 2013 and came just weeks before the
racing event took place, opposition parties found more fodder than ever to wrap
the Night Races in scandal and allegations of corruption.
The JVP has
charged that the Carlton Sports Club with its affiliations to the ruling
family, had received Rs. 200 million in tax concessions to import fancy racing
cars and notified of the duty reduction well ahead of the budget presentation.
The main Opposition UNP made the Lamborghini-Badagini slogan the keystone of
its anti-Budget rhetoric, which constantly reiterated that the UPFA Budget for
2013 was a bonanza for the one per cent and created further economic distress
for the rest of the country. But all this notwithstanding, the Colombo Night
Races drew large crowds throughout the weekend and was generally heralded as a
much needed boost to the city’s seasonal night life, with fireworks displays
and after-parties for revellers once the races were over.
Almost as soon
as the races ended, the Government slapped a mammoth Rs. 10 increase on petrol
prices, once again fulfilling economic predictions that price increases would
be inevitable before the end of the year in order to help to bridge the growing
trade deficit.
Distractions
But also
providing much needed distraction were reports of ‘strange lights in the sky’
on which the Sri Lanka Air Force claimed it was keeping a 24 hour vigil. The
Government also asked the public to hand over any alien granites that were
found in the areas above which the lights were hovering to the Medical Research
Institute. Coupled with ‘red rain’ in Monaragala which scientists claim could
be a result of pollution and fish rain in Matara which the Ruhuna University is
reportedly probing, the strange phenomena are all contributing to the end of
days conspiracy theories circulating in the country in the backdrop of the
much-hyped Mayan calendar end of the world predictions for 21 December 2012.
The truly apocalyptic weather patterns wreaking havoc around the country,
killing and injuring dozens and displacing thousands are contributing to the
overall doomsday predictions.
Even as the
country grappled with the news of Navy and Air Force rescues in flood-stricken
areas and landslides that were burying mothers and children alive, there seemed
to be a temporary lull on the focus on Hulftsdorp Hill, where Chief Justice
Shirani Bandaranayake is engaged in the battle of her career, against a ruling
regime that is adamant to remove her from office.
CJ fights back
The Chief
Justice yesterday struck back at the Parliamentary Select Committee that found
her guilty on three charges contained in the impeachment motion, by filing
action in the Court of Appeal seeking to quash the PSC report and prohibit the
Speaker from acting on its findings. The senior team of lawyers headed by
Romesh De Silva PC are being instructed in this case by Neelakandan and
Neelakandan, Attorneys at Law. In the petition, Bandaranayake’s lawyers have
sought to break down the findings of guilt, with documentary evidence,
including bank statements and clarifications of account information. The
petition also seeks to refute the testimony provided to the PSC by Supreme
Court Justice Shiranee Tilakawardane.
Undoubtedly, the
Government’s decision to pit one justice of the Supreme Court against another
in this trial against the Chief Justice will have serious consequences for the
Judiciary, no matter what the ultimate result of the saga will be.
Chief Justice
Bandaranayake was granted a major vote of confidence last Saturday when in a
highly charged meeting of some 3000 lawyers in the Bar Association of Sri
Lanka, pledged not to recognise the next Chief Justice appointed if the
Government proceeds with what they called the illegal impeachment of
Bandaranayake, as exclusively reported in Daily FT, which obtained a copy of
the resolution prior to the BASL meeting.
Senior lawyers
said that although several pro-Government lawyers had been present at the
meeting and some of them attempted to disrupt proceedings and stand against the
resolutions, the majority of the Bar including several attorneys that have
recently represented the members of the Rajapaksa family stood firmly against
the process undertaken to impeach Chief Justice Bandaranayake, as lacking in
due process because it refused to grant her a fair trial. At the end of the
meeting, BASL Vice President Anoma Goonethilake who stood against the
resolutions adopted quit her post. However BASL President Wijedasa Rajapakse
said later that Goonethilake was prejudiced in the matter pertaining to the
Chief Justice because her husband was the investigating officer at the Bribery
Commission that was investigating a complaint against Bandaranayake.
Violence
As the legal
fraternity takes up arms against moves by the regime to interfere with the
Judiciary and bend it to executive will, the battle promises to become very
ugly. On Monday (17), an outspoken critic of the impeachment process and
Convenor of the Free March movement which is a constituent association in the
Lawyers Collective that leading the anti-impeachment campaign, Guneratne
Wanninayake was set upon by an armed gang who attempted to attack him while he
was in his car on the way home.
According to
Wanninayake who reported the incident immediately to the Borelasgamuwa police,
the men escaped in a white van. The daytime attempted assault reeked off
similar intimidation moves including the recent attack on Judicial Services
Commission Secretary Manjula Tilakaratne who was pistol-whipped in Mount
Lavinia and several other incidents that resulted in fatal circumstances,
including the daytime murder of The Sunday Leader Editor Lasantha
Wickrematunge. Each time, the perpetrators of these attacks on regime
detractors, somehow escape the net of the law.
Former UNP
Deputy Leader Karu Jayasuriya has become a vocal critic of what he calls the
regime’s strong-arming of dissidents. Having fallen foul of UNP Leader Ranil
Wickremesinghe, since he contested the latter for the party leadership in 2011,
Jayasuriya is no longer provided the Opposition Leader’s office at Marcus
Fernando Mawatha for press briefings. Undeterred, Jayasuriya sets up a weekly
media briefing at his private Kirulapone office, where for 20 minutes he
addresses journalists from behind a desk upon which is placed a green
table-cloth and an elephant paperweight. The humble premises in no way stems
the senior lawmaker’s determination to oppose the incumbent administration on a
range of issues from oppression, rule of law, good governance to the wastage of
public monies.
Over the last
few weeks, Jayasuriya has focused on the war the regime is waging on the
highest Judiciary, which he calls another ‘step in the administration’s march
to dictatorship’. This week, the UNP MP strongly condemned the attack on
Attorney Wanninayake, saying that these eerie coincidences had made the public
fully aware of who was behind the white van attacks. “The people will not be
suppressed by tear gas and guns forever,” Jayasuriya charged, claiming that the
Government was making use of the complete breakdown of the rule of law to
suppress any form of dissent.
Resistance
Opposition to
the impeachment is building from every quarter. Last week the Commonwealth
Judges and Lawyers issued another statement criticising the parliament’s
arbitrary actions to remove the Chief Justice in a trial that violated
Commonwealth Principles on governance and separation of powers. UNP MP Mangala
Samaraweera earlier this month wrote to the Commonwealth Secretariat urging the
Commonwealth Secretary General to take action against Sri Lanka for violating
the Latimer House Principles in attempting to remove the head of the country’s
Judiciary.
Last Friday, the
Congress of Religions in Sri Lanka issued a hard-hitting statement said that
“the Government appears to have been motivated more by a series of decisions of
the Supreme Court in recent times, which went contrary to its expectations,
than by a prima facie case for impeachment. If that be the case, the
independence of the Judiciary, which is a cornerstone of a democratic polity
and the last bastion of Justice for the people, will be in grave jeopardy.”
The statement
was signed by Buddhist, Hindu, Christian and Muslim religious leaders. It came
as a shock to the Government of President Mahinda Rajapaksa that the
signatories also included Archbishop Cardinal Dr. Malcom Ranjith and Bellanwila
Wimalaratne Anunanayake with whom the regime maintains very good relations.
In the face of
this groundswell of pressure from legal and civil society, the Government
shifted gear and went into damage control mode last week. With the PSC report
having been drafted and presented in unseemly haste, for better or worse the
Government found itself with little option but to convince the people of Sri
Lanka and the wider world of the report’s legitimacy even as the legal
fraternity mobilised to denounce the report as biased, ex-parte and
incompatible with the laws of natural justice.
Over breakfast
Following his
remarks at the opening of new building of the Chartered Institute of Sri Lanka
in Colombo last Tuesday, where he announced that an independent committee would
be appointed to review the PSC report, President Mahinda Rajapaksa invited
newspaper editors to breakfast at Temple Trees on Thursday (13). Also present
at the breakfast pow-wow were several Government members of the PSC, including
Chairman Anura Priyadarshana Yapa, Wimal Weerawansa and Dilan Perera. Both
Perera and Weerawansa were in the limelight after news broke that the two
Government members had allegedly cast derogatory remarks at the Chief Justice
during her last appearance before the Committee.
Chief Justice
Bandaranayake’s lawyers on Friday wrote to Speaker Chamal Rajapaksa detailing
the specifics of the abuse by certain Government members on the Committee and
urged action against them. At the breakfast meeting however, Yapa flatly denied
that the two Ministers had been abusive towards Bandaranayake. Perera quipped during
the breakfast that it appeared that the UNP had a syndrome with regard to all
the Chief Justices whose names began with S – “Samarakoon and Sarath Silva. Now
even when it comes to Shirani, they are creating a big fuss,” he said.
The President
and the Government team justified the impeachment saying it was the opposition
UNP and JVP that first called for her removal after the dubious share
transaction at NSB during her husband’s tenure as Chairman of the bank. The
President and his team also struck back at the agitating legal fraternity
saying that the Chief Justice was banding together with lawyers to make
political mileage out of the issue in a manner that was unbecoming of her
office. The Government has been irked by scenes in front of Supreme Court each
time the Chief Justice answered PSC summons, with hundreds of lawyers turning
out to express solidarity with her.
Mingling with
editors over the kiribath and string-hoppers, the President bemoaned the fact
that all other major issues in the country were taking a backseat to the news
about the impeachment which was dominating the headlines. He told editors that
even the budget had gone largely ignored as a result. President Rajapaksa also
said that the last times the UNP had begun impeachment proceedings against a
Chief Justice they had not asked for judges for the Commonwealth, even though
the party was pushing for it now, with a private members bill to enact a
procedure for impeaching judges of the superior court.
C’wealth judges
The UNP struck
back at this remark by President Rajapaksa on Tuesday (18) by releasing a
letter issued from Sri Lankan High Commissioner to the UK in 2003, Faiz
Mustapha PC to Prime Minister’s Secretary Bradman Weerakoon informing him that
further to a discussion with Minister Milinda Moragoda, the Mission in London
had made inquiries from the Commonwealth Secretariat about obtaining the
services of sitting judges from the Commonwealth to inquire into the
allegations for impeaching then Chief Justice Sarath N. Silva in the event the
UNF Government decided to proceed with the impeachment.
The letter also
includes a response from Lord Brenan of the Secretariat, who had suggested the
names of several retired judges from New Zealand, India, UK and Australia and
Canada to go into the inquiry against the Sri Lankan Chief Justice.
The response of
Lord Brenan about the criteria to make it possible to create a tribunal made up
of retired judges of the Commonwealth was as follows:
1.To
be paid reasonable remuneration and expenses for travel and accommodation and
any necessary secretarial or administrative help.
2.They
be given immunity from suit, either within parliament or without including any
indemnities to costs or damages should they actually get involved in any
parliamentary or civil proceedings
3.The
tribunal hearings take place in a neutral building, ie: neither Parliament nor
the courts
4.The
hearings to be in public
5.During their
stay in Sri Lanka they be housed in private and secure accommodation
6.Subject to the
Standing Orders of Parliament they should have control over their proceedings.
The appointment
of the independent committee to review the PSC report meanwhile remains in
flux, as the Government tries to find ways to legitimise the PSC report. With
fresh challenges against the report now in court, following the Chief Justice’s
petition to the Court of Appeal, the ruling coalition is adamant to tell the
world that the process undertaken to impeach Bandaranayake was perfectly
constitutional.
The Government’s
argument to the international community is that even in the United States, the
process to impeach a Supreme Court judge is undertaken by the legislature – the
two houses of Congress. However, with the US Constitution’s commitment to the
separation of powers and checks and balances being acute, safeguards have been
put in place to ensure fair trial for judge under scrutiny. In Nixon V. United
States, the US Supreme Court states that “judicial involvement in impeachment
proceedings even if only for purposes of judicial review is counterintuitive
because it would eviscerate the important constitutional check placed on the
Judiciary by the framers”.
Accusers cannot
judge
But the judgment
goes on to say that the framers of the US constitution also sought to place two
major constitutional safeguards on the legislature to keep it in check
regarding impeachment proceedings. The first is that the whole of the
impeachment power is divided between the two legislative bodies with the House
given the right to accuse and the Senate given the right to judge. “This split
of authority avoids the inconvenience of making the same persons both accusers
and judges; and guards against the danger of persecution from the prevalence of
a factious spirit in either of those branches.”
The second
safeguard is a two thirds super majority required to pronounce on the guilt of
a judge. The last time a Supreme Court judge was impeached – meaning a
resolution of impeachment was moved by the House of Representatives in the US
was in 1804. In that instance, trial was held in the Senate which found the
judge innocent and proceeded to allow him to continue to serve on the bench
until 1811.
The premise that
no man shall be judge in his own case, or as in Nixon V. US, that accuser and
judge are not the same, significantly is the due process that legal experts and
the wider world community see as lacking in the impeachment proceedings
undertaken against Chief Justice Bandaranayake.
As the
Government struggles to find a way out of the impeachment imbroglio by
achieving Bandaranayake’s removal without too much loss of legitimacy, its
greatest trump card is the lack of unity amongst sections of civil society and
the opposition that are raising their voices against the process. A fractured
Opposition and reluctant civil society are being borne along on the
anti-impeachment tide by the sheer grit of the legal community that is flatly
refusing to be divided and remain as resolved as ever to fight the regime on
the issue all the way, by lobbying internationally and mobilising locally.
True liberty
struggle
Some analysts
say this is how it should be, if this is in fact a true struggle for liberty in
Sri Lanka. They illustrate the example of the Magna Carta which was signed
following a rebellion of the barons against arbitrary action by King John.
These rebellions were not uncommon during a monarch’s tenure in this period,
but historians say that in 1209, the rebels could find no ready replacement for
King John around which they could rally. The King was forced to sign the Magna
Carta which required the monarch to proclaim certain liberties and safeguarded
the citizen from his arbitrary control by proclaiming that free citizens could
only be punished according to the law of the land. Instead of overthrowing the
monarch in order to put another potentially autocratic ruler in his place, the
Barons swore fealty to King John in exchange for the systemic change that
better guaranteed the people’s safety from the arbitrary will of their rulers.
Political
leaders have failed the Sri Lankan citizen time and again, with each ruler
perpetuating a feeling that his predecessor was comparatively the ultimate
democrat and pluralist.
This battle to
safeguard the Judiciary cannot be entrusted to politicians because it is fundamental
to a citizen’s liberty, and it is that understanding that is driving the civil
society movement to ensure that political machinations do not create a systemic
breakdown that will place the people under the jackboot of political authority
with absolutely no way out.
(The writer is a
journalist with the Financial Times, a daily newspaper based in Colombo, where
this piece originally appeared. For more information please visit at www.ft.lk
)
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