13A: Under the gavel again!

• The controversial Provincial Council Act that proved the most proximate reason for the sacking of Chief Justice Shirani Bandaranayake from office may soon be returned to the Supreme Court as an Urgent Bill, with the Government likely to seek the Court’s determination on the constitutionality of amendments to the 13th Amendment that will dilute the powers of the councils and ensure they never stand in the way of the will of the Central Government again

After the sound and fury that was the impeachment of Sri Lanka’s first female Chief Justice in January this year, a quiet revolution has been underway in the country’s judicial system. The impeachment saga involving the country’s top Judge brought Hulftsdorp and its inner workings briefly into the limelight.

But in the aftermath of the appointment of Shirani Bandaranayake’s successor, the complex and now fractured legal system has returned to operating in the shadows at least in the sense that average citizens know or comprehend little about its workings.

Transfers, new appointments, strange and astounding proclamations from the benches of the courts have once again been relegated to basic reportage without context. Their brief awakening during the impeachment ordeal now ended, the citizenry has resumed its customary apathy, providing the incumbent administration that was gravely wounded by the illegitimacy of its actions in removing Chief Justice Bandaranayake a lifeline with which to consolidate its power over the judicial organ of the State.

The brutal impeachment of Chief Justice Shirani Bandaranayake was fobbed off repeatedly by sceptics of its impact as being an issue consuming the country’s intelligentsia and political elite, with little or no consequence for the average Sri Lankan. Efforts to stay the regime’s hand in removing Bandaranayake from office by the legal fraternity and civil society were dismissed as being attempts to effect regime change and discredit Sri Lanka internationally. Judicial independence, rule of law and an ethical procedure for the removal of senior judges were pooh-poohed as being high-brow and immaterial to the common man.

The common man’s conundrum

Five months on, nobody is more affected by the tectonic shift caused by the unconstitutional impeachment of CJ 43 than the average Sri Lankan.

Fundamental Rights or rights that refer to entitlements based on natural law are provided the highest level of protection by the supreme law of the land – the Constitution. Articles 10-14 of the Sri Lankan Constitution enshrine these sacrosanct rights, which guarantee citizens the fundamental freedoms essential to the dignity and protection of the human condition: the freedom of thought, conscience and religion, the freedom from torture and arbitrary arrest, the right to equality before the law and the freedom of speech and peaceful assembly.

Unlike other ‘lesser’ human rights, fundamental rights are enshrined in the constitution to afford them the highest protection – protection against the rulers and protection from excesses by the state. As guardians and sole interpreters of the Constitution, the citizens’ fundamental rights are upheld by the 11 judges that make up the Supreme Court of Sri Lanka.

Fundamental Rights applications can only be filed at the Supreme Court and may be filed only against officers and organs of the State, such as the Police Department or the Prisons Department. Fundamental Rights can neither be granted nor removed by a country’s governing authority. The country’s highest courts must then be the arbiter of cases between aggrieved citizens who feel their fundamental rights have been infringed, and agents of the ruling Government alleged to have been excessive. The 11 judges of the Supreme Court offer the citizen’s final domestic redress against excesses perpetrated upon them by the rulers of the day. They are effectively the gatekeepers of the citizens’ most basic freedoms.

Basic freedom status

Consider then the status of Vavuniya resident Ganesan Nimalaruban’s basic freedoms, a Police detainee his parents claim was mercilessly beaten and tortured into cardiac arrest in the Vavuniya Remand Prison. Nimalaruban died in Police custody at the Ragama Teaching Hospital in July 2012. He had been arrested in 2009 in connection with possession of a claymore bomb and detained under Emergency regulations.

The Police report claims Nimalaruban and other LTTE suspects were involved in a fast unto death at the prison in June 2012 during which three Police officers were taken into the prisoners’ custody, requiring a STF rescue mission to free the officers with the violent prisoners having being transferred to the Anuradhapura and Mahara Prisons. At the mortuary, Nimalaruban’s parents claim to have seen assault injuries on his body. According to the medical report, there were 32 injuries on Nimalaruban’s body at the time of death. The cause of death has been cited as a heart attack.

The Asian Human Rights Commission report on the Fundamental Rights case filed by the detainee’s parents that was taken up on 21 May is revealing. In open Court, remarks were made alluding to the fact that Nimalaruban’s parents were seeking documents from the Court to “procure the evidence and then circulate to the entire world to tarnish the image of the country”. The Chief Justice said that in some cases the executive submits confidential reports only for the eyes of judges “particularly where national security issues are concerned”.

According to the Asian Human Rights Commission report on the sittings, the Chief Justice also remarked that: “When the prison is under siege do you want the Prisons Commissioner to have to read to them the Geneva Conventions?... We don’t send nursery children to quell a siege. You’ve got to expect injuries.” When Counsel for the petitioner stated that everyone was entitled to the protection of the law, the Chief Justice responded: “The prisoners were engaging in a siege and they are entitled to the protection of law, provided they respect the law.” (Asian Human Rights Council Report – 22 May 2013).

Consider also the plight of petitioners filing a Fundamental Rights application against the Sri Lanka Land Reclamation and Development Corporation who were informed on 14 May that the Courts do not have the technical competence to go into the issues raised in the case. The Asian Human Rights Commission claims that according to a report by the BBC Sinhala Service, the lawyers for the petitioners were told they should advise clients to negotiate these problems with the relevant Government institutions and come to settlements instead of bringing such cases to Court. The proclamation effectively makes the State institution, the alleged violator of the citizen’s rights, arbiter of that conflict.

Amendments to 13A before SC?

It is before this Court, tasked with the sole jurisdiction to interpret the Constitution, that the Government hopes to place another Urgent Bill that seeks to slash the powers of provincial councils set up under the 13th Amendment as part of the Indo-Lanka Accord of 1987.

Controversies surrounding the 13th Amendment specifically with regard to the constitutionality of the Divi Neguma Legislation that sought to return some powers devolved to the provinces back to the Central Government may have cost Chief Justice Shirani Bandaranayake her job. Now, the 13th Amendment will likely return to her former courtroom, with the administration that sacked her from office now seeking the Supreme Court’s blessing to remove the very provisions of the amendment that allowed Bandaranayake to issue judgments that got in the Government’s way.

It is now being reported that the Government will introduce an amendment on an urgent basis that curtails the powers of the councils, especially in terms of its land and Police powers and ensure that provinces cannot be merged to create a single large council. Lastly, the amendment will ensure that in the future on matters concerning the powers of the provincial councils, the Central Government need only obtain the consent of a majority of the councils. This last change is particularly significant.

Removing a key safeguard  

According to provisions of the 13th Amendment, any attempt to alter the powers assigned to the councils can only be effected with the unanimous consent of all nine councils. Seeing as provincial devolution as set out in the 13th Amendment was aimed at achieving a political settlement to the question of self-determination for the Tamil community in a bid to end the civil war, the provision is a safeguard against enforcing majority will on the provincial councils of the north and east, that would be run by minority political parties as envisioned in the 1987 Accord.

The provision that was used by Chief Justice Bandaranayake to stall the Divi Neguma legislation by upholding the TNA petition when the Government attempted to get the Bill ratified only by the constituted provincial councils and the Northern Governor in place of the Northern Council in October last year.  The attempt to alter this provision, to ensure the Government needs only majority support and not unanimity from the councils to impose its will on the provinces, means that it will always prevail over the Northern Council, being assured of support in virtually every other region of the country.

The key amendment is a massive blow to provincial semi-autonomy as envisioned by the 13th Amendment and makes a mockery of the post-war assurances provided by President Rajapaksa to New Delhi and the international community that a just political settlement would be granted to the Tamils going beyond the powers and provisions granted by the Provincial Councils Act – an assurance that came to be known in political circles as 13 Plus. New Delhi, which has been repeatedly misled by the ruling regime in Colombo, is now likely to have to settle for 13 Minus – the 13th Amendment will not be implemented in full as promised by the Rajapaksa administration, and furthermore it will be made redundant by the time Colombo declares a northern poll in September.

Shifting the goalposts is a skill the Rajapaksa regime has mastered. The international tightrope might be pushing a highly reluctant regime towards holding an election it is nearly certain of losing come September, but it has decided it will be damned if it allows the TNA from wielding any more power than absolutely necessary. All indications are that India and the Western lobby will get the election it is demanding but not before its result is rendered meaningless in terms of offering genuine political devolution to the Tamils of the north.

Domestic pressure

With pressure mounting domestically from the Government’s constituent allies and the powerful Secretary of Defence Gotbhaya Rajapaksa, who are moving swiftly against allowing a “hostile” TNA provincial administration in the north to threaten the peace,  diluting the powers assigned to the provinces is President Rajapaksa’s compromise solution before he declares the northern election in September.

Holding the election, however unpalatable to the hawkish and ultra-nationalist elements within the administration, appears to have become imperative. This is especially in light of reference being made to President Rajapaksa’s commitment to hold elections in the north by September in the second US sponsored resolution against Sri Lanka at the UN Human Rights Council in March this year and the fact that Sri Lanka will host a major Commonwealth summit in November – the Commonwealth placing great emphasis on electoral democracy as being a core value to be upheld by its member states.

The rush to amend the provisions of the 13th Amendment at the eleventh hour also proves that despite claims about needing to finish basic reconstruction work before holding polls in the north, the true reason for the delay lay elsewhere. It is also further proof of the Government’s deep-rooted uncertainty, despite the rhetoric, that post-war changes in the island’s formerly embattled north have in any measure included attempts to genuinely reconcile and win the hearts and minds of the Tamil people residing in the region.

Psychologically, this is a twin blow to an incumbent regime that enjoys vast popularity in all other parts of the country and has grown dangerously accustomed to controlling all spheres of public life, even in areas in which they do not have an electoral mandate. The United National Party-run Colombo Municipal Council being a case in point. The beautification project in the capital and plans for its future are conducted under the sole auspices of the Urban Development Authority run by the Defence Secretary.

Changed and unchanged

In Kilinochchi, the LTTE’s former stronghold and showcase, a similar beautification project is underway. Wide two-lane roads run through the Kilinochchi Town and concrete flower holders decorate the centre islands along the A9. The Wanni and most of the Jaffna peninsula is a hive of construction activity, the most common vehicle along the road from Omanthai in Vavuniya to Jaffna being yellow construction trucks. On either side of the A9, quarry stones are heaped in numbered mounds for the railroad extension to Kankesanthurai. Government buildings are being given a facelift, shiny new constructions sporting glistening signboards and the customary photograph of the President, but for the most part still empty.

In the centre of Kilinochchi town last week, military personnel were dismantling a massive Vesak pandol displaying the ‘Legend of Dharmasoka’ inside the grounds of the Kilinochchi Central College (primary). The entire grounds was a designated ‘Vesak Zone,’ replete with corporate sponsorships.

All of the changes in the north are not State-driven either. People who had previously fled their homes due to the fighting are obviously returning to claim their homes and lands, many of them bullet-ridden and structurally compromised due to relentless shelling. The ghost town that was Chavakachcheri en route to Jaffna town not long ago sported an endless line of ruined and pockmarked houses bereft of inhabitants. Nearly all of those properties have now been reclaimed, the bullet marks cemented over, being painted and re-roofed back into habitability.

Most importantly, nearly every house has been separated from its neighbours with new parapet walls or barbed wire or metal sheet fences, a safeguard against a massive State land reclamation project underway in the region. Painted storks and hundreds of herons flock to the former lakes in Pallai and Iyyakachchi, often poisoned during the war by the LTTE in a bid to cut off water supplies to a massive Government security garrison in Elephant Pass stationed not far off. Four years after the end of the military conflict, the province is limping back to life and normalcy.

Yet, for all the positive changes being wrought in the Northern Province, some things remain tragically the same. Disappearances continue. More than 2,000 Jaffna residents have petitioned the Supreme Court against a land grab by the State. Military welfare outlets continue to do business in every town. Newspapers and journalists are repeatedly under attack. Peaceful protestors are denied the right of movement to lobby international agencies in the capital. The military presence remains inescapable.

These factors continue to sustain the Government’s unpopularity in the region and will almost certainly result in the UPFA’s defeat in any poll in the area for some time to come. The regime may not be able to understand the reasons why, but it is acutely aware of its inability to sway voters in the region.

Since its enactment, the 13th Amendment to the Sri Lankan Constitution has been fraught with controversy. Much of the Sinhala nationalist opposition to the amendment has stemmed from opposition to the Indo-Lanka Accord that resulted in the second JVP insurrection of 1988-89. The Tamil polity has always felt the amendment did not offer enough autonomy. The LTTE dismissed the provisions out of hand and continued to toe a secessionist line. Yet in its 26-year lifespan, never has the future of provincial devolution guaranteed by the 13th Amendment been more gravely threatened.

The solution, perceived by many Sri Lankans as being ‘imposed’ by New Delhi, has nonetheless withstood its challenges, largely due to the realpolitik calculation that Sri Lanka must not overly ruffle the feathers of its powerful neighbour. Finally, a Government in Sri Lanka has cast those concerns aside. In pursuing its unique foreign policy that pits New Delhi against Beijing with Machiavellian prowess, the Rajapaksa regime looks poised to dilute the conditions of the Indo-Lanka Accord and retract on all its promises to New Delhi on power devolution, with nary a whisper of protest from across the Palk Straits.