The morning after (impeachment)

J.R. Jayewardena was president for more than 11 years.  I remember a few things about him.  First, the 1978 Constitution.  I also remember the line with which he launched the ‘Open Economy’: ‘Let the robber barons come’ (and how they did!).  I remember the Referendum of 1982.  I remember the July 1983 riots. I remember the shameless submission to Indian hegemony in July 1987, which beefed up Tamil chauvinism and spawned the provincial council system. 

Ranasinghe Premadasa inherited a democracy in shambles and a bloody insurrection.  I remember that he planted trees.  I remember his housing projects. I remember some 60,000 people being killed and I don’t remember there being any Weliamunas, Jehan Pereras, Saravanamuttus, Sunilas, Nimalkas, Gordon Weisses, Navi Pillays or Channel 4s objecting.

We had Chandrika Kumaratunga from 1994 to 2005.  I remember a ‘package’ but that’s about it.

Mahinda Rajapaksa is recent. Current.  Memory is fresh, therefore.  I remember a lot of things, but I will mention a few.  First of all I remember his maiden speech as President when he requested people to avoid singing his praises. No prashasthi gaayana (hosannas), he requested. 

I remember that he gave political leadership to the struggle to rid the country of the terrorist menace.  He didn’t do it alone, but he played a key role.  No one thought it could be done and few would have imagined he was capable of doing it.  I am grateful. 

I remember also that he moved to amend the constitution for the 18^th time, thereby abolishing term limits.  He stands to benefit, given the obvious advantages of incumbency (JRJ had two terms and so did Chandrika and Rajapaksa; Premadasa was assassinated and Wijetunga stepped down).  It also did away with the flawed 17^th Amendment, without being a corrective but rather a throw-baby-with-bathwater exercise.  I objected. 

I am no clairvoyant and so I shall not speculate on what might happen and whether or not I would remember the ‘possibles’ of the future.  I doubt, however, that if I am alive 5 or 10 or 20 years from now and happened to be writing the ‘unforgettable’ of Mahinda Rajapaksa’s tenure as President I would neglect to mention the impeachment of Chief Justice Shiranee Bandaranayake.

There have been arguments.  We’ve heard rhetoric. There has been logic.  And if these appeared to be voluminous it is because the politics that birthed them came in tons.  So much so that even the ‘neutrals’, i.e. those who really thought beyond person, party, preferred outcome and such, appeared thickly compromised in one camp or the other.    

The judiciary spoke. So did the legislature.  The executive has spoken too. Some say, ‘match over’. Some retort ‘the fat lady is yet to sing’.  Some say, ‘battle won, but the war will be lost’.  I said that if it was a matter of Mahinda Rajapaksa vs Anarchy, I would hesitate to pick the latter.  In general ‘let’s get rid of the dude first’ type exercises leave a lot of people dead.  I believe there has to be a better way.   

The judiciary spoke, as I said.  Parliament had no ears.  ‘International conspiracy’ was tagged to all persons, groups and moves that stood against impeachment.  I believe that this is only partly true, for I don’t believe that everyone who opposed subscribed to the outcome preferences of people like Paikiasothy Saravanamuttu, Sunanda Deshapriya, Elmo Perera etc.  S.L. Gunasekera, for example, would hardly break bread with that lot with a smile on his face.  The more sophisticated of the anti-impeachment commentators focused on process. 

When process is privileged, allegations can be left uncommented.  When process is privileged, the politics of the supporters, i.e. the true ‘why’ of position taken can be left unexplained.  There are those who say that the courts are corrupt.  I would hesitate before giving a blank cheque to the judiciary myself.  The fact that the Chief Justice is the ex-officio Chairperson of the Judicial Services Commission, does raise questions about the independence of any judge or any panel of judges assessing anything that involves the CJ, including of course her own petitions to the courts.  Still, the word of senior judges should be taken seriously and I believe their integrity should be presumed.  The determinations, therefore, are serious matters which Parliament ought to have treated with respect. 

Flaws in the constitution were pointed out.  Parliament insisted that the constitution is unflawed in terms of impeaching judges of the higher courts.  The Executive concurred.  No one should be surprised.  I am not. 

I am not surprised that the CJ’s backers made the arguments they made.  I am not surprised that they backed the CJ; well, most of them.  They were, after all, the very same people who backed Sarath Fonseka three years ago.  Not because they loved him, no one can deny this now.  It is not out of love for the CJ, concern about judicial independence, the undermining of democracy that issues such as this are heavily commented on and used as grist in the anti-Mahinda media mill.  If and when it all hits Geneva, it will still not be about any of these things.  Saravanamuttu, for example, has openly dedicated himself to ‘regime-change’.  ‘When did ever he care about the miseries of ordinary people?’ we can legitimately ask.  It is the same for others who suddenly realized that the impeachment was an ammunition dump.  I am not surprised. 

There are those who claim that the charges against the CJ are frivolous.  I don’t think they are.  But if the process was wrong and I firmly believe that regardless of the constitutionality or otherwise of the matter, there was a deliberate politicization of the issue by the regime.  The process smacked of vindictiveness and selectivity, both compromising the integrity of the impeachment process. 

The CJ, with or without the consent or complicity of her backers or rather the anti-regime circus, did herself no favors. The argument can be made that she’s eminently impeachable (subsequent to appropriate constitutional amendment, provided of course that the judiciary, seeing beyond personality and position, endorse the same) on account of her behavior during this process;  which is not to say that she has an unimpeachable pre-impeachment track record.  The antics of the Government and its backers certainly made it possible to tag ‘witch-hunt’ to the process, thereby effectively giving the CJ and her friends, new ones (JVP, sections of the BASL) and old ones (Saravanamuttu, who is a fellow devolution, nay federalism-lover and Chandrika Kumaratunga, who took this lady who was not an Attorney-at-Law out of academe and dumped her in the courts, with her happy consent of course) the opportunity to cry ‘foul’. 

The behavior of the Chief Justice, before and after the process began, tells me in no uncertain terms that she falls well short of expectations.  She has, by omission and commission, helped compromise the dignity of the position.  If people felt divorced from courts before, if they felt that lawyers lived on dates and that judges were in the take or just didn’t care, they might feel that not just insulted but humiliated to boot.  Worse, they can’t be blamed if they can’t differentiate court from thovil maduwa or Lipton Circus, considering the coconut-smashing and chest-beating that took place respectively in what used to be a place of sobriety.   

The only consolation for the executive and legislative branches is that they have (unfortunately) played true to form.  No surprises.  They need not have dragged the judiciary down, but then again it seems that dragging the courts down was what they needed.  Shameful.    

President Mahinda Rajapaksa gave political leadership to the struggle to rid the country of the LTTE.  I am grateful.  He did away with the 17^th Amendment and did not replace it with better checks and balances, but consolidated his hold on absolute power with the enactment of the 18^th.  No cheers for that.  No cheers for the circus that this impeachment became.  President Rajapaksa is the Executive President under the 1978 Constitution (with the added advantages of the 18^th Amendment).  Credit for all good things go to him and rightly so.  The buck also floats up to him.  Ex-officio.  I am not surprised or disappointed, not because I wanted this outcome but because politicians rarely rise to be statesmen.  He did not.  No hosannas.

I mentioned J.R. Jayewardene at the beginning.  His ghost presided over this drama.  He did not die, then.  He needs to.  Speaker Chamal Rajapaksa, belatedly, blamed the constitution and called for re-haul.  He deserves a clap. A slow-hand one. 

 

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BASL Resolutions and implications

The Bar Association of Sri Lanka (BASL) adopted three resolutions yesterday relating to the impeachment of the Chief Justice.  In essence, the BASL requests that the President re-consider the impeachment, called for ‘the enactment of procedural laws in relation to the removal of judges of the Superior Courts while ensuring a fair trial by adhering to principles of natural justice’ before proceeding if the first request is turned down, and if the CJ is removed without such enactment and fair-trial guarantees to ‘not welcome’ the CJ’s successor. 

The second and third resolutions clearly assume that the first (request) would be turned down.  The BASL implies in the second resolution that there is a constitutional flaw.  Calling for law-change in mid-process could open a legal and constitutional (if not ethical) can of worms.  Constitutions are not cast in stone, which is why there are provisions for amendment.  What stands has stood, for better or worse, for close to three decades without a murmur of concern being raised by the BASL or anyone else.  This raises the question, ‘Was the BASL ignorant of relevant articles in the Constitution all this time?’ There was politics then and there is politics now, this much is clear.  If the rules can’t keep politics out, then they need to be changed.  Not in the mid-process, not least of all for the bad precedent it sets.  

The allusion to ‘natural justice’ is interesting.  Many BASL movers and shakers are also vociferous supporters of a query currently in the Supreme Court regarding the constitutionality of the impeachment process, essentially asking the CJ to offer determination on a case whose outcome may be detrimental to her interests.  That ‘violation of natural justice’ has not warranted BASL comment.  Neither has the BASL thought fit to observe that if current strictures are inadequate, illegal or violate principles of natural justice it follows that a CJ is unimpeachable, a sorry state of affair which rebels against the fundamental principal of equality before the law.  

The third resolution is a threat, unadulterated.  It appears that the BASL, the governing body of lawyers, has erred on at least 3 counts here.

Firstly, Sec 41 (1) of the Judicature Act gives an Attorney-at-Law an unimpaired and unhindered right to appear before any court or tribunal set up for the administration of justice. Resolution 3 takes away this statutory right.  Secondly, If the CJ is impeached it would have been done both constitutionally and legally (never mind the morality of intent) and therefore the BASL has to recognize it.  Thirdly there is a Constitutional requirement for the President to appoint a new CJ and a new CJ would be appointed constitutionally and legally; therefore there is no ground for the BASL to not recognize a new CJ and to prevent lawyers from appearing before him/her.

Now the wording can be interpreted to mean that what the BASL meant was not to welcome her officially, but lawyers are lawyers and interpretation as per convenience is their bread and butter.  One cannot but note that when Dr. Bandaranayake was appointed, she did not have an official function to ‘present herself before the legal professionals’, perhaps fearing a snub of the kind threatened by this resolution.   

Quite apart from all this, we have a situation where the BASL appears not to know the meaning of ‘unanimous’.  The Vice President of the BASL in fact resigned after objecting to the entire process which she claims was undemocratic. Worse, Dr. Bandaranayake’s lawyers, Neelakanthan and Neelakanthan, operating almost like a Public Relations firm as opposed to a company of lawyers, issues a statement ‘on behalf of client’ to tell the public that Dr. Bandaranayake is grateful that the BASL ‘was unanimous’ in supporting her.  A lot of ‘interpretation’ there of course, but more than that a clear indication that client and/or legal representative have no clue about the meaning of the word ‘unanimous’. 

The BASL has every right to engage in politics.  Responsibility and dignity cannot be demanded but only observed in word and deed and indeed breach of the same.  The BASL was political when its members, with or without the blessings of the body, turned the Supreme Court into a kattadiya’s carnival, and unknowingly or unknowingly gravely compromised the dignity of the post of Chief Justice by taking the politicization of the impeachment to a higher level.  How their high minded notions of ‘natural justice’ and ‘impartiality’ are served by appearing before a judge who they cheered and whose ‘nod’ they received, they have the intelligence to deduce.  The CJ is grateful to the lawyers, by admission.  Will ‘gratitude’ not play in deliberations, one can ask.  The person and the post both appear compromised and the BASL can no longer claim innocence in the outcome.   

It is easy to take refuge in the notion that if everything is out of order it’s perfectly alright to be out of order ourselves.  BASL moves, despite all this, appears to be symptomatic of constitutional flaw no less pronounced than other articulations of the same errors.  It calls not for constitutional tweaking, but comprehensive constitution-review with a view to develop a fresh document, a 3rd Republican Constitution.

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Impeachment moves into Sakvithi-Mode

Sakvithi Ranasinghe, accused of swindling clients of millions of rupees, is reported to have undressed himself in court on Friday to protest procedure.  Not everyone undresses in public in a literary sense, but many do so metaphorically.  These are days of accusation and conjecture, selective references to rules and regulations and shrill protests and counter-protests.  These are days of appearances. These are days of undressing, unwitting for the most part. 

C.A. Chandraprema, columnist for The Island and well known political analyst recently stated that the accusations of vindictiveness against the government to the effect that proceedings against the Chief Justice do appear to have some logic.  To paraphrase, he said, ‘Charges are leveled against a person and thereafter his wide, who is the Chief Justice (CJ), determines that the signature development project of the Government is unconstitutional, a determination followed by impeachment proceedings; “vindictiveness” can be construed.’

The Government has, by omission certainly and possibly by commission, politicized the process, adding credence to the vindictive-accusation.  This has led to a situation where the veracity of evidence is being question and charges are being leveled on counts of fabrication.  What is indisputable, though, is the fact the CJ’s own documents compromise her to the point of impeachment.  Her documents impeach her and moves to frill the process and turn it into a circus only robs sobriety from it and impeaches the Government on true intent. 

On the other hand, if the Government wanted a circus, it seems that those who oppose the impeachment have agreed to provide the clowns.  It has come to a point where political acrobats are being upstaged by politico-legal clowns.  Let’s talk more about appearances.

People have short memories.  The first to raise objection to Shiranee Bandaranayake was the Opposition.  This was long before the Divi Neguma Bill came up.  The shrill objectors included NGO personalities with sad, clownish and pernicious track records.  Today they attend demonstrations supporting the CJ, appearing as though they’ve burnt to cinders their ‘good governance’ handbooks.  They could, if they believe they are honest (which they are not) fault the Government for what appears to be a witch-hunt but raise queries about issue of propriety in the CJ’s behavior with respect to her many bank accounts, strange deposit-withdrawal records and interest-conflict in handling the Ceylinco case.  Instead, they appear to be playing moment-politics spurred by regime-hatred.    That’s self-stripping of a kind.

Then we have the lawyers playing kattadiya and turning the Supreme Court into a thovil-maduwa, a circus in its own right.  If the Government is finger-poking and thereby desecrating those hallowed chambers of justice, these ladies and gentlemen are but playing accessories-after-the-fact or worse, besting the Government in some strange game to turn the judiciary into a laughing stock in the public eye.   They have played political-entourage to the CJ’s manifest assumption of a political persona.  They’ve cheered the CJ and the CJ has acknowledged with tacit if not open encouragement.  

The independence of the judiciary and especially the Supreme Court, then, in this instance at least, has been damaged not by the executive or legislative but by the lawyers and judges themselves.  Self-immolation, one might call it.  It can also be called self-stripping.  How this impacts the CJ’s ability to hear cases where clients are represented by what might be called (members of) her cheering squad does not require elaboration. 

Then there are those special lawyers, those who have been retained to represent the CJ’s interest directly and those, like Wijayadasa Rajapaksa, who are batting for her outside the impeachment process.  It is strange that some of these very people have and are representing Ceylinco against the depositors who were robbed of millions and millions of rupees.  Strange, also, because of a) the CJ’s decision to) take over the case, b) the manifest leniency on the accused and foot-dragging in concluding the case in contradiction of assurances given to depositors, and c) the involvement in purchasing a Ceylinco property.   Nothing illegal about it of course but it is still hard to digest.

Politicians strip themselves often enough.  That’s not news. Here, though, we are seeing a new set of strippers, who don’t want to acknowledge stripping and would have us believe they are fully clothed. 

At the end of the day, Sakvithi Ranasinghe looks more clothed than this lot.  More honest.  And that, ladies and gentlemen is not something to laugh about. 

[Published in 'The Nation', December 16, 2012] 

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The original sin of selection

The fate of the Chief Justice is now officially in the hands of the Parliament and thereafter the President, in the event that Parliament recommends removal from office.  The fate of the dignity of her post, parliamentary procedures, impeachment processes and the nature of power separation between the executive, judicial and legislative arms of the state will remain a matter for constitutional amendment, interpretation and the extent to which the primacy of public will and public trust congeal within these institutions and processes. 

Time will tell. 

For the last several weeks the rhetoricians have ruled.  The law and due process have been overshadowed by a preference for emotional outburst.  The nation Is used to parliamentarians behaving like hooligans, so their outbursts don’t surprise any more.  However, when lawyers (individuals who are supposed to ponder words spelled out in black and white) resort to smashing coconuts and appealing to astral entities whose existence is fictional, only those motivated by narrow political objectives can cheer. 

All things in this world are subject to the timeless truths of birth, decay and death. People come and go. Institutions are more resilient but are themselves subject to alteration.  Individuals can resign or be sacked, but the posts they hold survive them.  One can impeach a Chief Justice or a President, but one cannot retire the post of Chief Justice or sack the Presidency without risking anarchy unless alternative structures of justice-determination and executive authority, respectively, are legislated. 

While political circles have been busy pontificating on the legality of process, pointing fingers about vindictiveness and high-handedness, the manufacture of guilt and so on, there’s been a conspicuous silence about the genesis of the current tension between executive and judiciary, which has translated into a legislative-judiciary battle. 

The Constitution provides for appointment and removal.  The current debate focuses on ‘removal’.  The point is that ‘removal’ is consequent to appointment.  The public service does have recognized and established procedures of appointment.  Over the years, these rules have been bent for reasons of political convenience. On certain occasions even laws have been changed to facilitate appointment and promotion of favorites and the politically and administratively pliant. 

If the CJ is found to have been out of order, then the question that needs to be asked is ‘was she not properly screened?’  It goes for other ‘high posts’ too, including diplomatic postings.  Whatever the confusion regarding propriety of impeachment process may be, there is absolutely no doubt that this country woefully lacks a process of screening candidates to important positions in the administrative service and of course the senior most position in the judicial system. 

For all its many flaws, the system in the USA is far more stringent when it comes to screening candidates.  There are congressional and senate committees where candidates are grilled not just on track record, but decisions made and all manner of affiliation, official, semi-official and private.  In Sri Lanka, the notices for submission of public query come late, in small print and are largely ignored.  The signature of the process, if there be one, is rubber-stamping. 

In the case of CJ-appointments, especially since 1978, we have seen ‘friends’ being favored over seniority and competence.  This has led to an erosion of trust in both appointer and appointee.  The current tensions make for an ideal situation to revisit the appointing-moment and correct the obvious flaws which have at least in part snowballed into what some have called a constitutional crisis or worse a crisis of the state. 

Individuals come and go; systems are more sustainable.  Flaw in system naturally lead to error in selection and exacerbate the ill effects of a flawed appointee.  The entire script then has to be revised.  From scratch.  ‘Scratch’ here would be ‘appointment moment’. 

If one positive is to emerge from what has turned out to be a bitter and invective-filled process that is unhealthy to society as a whole, then it is a firm decision by all concerned to correct the relevant statutes on selection.  If we get it right at the proverbial ‘Square One’, future generations will be spared the hooliganism from all quarters as such we are witnessing today. 

['The Nation' Editorial, December 9, 2012]

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A note on resilience

Sri Lanka is a resilient nation.  The people of Sri Lanka lived through two bloody insurrections, three decades of war, and all manner of natural disasters capped by a tsunami that left hundreds of thousands homeless and over 40,000 dead.  And still we smile. 

 

When we talk of disasters, however, there is one which we routinely overlook: the 1978 Constitution.  This is strange, especially since the 1978 Constitution, both in article and lacuna, veritably presides over the playing out of tensions between the executive and judicial branches of the state (which have spilled over and found expression as tensions between the judicial and legislative branches).

The bone of contention is of course the Parliamentary Select Committee (PSC) appointed to investigate allegations against the Chief Justice (CJ).  The Supreme Court (SC) is currently in the process of hearing a petition querying the constitutionality of the PSC, a process which rebels against the principle of natural justice (where the CJ essentially is part of a process determining the legality of a course of action initiated against her).  Those against this move offer that it is pregnant with selectivity and vengeance.  Parliament has summoned the CJ to respond to charges and the SC seeks to summon the Speaker. 

As things stand, if the contentions of lawyers petitioning the SC are upheld, we would have to conclude that the CJ is above the law.  Since integrity, ethics and respect for institutions and posts such as the ‘Chief Justice’ have left the building a long time ago it is unlikely that any of the parties will back down from positions.  In a post-1978 Sri Lanka where the executive, legislative and judicial arms of the state have on numerous occasions encroached on one another’s territory, acted in high handed manner, shown unconscionable parochialism, selectivity and malice, the only word to describe things is ‘unfortunate’.  One should qualify thus: the only ‘generous’ word. 

All this serves only to turn playing ground into happy hunting ground for forces pursuing narrow political agenda which could very well result in Sri Lanka’s sovereignty being compromised and the people’s vulnerabilities further exacerbated.  The issue has been politicized from the beginning by all key players, a state of affairs which naturally provides a lot of ammunition for detractors of the regime and general Sri Lanka haters. 

Much of it is beyond control of course.  Sections of the Opposition, for example, sorely lacking in the proverbial straws to cling to, would naturally find in the CJ a new pretender (like it flirted with former CJ Sarath N Silva and like it leased out, in Sajith Premadasa’s now famous words, the presidential candidacy to Sarath Fonseka).   Those who saw the LTTE as a convenient ally in destabilizing the country (and later the Rajapaksa regime) and who now have lost that little money-spinning toy are likewise straw-clutching.  Let there be no doubt whatsoever that this issue will be taken up in Geneva in March 2013, even though there is nothing ‘unprecedented’ or horrific about a CJ being impeached. 

The best that the Government can do is to resist temptation to play the politicization game. 

The poster that was put up in Colombo this morning, with the legend ‘Lajjai Methiniyani’ (Shameful, Lady!), referring unabashedly to the CJ is an example of unnecessary (and distasteful!) politicization of the issue.  There is constitutional provision, one can argue.  If there isn’t then there is room for relevant amendment.  There is a process that’s underway.  The Government ought to let it run its course without frilling process and feeding those elements that would make things darker than they really are. 

To get back to resilience, it is pertinent to ask whether the current ‘impasse’, so-called, has the attention of the masses that some may say it deserves.  If there is ‘concern’, it seems largely hidden.  As prominent lawyer and political commentator Gomin Dayasri pointed out if the CJ is not ‘hero-to-be-followed’ in the way that Sarath Fonseka was (for some at least and for some time at least), it has something to do with how the people view the judiciary and the Army respectively.  The latter, people feel, they owe something to.  Not the former. 

What’s happening in the SC and in Parliament therefore has not prompted anything close to mass objection.  Moves against the CJ is not covering anyone in glory, true, but on the other hand the CJ’s moves to turn the Judicial Services Commission into a trade union is not eliciting any cheers either.  Lawyers and judges have already desecrated the courts by turning them into places where coconuts are smashed to obtain succor from deities who are supposedly amenable to vengeance extracting contracts.  The Parliament is and has been home to a lot of hooliganism.  If there’s more ugliness in store it wouldn’t surprise anyone.  It probably will spill into Geneva in March but that won’t surprise anyone either. 

Regimes thrive, become unpopular, survive unpopularity and give way.  It has happened throughout history, and as President Mahinda Rajapaksa is reported to have recently told MPs of his party, no one should harbor the illusion of political immortality.   Judges, likewise, have and will have their day. They too will pass. 

The people remain.  They have suffered much and survived much.  They are resilient. 

 

 

 

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