The Sunday Leader

Can The Judiciary Resist The Rajapaksa-tide?

“…the real tyrant is a man who sacrifices a whole nation to his ideal or his ambition’.
Camus (Caligula)

By Tisaranee Gunasekara

Supreme Court

Separation of powers and power-devolution are alien to Rajapaksa thinking and inimical to the Dynastic Project.
History’s watershed moments are generally identifiable only with hindsight. Sri Lanka might be experiencing an exception to this rule, as a government scheming to ‘overstep its proper powers’ is being resisted by a Judiciary trying to retain its constitutional role and democratic relevance.
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.

11 Comments for “Can The Judiciary Resist The Rajapaksa-tide?”

  1. Tony

    An excellent article. Certainly very thought provoking.

    • As if I care

      Lovely, very informative write up by Tisaranee

      Future Shock- the worst is yet to come.

      Well it’s the greedy Chief Justices that spawned the village jackal to power prodding him all along and the present is no different she even jumped the queue.
      Brilliant Urbanite female judges never wanted the chief’s job because they had self-respect.
      Don’t expect anything from the tip cuts they are chameleons – nana toppi galak uda.
      Rajapakse Familiar Francoista (the triple gem) His followers are the backboneless Peris, Silva etc like Spanish tiles pedigree.

    • samara

      brilliant piece that warns people of coming tyrrany of the family rule

  2. Wimal

    President and Chief justice are employees of Sri Lanka. They are been paid by public money. They are NOT working for us FREE. They are hired by the people to do the right thing for the country.

    It should not be any ego trip on any national issues.
    If president and chief justice don’t like to do what country need the most, they can go back to where ever they come from. There is plenty of better and qualified people out there to do a much better and quality jobs than this two.

    So, please don’t complicate the simple issue. If you can’t fixed, please get loss. I have seen and worked with better leaders around the world than this little monkeys.

    • As if I care

      Didn’t you try talking to Bush Jr who had two donkeys’ ears when he was in power that he is an employee and had to listen even to you?? Gullible man in his new found glory.

  3. gonraja

    Can resist because rajapakses are Untidy, not TIDE.
    mahinda gota basil the rat namal arent a tide, they are glorified storm in a cup.

  4. SAI

    get rid of this family rule nbroing back democrcy

  5. kumi suraweera

    Can the judiciary which gave way before the 18th Amendment play a vital role now? That’s the question. Does anyone remember how the present CJ became a judge in the first place? She was a law lecturer in Colombo University under G.L. Pieris. It was he who first brought her to the notice of President Kumaratunga (no relation), urging her appointment as a judge of the superior court! President K, at that time, still trusted the advice of Pieris. And he, perhaps, was confident that his young protege could be counted on to follow his teachings/counsel, in whichever way they happen to drift. Let us hope that, as in the case of Justice Neville Samarakoon, the present CJ confounds all expectations and meets the attacks on judicial independence boldly, as well as wakes up to the erosion of democratic rights of citizens that petitioners in the Supreme Court have sought to stem against all odds.

  6. Motta Paksa

    All our Country’s problems stem from the Top and from just One cursed family.
    It is very evident now that we are going from bad to worse, unless this curse and culprits are corrected or side lined as soon as possible.If not, don;t be surprised, we will go back hundreds of years…dog eating dog scenario or dying of starvation..Take your pick.

  7. Thushara Jansz

    In Sri Lanka, the judiciary is corrupt with a Chief Justice who has stooped low to congratulate a synthetic lawyer like Namal Rajapakse and dance according to MaRa’s tunes and up to now dance according to MaRa’s tunes. At present, the Attorney General’s Department is also corrupt with a low fellow like Palitha Fernando, the present Attorney General (who has prostituted his position by granting every wish of MaRa’s to protect his position) , whereas his predecessor Eva Wanasundara did a wonderful job by not taking illegal orders and did not dance according to MaRa’s tunes. As a result, not only the Judiciary but the Attorney General’s Department is also utterly corrupt.

  8. Iam the Percy

    Bravo Tisaranee, super duper article.
    Keep writing, your pen is fat more strong than chintanayaaa’s keppa boru tongue.

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