What Will Happen If We Fail To Resist The Juggernaut Of Absolutism And Lawlessness?

By Tisaranee Gunasekara –October 13, 2012

“Terrorist – one who favours or uses terror-inspiring methods of governing or of coercing government or community.” -The Oxford Dictionary

The attack on the Secretary of the Judicial Service Commission (JSC) is an act of terrorism. Not all terrorists lurk in the shadows, hiding from the authorities. Some terrorists are the authorities. An insatiable appetite for absolute power/total control is a quality common to state and non-state terrorists. Both varieties (from Chancellor Hitler to Tiger Leader Pirapaharan) use ‘exemplary terror’ to frighten opponents into mindless compliance.

The attack on Manjula Tillekaratne was an act of ‘exemplary terror’. It was committed in the open, for the world to see; its aim was not just to punish a recalcitrant JSC Secretary but also to teach the Judiciary a lesson in obedience and demonstrate to the public the high costs of resistance.

Terrorists cannot be appeased. Compliance and silence merely embolden them into committing ever more heinous crimes. The response to the attack on the JSC Secretary must be strong and unequivocal; it must also be societal and not merely judicial. If the judiciary and the civil society fail to stand together, in protest against this latest outrage, and in defence of judicial independence, terror acts will not cease. Terror-practitioners will gain strength from our weakness. And no one will be safe, from the lowliest farmer to the highest judge, from outspoken media-personnel to pro-establishment military men, from the most radical worker or student to the most conservative businessman or professional.

During his interrogation by the Nazis, German Jurist Hans von Dohnanyi identified ‘arbitrariness in matters of law’ as the primary reason for his courageous resistance to Hitler. Ancient Lankans knew that ‘arbitrariness in matters of law’ is coeval with rampant injustice, as evidenced by the folklore about King Kekille. Kekille was not a historical person but a historical phenomenon, a symbol of the unbreakable nexus between arbitrary rule and lawlessness. Modern Lankans can forget that age-old wisdom only at their own cost.

President Rajapaksa has ordered a police investigation into the attack on the JSC Secretary. President Rajapaksa ordered a police investigation when Lasantha Wickrematunge was murdered. Three and a half years and three police teams later, the killers remain free and justice is not done.

Lankan police have an excellent track record in solving non-political crimes. Lankan police fail to ‘catch their man’ only when their man enjoys political patronage (a la Malaka Silva) or is a politician (a la Duminda Silva). When a Buddhist monk was killed in Kotte, the police cracked the case in an amazingly short time, because it was a non-political crime. But in Kahawatte the police floundered even as bodies piled up, because a powerful local politico reportedly masterminded the killings.
That political/non-political distinction makes all the difference between police competence and incompetence.
The manner in which the police investigate the attack on Mr. Tillekaratne would thus be revealing. If this is an ordinary crime, the police will get their men, fast. If this is a political crime, the police will meander endlessly. Either no one will be caught; or the wrong men will be apprehended, to be released once the attack is old news.

In Sri Lanka crime is rife. Most ordinary crimes are secret crimes because most ordinary criminals fear the law. Political crimes are often committed in the open because the perpetrators – or their puppet-masters – are above the law. Manjula Tillekaratne’s attackers struck in broad daylight and in public, just as Lasantha Wickrematunge’s did. That modus operandi is indicative of a sense of power and of impunity alien to ordinary criminals.

The political conjuncture in which the attack happened is characterised by a budding conflict between the Executive and the Judiciary. The physical attack was preceded by a well-orchestrated campaign to vilify Mr. Tillekaratne as an upstart, an abuser of power and of female magistrates. (Incidentally, will there be an attempt to blame the attack on an outraged parent?).

The precise timing of the attack is also thought-provoking. Cricket is the opium of Lankan masses and the attack happened on the day of a critical match. Had Lanka won the T20 title, the resultant euphoria would have made the attack on the JSC Secretary seem like minutely small change.

Three years after the victorious conclusion of the war, the largest chunk of national wealth continues to be consumed by the Ministry of Defence and Urban Development (the title itself is symbolic of the galloping militarization besetting Sri Lanka). In 2013, this allocation will increase by a huge 25.9%. In this security-obsessed country, not even a top judicial official is secure. Who is the Ministry of Defence defending?

Subjecting the State

Checks and balances are a Rajapaksa anathema. The regime is reportedly planning to introduce new laws to disempower the Auditor General. According to Treasury Secretary, the existing financial regulations must be replaced because they create a paper-trail and give “…plenty of ammunition for the Auditor General to go through a check list and say everything is bad and project that there is bad governance in the country” (The Island – 9.10.2012). So that is how the Rajapaksas plan to achieve good governance: not by eliminating bad practices but by making it legally impossible for the Auditor General to investigate or critique bad practices!

The Treasury Secretary opines that new regulations are needed “to give the public officials freedom and the capacity to deliver the demands and expectations of the people” ibid). President Rajapaksa states that “Acts which do not serve any practical purpose should not be allowed to get in the way of the government’s development initiatives…” (Daily Mirror – 8.10.2012). Is the regime planning a ‘legal revolution’ to annihilate all checks and balances and bestow untrammelled power on the Rajapaksas and their cohorts? Will the end be an Orwellian state in which bad is good, dishonest is honest and false is true?

This is what the Nazis called Gleichschaltung: turning state and society into a preserve and an extension of Herr Hitler and his terrorist-cohorts. And the Judiciary stands in the way, as was evident from its role vis-à-vis the Divi Neguma Bill.
Last week, President Rajapaksa claimed that the opponents of the Divi Neguma Bill (and other similar measures) are trying to achieve what the Tigers could not in 30 years of war. And one thought the Tigers fought to divide Sri Lanka and set up a state of Eelam!

Is the President equating the opposition to the Divi Neguma Bill (which will give Basil Rajapaksa a department worth Rs. 80 billion plus an anti-transparency clause) with aiding separatism? Is he, by extension, claiming that all opponents of the Divi Neguma Bill, including the Judiciary, are traitors? Is this an indication that the full force of Rajapaksa-power will be used against all those who impede the Rajapaksa-way?

Winston Churchill described the Munich Accord as the ‘first foretaste of a bitter cup’. The attack on the JSC Secretary is a foretaste of the bitter cup, which awaits us if we fail to resist the Juggernaut of absolutism and lawlessness. That necessary battle is the inescapable duty of all those who want to live as citizens in a democracy rather than become subjects of an ersatz royalty.