Breaching the last line of defence

On Saturday (6) evening at Temple Trees, President Mahinda Rajapaksa made a strange proclamation to a few foreign correspondents he was hosting to dinner. Asked if he was going to watch the much-anticipated ICC World T20 Final between Sri Lanka and the West Indies, President Rajapaksa quipped that on two occasions he had gone to the finals and on both occasions, the Sri Lankan team had failed. “Now I prefer to watch cricket on TV,” he explained.

The fact is that the President did attend the Lankan cricket team’s final matches in the Caribbean in 2007 for the World Cup final and more recently to Mumbai when the Sri Lankans lost the World Cup to India. A superstitious President’s House would naturally be wary of such trends.

In the Presidential box

Shock and awe registered on the faces of spectators at the T20 final at R. Premadasa Stadium last Sunday therefore, when the ESPN camera crew zoomed in on President Rajapaksa seated in his special box just minutes after the fall of the first Sri Lankan wicket with Tillekaratne Dilshan being bowled out by S.P. Narine.

Also watching the finals that day was UNP Leader Ranil Wickremesinghe who was seated in the Minister’s box along with Colombo Mayor A.J.M. Muzammil and Sports Minister Mahindananda Aluthgamage.

A short while after President Rajapaksa landed at the Stadium, as Sri Lanka began their run chase of what seemed to be a reachable total, Minister Aluthgamage went over to greet him. A few minutes later, he returned to the Minister’s box and informed Wickremesinghe that the President had invited him to his special box. Also present in the President’s box at R. Premadasa was Defence Secretary Gotabaya Rajapaksa and several other close associates of President Rajapaksa. Wickremesinghe agreed to join his political rival and the pair were pictured together during the first half of the Sri Lankan innings.

But sometime during the Lankan innings, when it became clear that the team was probably going to lose the cup despite Nuwan Kulasekera’s 11th hour bid to get Sri Lanka back in the game, the President left the grounds.

It was widely speculated that had the Lankan cricketers clinched the cup, the Head of State would have descended to the grounds to present the trophy to Skipper Mahela Jayawardane. Poetically, Jayawardane had been presented his Man of the Match trophy by Hambantota MP Namal Rajapaksa at the semi finals on Thursday (4) and his father would naturally be the presenter of the trophy at the team’s ultimate victory. But this was not to be. The only Sri Lankan representation on the presentation panel were Jayantha Dharmadasa and Aravinda De Silva.

In the end not a single Sri Lankan political figure was visible at the presentation ceremony, raising speculation that none of the Government politicians wanted to be associated with the loss.

All in all, Sunday 7 October, was a pretty bad day – for Sri Lankan cricket and democracy in Sri Lanka.

Assaulted

On Sunday, Judicial Services Commission Secretary Manjula Tillekaratne dropped his wife and son off at S. Thomas’ College Mount Lavinia for weekend extracurricular activities at the school. Perhaps preparing to wait for them to finish, Tillekaratne parked his car a little further down Hotel Road and proceeded to read the morning’s newspapers.

A white car approached Tillekaratne’s own vehicle and four unidentified men alighted. They commenced an argument with Tillekaratne, after which they hit him on his forehead and hand with the blunt end of a pistol before taking his mobile telephone and driving off. The incident occurred, ominously, in broad daylight on a very busy road. It also occurred on the weekend, when Tillekaratne does not have his regular Police escort.

Security is provided by the Judicial Security Division of the police to magistrates and district judges and the Secretary, Deputy Secretary and the Senior Assistant Secretary of the JSC during the week until the point at which these Judicial officers reach their residences each day. The Police Spokesman claims that additional security will only be provided if a request to that effect is made. Judges of the Supreme Court, Court of Appeals and High Courts are entitled to round-the-clock security.

Tillekaratne was rushed to the Accident Service at the National Hospital Colombo with lacerations to his face and bruising to his hand. Once it was determined that his injuries were not of a serious nature, the JSC Secretary was transferred to the Merchant Ward to be kept under observation. Among the first visitors to his ward were Justice Minister Rauff Hakeem and former UNP Deputy Leader Karu Jayasuriya. As the news spread, the trickle of visitors increased, with DNA Leader Sarath Fonseka and UNP MP Eran Wickremaratne also stopping by to visit.

Manjula Tillekaratne has been in the news a lot lately. On 18 September Tillekaratne in an unprecedented move issued a public letter on behalf of the JSC alleging that attempts were being made to influence and undermine the independence of the Judiciary. Ten days later, he told a media briefing that there was a threat to the lives of judicial officers, beginning with the Chief Justice.

His revelation was a result of a serious mud-slinging campaign launched against him by sections of the State media. In a bid to discredit Tillekaratne, the political powers are searching high and low in his past for misdemeanours and missteps. A special ministerial task force has been set up in fact, headed by Minister Nimal Siripala De Silva to inquire into how a resolution could be brought to Parliament for Tillekaratne’s dismissal.

Ten days after Tillekaratne claimed his life was in danger, he was assaulted in Mount Lavinia on the morning of the T20 final, when the entire country was preoccupied with that evening’s match. In light of Tillekaratne’s visibility and open criticism of the powers that be, the intelligent thing to do, observers claimed would have been to provide him with security and ensure his safety. It would have proven the Government’s bona fides especially after the President declared to newspaper publishers that there was no threat to the Judiciary from his Government.

Instead the JSC Secretary, latest in a line of Government critics, found himself beaten up on a public road in another stunning display of impunity and the complete breakdown of rule of law. On Monday and Tuesday this week, all Judges of the lower courts stayed away from court proceedings to protest the attack on Tillekaratne. The Bar Association of Sri Lanka has extended its fullest support to the Judges on the matter. Sri Lanka’s legal system ground to a halt for the second time in three months as the battle between the Executive and the Judiciary ceased to be merely a cold war and began to get very ugly.

Hakeem chided

One of the first to condemn the attack on Tillekaratne was Justice Minister Rauff Hakeem, who has been criticised lately for his indulgence of the regime’s every whim, first with the support extended to the UPFA to form the Eastern Provincial Council and then by voting in favour of the Divi Neguma Bill at the Eastern PC. But Minister Hakeem was to learn soon after his statement to the press that no good deed goes unpunished.

He received a call later that afternoon from President Rajapaksa who himself had called for an independent inquiry into the matter. The Minister was asked to refrain from making statements to the press regarding the issue again. To reinforce his point, the President called Hakeem again that night, telling him that his statement had put the Government in a ‘difficult’ position.

Be that as it may, the Government, which “condemned with disgust” the attack on the JSC, has demanded that the IGP launch a full-scale inquiry into the incident. Meanwhile, Mount Lavinia Additional Magistrate Ruchira Weliwatte instructed the Mount Lavinia Police to conduct a completely independent and impartial investigation and arrest the suspects at once. The Additional Magistrate told Police to ensure there was no interference with the investigation and to make sure it takes place under the direct supervision of the IGP.

It bears noting at this point that impartial inquiries are all the rage in Sri Lanka. Impartial inquiries were called for by the President when The Sunday Leader Editor Lasantha Wickrematunge was slain in broad daylight on a busy road. An independent inquiry was demanded when media activist Poddala Jayantha was discovered beaten within an inch of his life and thrown into a ditch in Mirihana.

The Police were ordered to investigate the abduction and assault of The Nation Associate Editor Keith Noyahr who was taken from his car outside his home by a gang in a white van and tortured for four hours before being dropped off in Dehiwala. The list of Government detractors to suffer this fate seems unending. Every time, the inquiry trail has run cold.

International conspiracy theories

Government Ministers like Wimal Weerawansa now charge that the attack on the JSC Secretary must be an international conspiracy. They claim a weekend Sinhala newspaper had warned of such consequences to Tillekaratne two days before the attack took place. It is, Weerawansa claims, an attempt to discredit the Government. Just like Wickrematunge’s killing. Just like Noyahr’s assault.

According to the ruling administration, the whole country is teeming with people wielding weapons and riding about in vans and cars in daylight assaulting Government critics in a bid to heap condemnation upon the regime.

Some opposition politicians however are attempting to stand with the Judiciary in their time of need and lay the blame for Tillekaratne’s attack squarely at the feet of the regime. Following his visit to the hospital, Jayasuriya charged that it appeared to be an act of State terrorism and certainly not the actions of an amateur drug gang as the Government was likely to claim. He said it was reminiscent of the “road accident” that killed the student union members during their long march to Colombo last month.

“This country is becoming like Mugabe’s Zimbabwe,” the senior politician charged. “This Government claims it defeated terrorism, but now they are perpetrating state terror on opponents. This is a terrible blow to democracy in the country,” he told the Daily FT last week.

Other UNP politicians have also rallied. The party’s new blood has decided to rally around causes with merit even when the stalwarts are slow to respond. These younger members are hoping their visibility and activism will re-energise the UNP base to stand beside them in anti-Government agitation campaigns. One MP quipped that it was no longer an option to wait for the leadership to act since the issues of the day were so critical.

Ranil’s petulance

Interestingly, Ranil Wickremesinghe was a notable absentee among the visitors list to Merchant Ward on Sunday. The UNP Leader has also failed to speak to the media or issue a statement on the attack on the JSC Secretary, despite the wide ranging impact of the incident. Instead, Wickremesinghe has maintained radio silence on the ongoing battles between the Rajapaksa administration and the Judiciary.

Wickremesinghe confidants claim that the UNP Leader believes that a lot of the problems the Judiciary was facing were those of their own making, having compromised their independence many times in the past. Wickremesinghe is particularly irked by former Chief Justice Sarath N. Silva’s ruling on the political crossovers in the very first case against Rohitha Bogollagama filed by the UNP, which by denying a political party the right to sack an elected Member of Parliament following defection, strengthened the hand of the Executive to lure opposition members to obtain a two-thirds majority in the Legislature, warping voter mandates.

Wickremesinghe also argues that the higher courts took no issue with the 18th Amendment to the Constitution which repealed the 17th and did away with presidential term limits, independent commissions and effectively accorded untrammelled power to the Executive President.

Accustomed to behaving like a petulant, sullen child when he feels slighted, Wickremesinghe believes that he owes the Judiciary no favours. In fact, according to Government insiders, when the decision was made to appoint Shirani Bandaranayaka Chief Justice, Wickremesinghe reportedly warned President Rajapaksa that this may be a mistake given that she had at least another 11 years on the bench before retirement.

Wickremesinghe’s critics therefore are now beginning to question whether it is his ultimate desire to see the Judiciary weakened so that when and if his turn comes to sit in the chair of the Executive, his leverage would be greater.

Sins of their own making?

Wickremesinghe’s worldview on the Judiciary simply paying for its past sins has found resonance in other quarters as well. Speaking on a radio show, nationalist and Attorney-at-Law Gomin Dayasri on Tuesday came out strongly against the Government’s decision to wage war against the Judiciary, but he did not stop there. Dayasri also blamed the Judiciary for doing its part over the years to dilute the peoples’ sovereignty particularly with regard to allowing crossovers to go unpunished.

Speaking to the heart of an issue that is front and centre of Sri Lanka’s problems with the Judiciary – especially with regard to archaic contempt of court laws – Dayasri said that the people should be critical of the Judiciary since they are not elected representatives. Interestingly, Dayasri noted that there were many younger Judges who are highly independent and keen to retain their integrity. He also said it was inappropriate for spouses of Judges to get special favours and their children to be appointed diplomats, with the caveat that it was a different matter if the persons in question were qualified for the jobs.

Meanwhile, the Cabinet-appointed Ministerial task force is also concerned with finding a way to frame impeachment charges on the present Chief Justice or find other ways to bar her from getting in the Government’s way.

At the Cabinet meeting last week, the Ministers appeared to have hit upon an issue they could use. One minister brought up the case of Edward Francis William Silva, President’s Counsel vs Shirani Bandaranayaka and three others in 1997. The four Fundamental Rights cases by a group of four senior lawyers were challenging Justice Bandaranayaka’s appointment to the Supreme Court bench. The other respondents in the case were Prof. G.L. Peiris on whose recommendation Justice Bandaranayaka had been nominated, K. Balapatabendi and the Attorney General.

Among their charges, the petitioners claimed that Justice Bandaranayaka had been a strong advocate of the devolution package of President Chandrika Kumaratunga and therefore had the open support of SLFP lawyers, thereby compromising her independence. The seven judge Supreme Court bench dismissed the petitions, ruling that “her views and conduct even if they related to political issues, were neither illegal nor improper and did not constitute a disqualification for office”.

In their judgment, however, they agreed that “they may disqualify her from hearing particular cases,” referring to cases pertaining to devolution, as in the case of the 13th Amendment, which is fundamentally affected by the proposed Divi Neguma legislation.

The Government is now engaged in efforts to find a way to bar the Chief Justice from hearing cases that directly deal with devolution, thereby neutralising her impact on the Divi Neguma and other such bills. However, legal analysts warn this might not be as easy as it seems, especially given the language of the 1997 SC ruling which clearly states that “they may disqualify her from hearing particular cases”. The phrasing fails to make it legally binding, because the word ‘may’ can never be construed as a directive.

The Government’s record of inability to brook dissent is underscoring the ongoing struggle with the Judiciary. Many members of the opposition feel the ability to effectively silence critics and dismiss detractors stems from the absolute power of the Executive Presidency.

Platform to abolish the presidency

In fact, the United Bhikku Front is putting together a common opposition platform to call for the abolishment of the executive presidency. Chief Prelate of the Kotte Naga Vihara and learned monk, Maduluwawe Sobitha Thero, Karu Jayasuriya and Sarath Fonseka are also involved in the alliance. The group held their first press conference yesterday and hopes to conduct its first public rally on 18 October.

Sobitha Thero, who enjoys a good relationship with Jayasuriya, has supported movements for social change in the recent past and is a strong critic of the Government’s often dictatorial policies. Jayasuriya says he joined the opposition grouping because he feels that it is necessary that the UNP gives leadership to any opposition struggle to abolish the executive presidential system.

Jayasuriya’s thinking is that since it remains a UNP policy to stand for the abolishment of the presidency and since that was the basis upon which the main opposition party fielded Fonseka as a common candidate, the party must stand with the common opposition alliance on the matter.

In fact, questions are being raised as to why the UNP establishment is not joining the cause since so far, neither Fonseka nor the UNP have officially changed its position on the matter. However, Wickremesinghe appears to have suffered a change of heart since the 2010 presidential poll and according to confidants now believes the executive presidency should stay in order to put the country right.

Speculation abounds therefore that the UNP Leader may constitute disciplinary action against UNP members who opt to join the United Bhikku Front alliance. On this issue too, then, Wickremesinghe is pulling against the common opposition tide, leading to renewed murmurs about his endgame and alleged dalliances with the ruling party.

Last line of defence

As the Government gears up for battle against the Judicial system, many plans are in the offing. Speaker Chamal Rajapaksa in a long statement in Parliament on Tuesday chastised the Supreme Court for delivering its ruling on the Divi Neguma bill to the Secretary General of Parliament instead of the Speaker of the House.

The Speaker’s statement, which highlighted sections of a statement made by former Speaker Anura Bandaranaike in which he argued the supremacy of the legislature over the Judiciary in 2001, was another indication that the Government is still smarting – and badly – over the Divi Neguma ruling.

The Opposition Leader may be smarting over certain poor decisions on the part of the higher courts, but in the present context, that seems a petty and irrational reason to stay out of an issue that is so critical to Sri Lanka’s democracy. In fact the UNP Leader’s reticence may even be construed as an attempt to strengthen the hand of the regime at a time when it is systematically undermining every other democratic institution in the country and vesting absolute power in the Executive.

With the 18th Amendment now constituted and the Government’s two-thirds majority in the House, thanks in no small part to mass erosions of members of the opposition, the Legislature is effectively redundant. The ruling regime can, if it so wishes, get any kind of legislation passed in the house, no matter how greatly it erodes democracy or oppresses the people. Parliament may be the greatest repository of the People’s Sovereignty, but the people have long since lost representation there. The media has been progressively cowed by consistent attacks and intimidation against it, leaving the people and the opposition without voice.

Effectively then, the only remaining instrument for enforcing checks and balances, so essential to a democratic system, lies with the Judiciary. Unelected and therefore with nothing compelling it to be populist, the Judiciary alone carries the burden of ensuring that Sri Lanka’s fragile democracy does not completely unravel. It is the citizen’s last redress, democracy’s last line of defence against an increasingly oppressive and invasive State. It is the only institution that can at this point, by upholding the Constitution, uphold the rights of the people.

Its attempts to do so have angered the establishment, to the extent that their members are now assaulted on the streets of the capital. The average citizen has realised the desperate need to protect the Judiciary; the legal fraternity view it as their bounden duty. The international community has decried the attempts to intimidate and harm judges.

On what moral basis then, Wickremesinghe critics say, can the opposition fail to answer their ‘distress call’?