Appointment of the new Chief Justice in Sri Lanka: Resistance should continue

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Photo by AFP/ Ishara S. Kodikara, via Arab News

‘We won’t allow you to let the judiciary go to hell. We won’t allow you to do that.’ - (Mathiaparanan Abraham Sumanthiran MP)

No self-respecting person with integrity, or a shred of concern for justice should accept the President’s offer to become the next Chief Justice of the country. Those who support his bid, including, Vasudeva Nanayakkara who told the “judiciary to go to hell in Parliament on public camera, are guilty of complicity with the government’s bald attack on the independence of the Judiciary and attempt to undermine public confidence in it by twisting truth.  They join the regime in insulting judges, condone thuggery against peaceful dissent, dishonour the supremacy of the Parliament, and internationally disgrace the democratic institutions of Sri Lanka.

If the Bar Association accepts the new Chief Justice, they will undermine not only their own credibility but also that of the whole legal profession.  Sri Lanka will join the list of regimes that share complete disregard for democracy, civility, and justice, never mind ethics and morality.  Then the government will succeed in dividing and disrupting the principled collegiality among judges and among lawyers that is imperative for their independent and effective function, thereby opening more opportunities for politicization of the judiciary.

The efforts of the legal community to resist the impeachment and the appointment of the new chief justice will not bear fruit unless the majority of the Sri Lankan public principled international actors form a mass movement to challenge the undemocratic sources from which the government derives its power.

The illegality of the impeachment of the current Chief Justice has been much discussed. The Chief justice withdrew from a flawed impeachment process after the government denied her the due process guaranteed by the law. She objected to the attempt to sidestep the Constitution and all international norms pertaining to impeachment procedures.  Instead of properly investigating the serious charges against the Chief Justice, the Parliament and the President proved they no longer represent the people, and have refused to listen to their concerns.  Its disregard of the warnings of the international community has brought the Sri Lankan Parliament international disrepute.  The Chief justice earned the wrath of the government because she displayed much courage to uphold justice in delivering judgments against the government, despite the fact that the President appointed her.  She may be the straw that breaks the camels back!

The only worthwhile outcome of the impeachment is the revelation that the regime lacks moral credibility and legitimacy to govern the country.  The government has usurped the functions of the Judiciary and ignored sober legal judgments. The Parliamentary Select Committee violated all legal norms, as well as, the Constitution. The government has used the strength of state machinery to generate outrageous propaganda in support of its claim of rectitude.  The government tolerates the use of indecent  thuggery against the legally appointed Judges, and a tainted media spreads its lies in an attempt to quell dissent against the impeachment.   If it is allowed to succeed in its bid for more power by removing the chief justice, the reputation of the judiciary will be destroyed and no one, civilian or politician, will take its judgments seriously.

The President broke his word and did not appoint an independent committee to investigate the legitimacy of the PSC report.  President told the Supreme Court Judges that “It is still not too late for Ms. Bandaranayake to step down as Chief Justice,” said the President when he met with the judges of the Supreme Court. “If she did that,” he said he would “halt any action to remove her from office.”  President trumped up claims regarding the Chief Justice’s husband‘s alleged involvement in malfeasance NSB share issue that “we (the government) quietly covered it up, that is how it should be done after all, he is our man (ape miniha).” (Certainly helping ape miniha did not make his wife ‘our woman’ (ape gani), instead it boomeranged!) The President doesn’t have a clear conscience about the impeachment process, but this gesture cannot compensate for his misdeeds!

The Island report, which President Mahinda Rajapaksa “acted swiftly and decisively to prevent any member” to ensure two third majoring vote in favour of the impeachment motion, and subsequently, and the Speaker Chamal Rajapaksa’s call for change the constitution to avert another constitutional crisis, provides further credibility to the illegality of the impeachment process and raises serious questions about responsible use of Presidential immunity

A day after the President approved the impeachment, Malinda Seneviratne wrote, “President Mahinda Rajapaksa promised that the ruling party will show its strength when necessary. The ruling party did so on Friday, passing the impeachment motion against Chief Justice.”

What are the sources of government’s strength and power?

The government knows from experience that national and international protests will subside a few days after the impeachment. The international community has been a complete failure when it comes to competent intervention in Sri Lankan affairs. It has limited itself to empty rhetoric, and seems to care only that the Sri Lankan government serve its economic and geopolitical interests.

Protests in urban areas and complaints shared on social media will not change the government’s voter base. Governmental propaganda was successful because the main opposition UNP led by Ranil Wickramasinghe who has played a dastardly role and the anti-impeachment lobby failed to educate and mobilize the masses. The government’s claim that the Chief Justice caused the Golden Key crisis was sufficient to persuade the masses. The anti-impeachment lobby’s claim that the impeachment is unconstitutional simply failed to capture the sympathy of the masses. Claims of unconstitutionality, constitutional crisis, and talk of politicizing of the judiciary were not persuasively or powerfully presented and the people were given no explanation of the impact such violations might have on their daily lives.  These communication failures supported rather than challenged the government, allowing it to continue to mislead the public at the same time it presented the international community with “evidence of democracy in the country” that it tolerated the dissent of urban activists and social media protesters.

There is no credible opposition leader in Sri Lanka. Mr. Ranil Wickramasinghe of the UNP is simply not an ineffective opposition leader; he actually serves the government’s interests more than his own party’s.  Wickramasinghe cannot lead the country on a democratic path — this should be clear after his loss in more than twenty elections, and yet he refuses to step down. The UNP has promoted JRJ’s undemocratic Constitutions in the past, and one cannot expect Mr. Wickramasinghe to represent change when he does not even support democracy within his own party.

Ranil Wickramasinghe is partly responsible for two myths that prevent the public scrutiny of the Rajapaksha regime.  The first myth is that there is no other alternative to the UPFA (the alternative includes Mr. Wickramasinghe as well) and the second is that the parliament is supreme.  The anti-impeachment lobby has done too little to create an public awareness that the parliament which is subject to checks and balances by the judicial and executive branch is not supreme in law of in fact, in form or in substance. Nor can a parliament of mostly unprofessional, irresponsible and incompetent MPs and leftist geriatrics be supreme!

The government and its supporters will continue to play on xenophobia to suppress public criticism, and to blame international conspiracies for the country’s internal problems. This is an easy way to sway public sympathies and avoid taking responsibilities for its own positions. This is similar to the divide and rule policies of the colonial governments.  Many intellectuals, left-wing political parties, and media personalities back politicians who continue to Thrive on such policies. (Though some are now busy using their mastery of rhetoric to distance themselves from the government after selling their souls to create it)

The transnational capital, neoliberal institutions, and powerful nations are likely to limit their opposition to impeachment to simple rhetoric because they are pleased with the Rajapaksha regime that has reservations about sacrificing countries’ political and economic sovereignty to capitalist and geopolitical interests.

A number of (i.e. intellectuals, lawyers, business magnets, NGOs, journalists etc.) from whom the society expects to challenge the status quo are too dependent on the government patronage. The government power also rides on those with a sense of gratitude for defeating the terrorism and government’s lack of enthusiasm in devolution of power to the Tamils. These folks are complacent with government substituting development and securitization for justice for minorities.

Ethno-religious nationalism and ‘freedom’ from terror, when combined with visible signs of ‘development’ (e.g. infrastructure, tourism, gambling etc.), is still too powerful to make government’s impeachment misadventure a sufficient reason to make the regime unpopular among the masses.  It may be a luxury for those struggling for survival to think about term economic, political and environmental consequences of development for a multicultural and aid dependent country like Sri Lanka.

The religious establishments’ due to variety of reasons (e.g. fear, wealth, patronage, power etc.) have failed in their duty to be the moral backbone of the society by subjecting the impeachment process to critical scrutiny of their respective religious theologies – aside from a brief statement by the interreligious organization.   The uncompromising ideological agendas, activism and the rhetoric of the minority of radicalized religious groups seem to be at ease under the present government to carry out their respective agendas.

Excessive political and economic power in the hands of the four members of the ruling family completely controls affairs of all branches of governance unprecedented in any time of country’s history or in any decent democracy.   The government has effectively breached the boundaries that exist between different branches of the government.  Hence the all systems of accountability and transparency have become defunct.

The impact of the social media, while indispensable to express dissent against the impeachment, is still limited to a minority of computer literates, with access to computers.  The gap between the majority populations’ views about the impeachment and those expressed in social media is wide but may be closed in the days ahead as resistance from the judiciary and civil society builds and people are educated on the subject by the dissenters.

We must change all this if we want to restore democracy in Sri Lanka.  Change means to reclaim our entitlement for democratic institutions, which requires short and long term strategies to challenge the above sources from which the government derives its power.

In the short term we must continue to reject the new Chief Justice. We must hold to account those who ignored court orders and insulted the judiciary, those who were in contempt of court. The opposition parties should bring a motion of no confidence against the regime for abusing and insulting the supremacy of the Parliament and illegality of the impeachment process.

Our efforts will bear no fruit unless we can educate the public about the gravity of the predicament that the country faces. We must mobilise them into a mass movement if we want to force the government to change its behaviour. Strength of such a movement also requires getting principled support from the international community.

Without a principled social movement there can be no credible opposition: this is our most important challenge. The country should not and need not wait for one political leader to spearhead this movement.  Nor should the primary objective of the movement be overthrowing the government, but rather, building democratic institutions out of which we could expect responsible political leaders both in the government and in the opposition. Hope lies instead in professionals, an educated citizenry and grassroots organisations, which can and must form the basis for a mass movement.  

Hope will become a reality only if its aspirants are prepared to endure chaos, uncertainty and sacrifices.