Economics Of Impeaching Chief Justice In The Absence Of The Opposition

by Kusal Perera

She’s abused, says the media. That was all some parakeets could do. She, Chief Justice walks out and that’s all she could do, as well. The UNP members in the PSC says, the CJ should be given a fair chance and be persuaded to attend PSC sittings, stressing they will stay on and fight to the end. The “end” was decided before the beginning. It was for that, the PSC was appointed by this regime with a 7 to 4 margin and not with a single vote majority of 6 to 5.

We  now  begin  the  ascendency  to  the  next  ugly  phase  of  Executive  power strengthened  through  the  18  Amendment  to  the  Constitution  (for  now,  lets  not discuss Justice Shirani Bandaranayake’s hand in it) and that of economics under this regime. This for me therefore is no narrow issue of saving or cleaning the CJ. It is for me a much broader political issue of contradictions within the system created to develop a free market economy through political patronage. A situation where answers are sought for the inherent contradictions within their system in continuing with the free market. Of course with not just political patronage, but with political partaking. A revised system that allows more powers, unquestioned in any forum. Some in fact marvelled at the arrogance of this regime in impeaching the CJ while the Universal Periodic Review (UPR) on Sri Lanka was on.

From the side of the regime, by 27 November, there was some justification, or rather, some explanation on why the CJ was impeached. In a neither official nor unofficial media intervention, a spokesperson for the Presidential Secretariat suggested that the CJ and her husband acted improperly, contravening legislative regulations. Only when  the number of  acts  began  increasing alarmingly  did  the  executives  of the legislature take up the issue, the spokesperson said. While that could be so, they need to be proved beyond doubt in an impartial and a fair forum.

Within Sri Lanka, protests against this arrogant impeachment remains a very isolated social protest by a concerned group of lawyers and some urban Sinhala middle class elements. What nevertheless becomes important is, the constituency of the growing protests. For the first time, a conspicuous section of the Sinhala middle class that steadfastly backed this regime against LTTE separatism and promised a reasonably fair and comfortable post war dividend, has got dislodged from their “patriotic” Sinhala  platform.  They  now  seem  to  understand,  there  is  a  serious  mismatch between the regime they helped consolidate and its economic life that define its style of governance. These Sinhala urbanites have now joined the foray against the regime, buddying   up   with   their   direct   opponents   on   the   pro   devolution   platform, demanding a reversal of the impeachment. To that extent, the impeachment against CJ has shaken up the social power alignment against the regime.

What is also conspicuous is the absence of the political opposition that could exploit such social bewilderment against this regime if they want to, but to date have not. The total collection of political and NGO personalities that dominated the “Platform for Freedom” show clear absence so far. They have not geared themselves in protesting against the impeachment. That again shows the reluctance in the UNP leadership in challenging the regime on this issue of impeachment against the CJ. Protests have thus remained without any political drive and without any connect to the larger social audience, leaving concerned lawyers and middle class urbanites to agitate as they could. The JVP too have not taken a clear stand on the impeachment and their participation in the PSC seems dubious and meek.

The impeachment process thus continues unabated, gathering arrogance from the side of the regime, now trying to tie up all State power into a single bundle. An attempt, seen by most anti Rajapaksa elements as “dictatorial” and a “crumbling of the State”. It is both and reason why the UNP leadership is playing it out with the regime through subtle compromises. For the UNP, at least for those who see eye to eye with Wickramasinghe, it is their responsibility to save the system on which they would have to live and take over. The problem the UNP leadership has with this Rajapaksa regime therefore is that, it had got into their shoes, not only in keeping a liberal market economy afloat, but is now getting into re designing the State to concur with the tottering economy.

UNP’s reluctance therefore to meet the Rajapaksas head on, leaves this regime with an advantage and makes it indifferent to those shifts in power balances in society. It is therefore most unfortunately clear, Ms. U.A.B.W.M.R Shirani Anshumala Bandaranayake’s fate as the 43rd and the first female CJ of Sri Lanka, would not be decided on how innocent or not she is. But, decided on the already finalised recommendation that would come to   parliament from the PSC and the vote from subordinate and tamed ones, waiting to say “Aye” to the Speaker on the impeachment.

What makes this regime so adamant and arrogant to go this far is certainly a clear tie up in how they manage, or rather handle the free market economy. The economy, with all the tinkering of numbers and figures to prove it is being set on a fast forward growth mode, delivers nothing to the larger constituency of urban and rural lower middle class and the poor. Despite Cabraal’s boasts of a “graceful growth” of around
06 per cent of the GDP needs no government to run the country, where the economy is  no  more  State  owned  and  controlled.  A  government  is  elected  to  lift  that percentage to over at least 10 per cent through well thought out incentives and restrictions or regulated markets in selected service and production sectors of the national economy.

In spite of what is said in the budget speech, it is not budget proposals that guide the economy. It had not been the budget that decided where the economy goes, even in the past few years. All through the year, supplementary estimates brought to parliament decide where and how the economy moves, if it does. In year 2011 by end September, 67 Supplementary Estimates worth billions of rupees, made the budget proposals for 2011 almost irrelevant. It can not be different in 2012 and would not be different, if not for the worse in year 2013, with a regime that turns arrogant each day. In a country where revenue projections in budgets either has no relevance in real  life  or  falls  short  by  two  digit  percentages  in  actuals,  where  even  reduced imports by 3.3 percent during the first 09 months in 2012 (year on year), yet keep the trade deficit increasing, where incentives are thrown out for laundering of black money legally, the judiciary in such a country, especially at its apex level, becomes crucial for economic survival of the regime.

Thus for the first time in the history of Executive rule in this country, the Attorney General’s Department was brought under the purview of the President. This has to be assessed within a culture of subordinate politics in the legislature and heavy politicising  of  all  important  State  agencies  and  institutes.  Assessed  within  the effective implementation of the 18 Amendment to the Constitution.

Even in such context of usurped power, the past months proved how important it is for this regime to have the higher echelons of the judiciary under its dictates. It had to scheme and manipulate with the parliamentary opposition to get the “Divi Neguma” Bill back in the Order Book, after it was effectively stalled by the SC. It had once again to play politics behind curtains with the opposition, to have the Second Reading   of   the   Budget   2013   and   vote   on   it,   that   nevertheless   remains unconstitutional with no required amendments made as determined by the SC.

Far worse it would be, to continue to have a SC that would sit on crucial FR petitions challenging the regime on monetary and financial issues, delivering on its own right. The FR petition filed by 11 trade unions on investments made from the Employees’ Provident Fund (EPF), praying for a permanent injunction on all such investments, which is a major source of unaudited big money for this regime, would be a problem if decided independently by the SC. It therefore has to be determined as decided by the regime. Such sensitive cases can not be left to chance, more so in the coming months and years.

It is pretty clear, this regime that wants to handles public money as it pleases, the very issue that was taken to Courts regarding the 2013 budget, can not go on with a judiciary that may not give priority to the regime all the while. Even if the conflict now in public domain was not there, the court would have held that permission granted to the Finance Minister to withdraw money allocated for specific purposes and/or from the  Consolidated Fund  presents “a  direct challenge to  the  onus  of Parliament to have full control over public finances as protected by Article 148 of the constitution.” That was what made independence of the judiciary unacceptable to this regime and thus had to be ignored with the connivance of the opposition for the Second Reading of the 2013 budget. But, that is definitely not a long term answer for this regime moving into a new phase of executive power.

A Bangladeshi Assistant Professor, Taiabur Rahman of the Department of Development Studies at the University of Dakha, who in late 2004 undertook an extensive study on governance in Sri Lanka and wrote the paper, “Parliamentary Control and Government Accountability in Sri Lanka; the Role of Parliamentary Committees” concluded that “….the formal institutional structure of the political system in  Sri Lanka, appears seriously disadvantaged in checking the unbridled power and authority of the Executive and virtually unable to call the government to account. All the major characteristics of a strong legislature in practise are absent in Sri Lanka and it plays in the hands of the President who monopolises power, even in time of cohabitation. All the major political institutions including parliament (let alone parliamentary committees), the provincial parliaments and the local government units are made captive to the vagaries of the President.” (p/42)

That power of the president is what decides who does what for the regime and the regime has apparently decided, it now needs a free hand in handling the economy including public finances, without any possibility of a judiciary checking its right to do so or its constitutionality. Thus the fate of the CJ, almost foretold as closed, on economics of this regime. An attempt to re invent the State with absolute centralism and political power, creating within it the fissures and fractures of a decaying State.

Fight For CJ Without A “Pro People” Judiciary Helps Rajapaksa

by Kusal Perera

On 20 November (2012) afternoon, a fair gathering of people at the badly neglected Colombo Public Library, gave that old black and white look of an art gallery photograph. Grey haired, bald and elderly men on stage argued against the impeachment now being taken up by the Parliamentary Select Committee (PSC) to decide on charges levelled against the Chief Justice (CJ). The audience, brought together by a  group  of city based trade  unions  for this public  meeting,  looking equally ancient, but was determined the impeachment should be defeated. The speakers argued their case quite well, and proved the impeachment was morally, legally, constitutionally and democratically wrong and should not be allowed to have its passage through parliament. A good case, they established. The meeting had one  very  conspicuous  lapse  though,  to  put  it  mildly.  The  youth,  the  young generation that should take up the fight for the future, was almost absent with only a very negligible presence of women too. The audience was not one of a broad social representation. That added up to a question raised by another from the audience at the conclusion of the meeting. “All this is fine” he said and asked, “What all the arguments and explanations implied is, Rajapaksa would have his way. They never indicated what should be done ?” So the important question is “Critic and analysis is good, but what next ?”

This goes with all what was written to date on the impeachment, including interventions and comments on “FaceBook” and e-mail chains. They were all good and strong arguments to say the impeachment is and attempt to wrongfully remove the incumbent Chief Justice and politically control the judiciary. Yes it is. But it is one that can not be left as a campaign to save the Chief Justice. It has to be a campaign to save the judiciary. It should not stop at shouting hoarse to save the CJ, but go on to demand judicial reforms to have an independent, pro people judiciary. That seems the absent part in all of these segmented campaigns and protests.

The towel has already been thrown in, it looks, with the Rajapaksa regime declared the winner. Not merely because they have a steam rolling majority in parliament, but because the Opposition is clearly compromising on any and everything the regime wants. All decisions so far taken regarding the PSC proceedings has gone the way the regime wants, with the Opposition representation in it, consenting though at times with mild reservations. The time frames set, the refusal to grant the CJ her request for time to present her submissions, refusal by the Speaker and the PSC in accepting the judicial advice to defer PSC sittings till the Supreme Court determines on the petition before it, referred to by the Appeal Court, have all gone the way the Rajapaksa regime decides, with the Opposition timidly agreeing to fall in line with the government majority.

Thus all previous calculations (including my own assessment) on how the PSC impeachment process would get dragged on, at least till March 2013, now seems pretty much miscalculated. Ranil Wickramasinghe who was also initially calculating for long sessions, now goes with the Rajapaksa schedule in wrapping up everything in a month or so. So have the TNA and the JVP represented in the PSC. They end up giving the regime what it wants to do with the PSC without any serious and active dissent that can be seen by the public and boost the pro judiciary campaign outside.

This accommodation of the regime by the Opposition is not only with the PSC. It is how the Opposition actually play politics with this regime. None seem to defy the

Rajapaksas in parliament, even on other important issues. That was the case with the Budget and the Divi Neguma Bill too. The Budget for 2013 was challenged for its provisions in handling public funds and was determined as against the Constitution by the Supreme Court that directed 03 proposals to be amended before the Second Reading is taken up. Neither the UNP leadership as the Opposition Leader, nor the TNA and the JVP, bothered to take that up, when the original budget was up for the Second Reading. Why did not the Opposition refuse to participate in the debate ? They had a social obligation to refuse participation in a budget debate that is not in line with the Constitution. So had the JVP too. But that was not how the Opposition acted.

The UNP leadership and some of their MPs did murmur few things from outside parliament for the media to carry. But not in parliament. In parliament they debated and voted at the Second Reading, allowing the same non amended budget to go through the final reading during the next week or two. So did the JVP that otherwise cries foul over anything by the Rajapaksas. The TNA may have been advised from Delhi, not to throw a spanner in their way, as they are “trying for the umpteenth time” to convince this Rajapaksa regime to agree on a serious devolution package. What ever the  reason(s)  may be, all in  the  Opposition have  agreed to  keep  the parliament functioning, the way this regime wants. In such adverse and frustrating context, the next best thing that should have developed is a strong, independent “people’s movement” that stands for serious judicial reforms. Strong enough to challenge the Opposition’s compromise with this R regime as well. Most unfortunately that potential is also absent in the protests that can be heard. If one maps the class and geographical presence of these protest campaigns to date, geographically it is horribly restricted to the Colombo city. Not even to the Colombo district. The only protests so far were in Hulftsdorf and once at the Public Library hall. A few provincial Bar Associations that met initially and the unanimous resolutions adopted by the Bar Association of SL, are all things of the past. They were any  way  a  membership  gathering  of  a  single  profession  and  not  a  public intervention. Even lawyers in Courts other than those in Hulftsdorf, in Mt. Lavinia, Kaduwela and Gangodawila have no part in any of the campaigns organised by the activists in Hulftsdorf. That leaves all satellite towns around Colombo and the other few major cities, almost oblivion to what’s happening in the Hulftsdorf Hill and within the Diyawanna Sanctuary.

Its class nature is also very apparent with the city upper middle class, dropping their ethnic politics to rally against the impeachment against the CJ. One now sees long time Sinhala campaigners like S.L Gunasekera and pro devolution activists like Jayampathy Wickramaratne together against the impeachment and a learned advisor to the Rajapaksa regime like Gomin Dayasri reluctantly and ambiguously talking against the impeachment. Discussions and statements were all Colombo city centred and by upper middle class personalities. It is clearly the upper middle class urban constituency that has got activated, for it is they who feel the need to have a judiciary independent of politicking. And, they have turned it into the academic exercise, they are more familiar with.

This leaves out the vast majority who should actually get mobilised to have not only an  independent  judiciary,  but  also  an  efficient  and  a  clean  judiciary.  In  2010
November, reading out his 2011 budget speech, President Rajapaksa said, “A prolonged delay in legal disputes is one such cause for poverty. There are approximately 650,000 unsettled legal cases before our judiciary pending justice.” He promised an allocation of 400 million rupees in total to remedy this issue of “pending justice”. He also promised, he would allocate 150 million rupees for 2011 and the Ministry of Justice was to immediately set up 60 new courts with retired Judges to address this issue. What has come of it, is not been discussed even during this budget debate. Thus it is not ONLY an issue of judicial independence that now needs to be taken up. But also that of a clean and an efficient judiciary to serve the people. The plight of those many thousands who daily linger around the Courts, spending their hard earned money, needs to be taken up with that of an independent judiciary. It is definitely a very long wait for justice, if it comes at all and in between that long wait, the ordinary people are also fleeced, not only by touts, but also by some hard bargaining lawyers. The whole system is corrupt and warped. Therefore today, while the need of an independent judiciary is more an upper middle class urban discourse, the majority of the common people would want an efficient and a clean judiciary. The fact is, an independent judiciary is only a fore runner to an efficient and clean judiciary that a country should have.

The impeachment against the CJ therefore allows much space for a more complete discourse  and  a  campaign  for  judicial  reforms  that  should  include  the  slogan “efficient and a clean judiciary”. It is such a slogan that would allow for a broad social support base, but was lost due to this very narrow approach of the city campaigners  and  the  compromising  Opposition.  It  is  not  the  strength  of  this Rajapaksa regime that keeps it afloat, but the supportive winds of the Opposition that leaves it roaming around. It is also the short sighted Sinhala outlook of the urban middle class that kept most what the regime did all this while, justified. Well, there isn’t a decent, intellectual “Left” discourse either to galvanise any futuristic thinking in society for now. That’s what this impeachment is all about.

Courtesy: The Colombo Telegraph