All frosts, no thaws in impeachment imbroglio

| 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.

This appeasement of the citizenry’s base desires for ‘bread and circuses,’ the rulers believed, was the most effective way to rise and then hold on to power. The bread and circus tactic is still used by regimes across the world to great effect, temporarily blinding the people to economic burdens and injustices perpetrated upon them by their rulers. Sri Lanka last week seemed a case in point.

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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