Featured image by Sri Lanka Mirror
“The winds must come from somewhere when they blow,
There must be reasons why the leaves decay;
Time will say nothing but I told you so…”
WH Auden (If I Could Tell You)
Ravindra Wijegunaratne, Admiral and Chief of Defence Staff, epitomised impunity as he swaggered into Fort Magistrate Court, white uniform gleaming, medals blazing. He had ignored three judicial summons, treating both the courts and the CID with unconcealed contempt. Protected by the President of the republic, and by his position as the highest ranking serving military officer, he clearly saw himself as way above the law.
It would all change in a few hours.
Inside the courtroom, the admiral came into encounter with democracy at its best, where the law was blind to titles and positions, and concerned solely with justice.
He emerged from that encounter in handcuffs, his cloak of impunity in tatters.
That episode could have had a different ending, easily. The admiral could have swaggered out of that courtroom a free man, having trampled justice into submission.
Justice prevailed in part because judicial independence was restored in 2015.
Sri Lanka always had brave and principled judges. Justice became scarce when political leaders were wedded to impunity and treated the law as a tool to reward acolytes and punish opponents.
In 2012, the then president Mahinda Rajapaksa summoned the members of the Judicial Services Commission for a meeting. The JSC, aware of its position as an independent body, refused to obey the summons.
A few days later, Manjula Tilakaratne, High Court Judge and Secretary to the JSC was pistol-whipped by a gang of thugs in a busy suburb.[i] No one was caught, no one was punished.
In January 2013, the Supreme Court ruled that the Parliamentary Select Committee set up by the then Speaker (and presidential sibling) Chamal Rajapaksa to conduct impeachment hearings against Chief Justice Shirani Bandaranayake was not properly constituted, and thus had no power to conduct an investigation against the CJ. Six days later the Appeal Court quashed the PSC’s findings. Two of the Appeal Court judges received death threats. Speaker Rajapaksa and President Rajapaksa ignored both rulings. The CJ was impeached, removed, and replaced with a man known as a legal underling of the ruling family, who had lied at an international forum about the fate of Prageeth Ekneligoda.
In maintaining judicial independence, the nature of the political landscape plays a crucial role. The executive might want to interfere with the judiciary. But how far will he/she be allowed to go? The Rajapaksas went all the way, and nothing and no one could stop them.
The illegal impeachment against Shirani Bandaranayake was a primer of how Rajapaksa power worked in practice.
October 31st 2012 – The Supreme Court’s decision refusing to give a free pass to the Divineguma Bill handed over to Speaker Chamal Rajapaksa.
November 1st 2012 – An impeachment motion against the CJ, signed by 117 UPFA parliamentarians, handed over to Speaker Rajapaksa.
November 15th 2012 – Speaker Rajapaksa appoints a Parliamentary Select Committee (PSC) to hear the charges against the Chief Justice. The Chief Justice’s request for five weeks to prepare her defence refused by PSC.
November 23rd 2012 – PSC begins hearings. An opposition request for a pause in the impeachment proceedings during parliamentary vacation rejected.
December 7th 2012 – PSC, sans its 4 opposition members, concludes its hearings December 8th 2012 – PSC hands over its impeachment report to Speaker.
1st January 2013 – Supreme Court rules against the PSC
7th January 2013 – Court of Appeal quashes PSC’s findings.
10th/11th January 2013 – Parliament debates and approves impeachment by a majority.
13th January 2013 – Chief Justice removed from office.
That was how the Rajapaksas obeyed court rulings.
Maithripala Sirisena has not gone that far. He hasn’t because Sri Lanka is not the same place it was in 2012 or 2013. We can still backslide into those bad old days when the president was king and his word was the law, but it hasn’t happened, yet.
How democracy is killed
Maithripala Sirisena wants a second presidential term. He unleashed an anti-constitutional coup because the yearning for power robbed him of his senses. That was the subjective factor. At an objective level, his actions constitute an attempt to reclaim for the presidency the powers it lost with the 19th Amendment. If that attempt succeeds, it will render the presidency omnipotent again, and reduce the legislature and the judiciary into mere appendages of a sovereign president.
The saga of Admiral Ravindra Wijegunaratne is a microcosm of this battle by the executive to regain control over the other branches of the government. The way that saga ended indicates that there is hope of rolling back the presidency’s power-grab, and restoring a degree of balance between the executive, the legislature and the judiciary restored.
In their book, How Democracies Die, Harvard University professors Steven Levitsky and Daniel Ziblatt focuses on how elected autocrats kill democracies. They point out that it is common for anti-democratic demagogues to inch close to power even in advanced democracies. The real test of survival is twofold. Can would-be authoritarians be kept out of power? Will the autocratic leader subvert democratic institutions or be constrained by them?
In Sri Lanka, democracy is being undermined by a man who was elected and functioned for a while as a democrat. Now the question is can the legislature, the judiciary and society prevent him from strangling democracy to death, one measure at a time?
So far, there’s hope. The manner in which the sudden transfer of Inspector Nishantha Silva was thwarted is indicative of how the larger threat to democracy can be defeated. When IP Silva was given his lightning transfer out of the CID, the faux government did not expect a backlash. They couldn’t have been more wrong. Voices were raised, from media and society (notably Lastantha Wickremetunga’s daughter, Ahimsa). IP Silva made use of a key democratising structural change effected by the 19th Amendment – independent commissions. He complained to the Police Commission. The Police Commission wrote to the IGP, objecting to the transfer. In a stunning move, the IGP revoked the transfer.
Abuse of power, absolute impunity, and overweening arrogance are integral to any presidential system, because its model is absolute monarchy. Kings don’t like to feel hemmed in. They appear sane, as long as they are allowed to have their unimpeded way. That changes at the first obstacle. When an executive presidency is installed in a country with an ontological memory of absolute monarchy, such as Sri Lanka, the danger of a president seeing himself/herself as an omnipotent and infallible sovereign is infinitely greater.
Power is the great corrupter. Possessing it or yearning for it can make even the most democratic and principled leader become the antithesis of his/her former self. This can even happen to leaders who through their commitment to democracy have achieved political beatification, such as Aung San Suu Kyi. If she can fail, what of Maithripala Sirisena – or Ranil Wickremesinghe or Sajith Premadasa?
“It takes a village to raise a child,” says an Igbo and Yoruba proverb. It takes a country of citizens to build and protect a democracy. That is why we need rules, regulations, separation of power, devolution of power, an independent judiciary, a depoliticised military, and above all, a citizenry unwilling to bow to power.
In despairing and hopeful times
Emperor Caligula is said to have denounced the unpopular deeds of his predecessors in his first major speech to the Senate. The senators ruled that there should be an annual recitation of his speech. As Mary Beard points out, “It looked like a tribute to the new ruler’s oratory; in reality it was an attempt to hold him to his pledge of good behaviour.”[ii] The senatorial ploy failed abysmally, as history records.
When kings go back on their positive promises, the reason is not a genuine loss of memory, but the belief in monarchical infallibility. ‘King can do no wrong’ is part of the credo of monarchical absolutism. Whatever the king says and does is right, even if it is the antithesis of what he said and did yesterday. Similar tragic-comedies can ensue, when an executive president begins to see himself/herself as monarch.
There is plenty of recorded evidence proving that both Maithripala Sirisena and Mahinda Rajapaksa knew that post-19th Amendment, a president couldn’t dissolve parliament at will. Here is Mr. Sirisena celebrating that change and taking the credit for it in an interview with The Hindu: “Firstly I succeeded in getting the 19th Amendment to the Constitution passed in parliament… Earlier the president could dissolve the parliament after completion of one year of parliament, but now under the provision of the 19th Amendment it has been extended to four and a half years.”[iii]
And here’s Mahinda Rajapaksa lamenting that change in a BBC interview soon after his SLPP won the February 2018 LG poll. “We ask for a general election… There is a small problem in the Constitution. The President can’t do it. Because there is a clause preventing him from dissolving until after four and a half years. If the government gets together it can be changed.”[iv] (Note: Translation provided by author).
So both leaders violated and continue to violate the constitution in full knowledge of their crime.
Leaders who have neither shame nor justice can plummet to the lowest of depths, because for them everything is permitted. Today those leaders are Maithripala Sirisena and Mahinda Rajapaksa. Post-2020, it can be the next president, whoever he is. The battle is not about individuals. The battle is about the soul of Sri Lanka. Do we want a country where the President is sovereign, monarch in all but name? Or do we want a country where no one holds absolute power; and neither the executive nor the legislature can debase the judiciary by turning it from the last refuge of the powerless to the first tool of the powerful?
Do we want power run mad, or do we want the sanity that can come only with limits?
Mr. Sirisena constitutes a danger to Lankan democracy, but not the main danger. He is too weak politically, too ally-less. His failure to ensure protection for the Admiral will make other state employees think twice about obeying blatantly unconstitutional orders. His alliance with Mahinda Rajapaksa is tenuous at best. Within the SLFP, a rebellion is brewing against him. He is a man whose options are dwindling by the hour.
Mr. Rajapaksa is another matter. He has a family and a party behind him, and a committed vote bank. He also has a key foreign ally in China. The decision to hastily approve two deals (with a combined worth exceeding 50 million dollars[v]) with China to upgrade Colombo port is indicative of this strategic alliance. Since China has lost Maldives for now, greater importance would be accorded to the task of turning Sri Lanka into a total dependency (with the UNP, it will be only a partial dependency). In turn for accepting the rising hegemon’s tutelage, money is bound to flow into Rajapaksa coffers.
Unlike Mr. Sirisena, Mr. Rajapaksa is yet to say that he will abide by court decision. He wants an immediate election, not to strengthen democracy but to end it. He believes that an immediate election (and one held under his control) will enable him to win a two-thirds majority. Then he can amend the constitution, contest the presidency in 2020, and be king again.
What will he do, if those dreams are threatened by Maithripala Sirisena?
Already there are attempts to incite racism. Attempts are being made to depict the TNA’s valuable contribution in defence of the constitution and democracy as a national threat. Soon the Muslim parties will receive similar treatment. In the coming weeks, we might hear more of the farcical assassination attempt against Maithripala Sirisena and Gotabhaya Rajapaksa. And there might be sudden outbursts of violence in the North or the East, the sort of incident which can be used to ignite minority phobia, addle Sinhala-Buddhist minds with fear and give credence to the perennial Rajapaksa slogan that ‘motherland is in danger’ and only Mahinda and Gotabhaya can save it.
To read more about the current political situation, click here.
[i] https://www.reuters.com/article/us-srilanka-judiciary-attack/sri-lankan-judge-pistol-whipped-colleagues-strike-idUSBRE8960G120121007
[ii] Confronting the Classics – Traditions, Adventures and Innovations.
[iii] https://www.thehindu.com/opinion/interview/Solving-problems-of-Tamils-is-my-obligation-Sirisena/article16442765.ece
[iv] අගමැති පදවිය එපා, මහ මැතිවරණයක් ඉල්ලනවා – මහින්ද BBC Sandeshaya