Sri Lanka: Is Delhi Dumb?

Guest Column: Dr Kumar David

Dumb is used to describe a person who is bereft of brains, and of course its literal meaning is to be deprived of the faculty of verbal articulation. Not many people fit both definitions at the same time, but the Government in Delhi has managed a Double First! The international community (IC) has expressed itself in no uncertain terms and the governments of the United States, UK, Canada, and even Australia in low key because of other sensitivities, International Commission of Jurists, UNHCR, International Crisis Group, Asian Human Rights Association, Bar Associations of several countries including UK and even Indian newspaper leader writers. There has been universal condemnation and expressions of shock at the flagrant violation of the constitution, an unheard of kangaroo-trial of a Chief Justice (CJ), a witch-hunt, and finally a lynching by Executive President Mahinda Rajapakse and the sycophant parliament that kneels before him. Through it all Delhi has remained brain dead and voiceless!

The common explanation is that India has enough on its plate both internally and with Pakistan and China that is does not want anymore and does not wish to intervene in the internal affairs of a neighbour. This is unacceptable when matters go so much out of hand that the fabric of democracy is ripped and freedom of life and liberty of the people of Lanka imperilled. Don’t take my word for it; here are abbreviated extracts from what an international body located in Geneva, the Office of the UN High Commissioner for Human Rights, with no particular axe to grind on behalf of CJ Shirani Bandaranayke, stated on 18 January.

“The removal of the Chief Justice through a flawed process is gross interference in the independence of the judiciary and a calamitous setback for the rule of law in Sri Lanka. Chief Justice Shirani Bandaranayke was served notice of her dismissal and removed from her chambers and official residence on 15 January, in spite of a Supreme Court ruling that the parliamentary procedure to remove her violated the Constitution. Sri Lanka has a long history of abuse of executive power, and this latest step appears to strip away one of the last and most fundamental of the independent checks and balances."

The jurist sworn in by the President as the new Chief Justice on 15 January, the former Attorney-General and Legal Advisor to the Cabinet, Mr. Mohan Peiris, has been at the forefront of a number of government delegations to Geneva in recent years to vigorously defend the Sri Lankan government’s position before the Human Rights Council and other human rights mechanisms. This raises obvious concerns about his independence and impartiality, especially when handling allegations of serious human rights violations by the authorities.

Just this morning we have received alarming reports from the Independent Bar of Sri Lanka of a series of death threats, acts of intimidation and even a couple of reported murder attempts against lawyers who have been supporting Chief Justice Bandaranayke, and the rulings of the Supreme Court and Court of Appeal on her case”. END QUOTE.

And this is by no means the strongest statement made by international commentators; it seems that the Government of Canada has decided to boycott the Commonwealth Heads meeting scheduled for late this year in Lanka and has been backed by the Canadian Bar Association in the decision.

It would be too repetitive to summarise what has happened in the last four months or to add to the avalanche of criticism. Indian readers will find a good cross section of views and comments and a ball-by-ball commentary of events on the Colombo Telegraph website (www.colombotelegraph.com/). Those who do not have time to go to original sources must take my word for it; flagrant trampling underfoot of the constitution, a rushed, botched “trial” by a parliamentary select committee that violated the norms of natural justice, and a comedy in parliament where a government Minister (Vasudeva Nanayakkara, MP) even shouted “We have told the judiciary to go to hell.”

And why did Rajapakse fling the Chief Justice out? The reason is that when the Divineguma Bill came to the Supreme Court for determination of its constitutionality, a three judge bench presided over by the CJ decided that it was inconsistent with the constitution and would need a 2/3 majority for passage. I discussed the Bill (now enacted) in this column on 26 October 2012 (“Queer happenings in Serendib”; Paper 5265) and pointed out that thereafter 64% of the budget of the Sri Lankan government is controlled by departments and/or ministries under three of the siblings (Mahinda, Basil and Gothabaya Rajapakse). The fourth sibling Chamal Rajapakse, parliamentary speaker, steered the impeachment through the House. His Master’s Voice cabinet ministers have now been instructed to tout his name as the next Prime Minister. Even a hat-trick is not enough for these power gluttons; they want all four top-order slots.

However, these were not the grounds on which the Supreme Court held that the Bill violated the constitution. That was because it attenuated the powers of the Provincial Councils and infringed on the Thirteenth Amendment. This is a matter that should interest India, but does not. In a rather chronic David and Goliath act, it is Delhi that has become the vassal of Colombo. The latter can do no wrong in Delhi’s eyes. My guess is that India is anxious about Colombo because the latter may reveal information about Delhi’s aid to Sri Lanka in the 2007-09 civil war that will destroy the Congress in the Tamil Nadu electorate. Otherwise there is no adequate explanation for India’s deaf and blind stance, complementing its dumbness.

A worst case scenario

Sri Lanka, god forbid, seems close to a worst case scenario; a new constitution entrenching the worst elements of autocracy, media control, infringement of political freedoms and, I don’t know how they are going to formulate it, but something equivalent to life-presidency for Mahinda Rajapakse. Every few days there is a “leak” of government “thinking”, meaning the public is being softened for what is coming. It has “leaked” that the tenure of the current parliament, due to expire in 2016, will be extended to 2023; it has “leaked” that the division of powers between the Executive, Legislature and Judiciary is not well arranged and should be “rationalised” – meaning the now powerful Executive is to be given dictatorial powers; it has “leaked” that the lower judiciary (magistrates) will no longer be under the control of the Judicial Services Commission but under the president, and so on. I do hope foreign readers will not take it as scare mongering when I say a truly alarming situation may be taking shape.

The regime is crafty and will capitalise on unpopularity and antipathy to the current constitution (the JR Jayewardene, 1978 Constitution) to sell its repugnant alternative. “Why, all of you rejected the JR Constitution and now when we bring you a shining new one, you childishly reject it!” That is the cunning trick that will be used to catch democratic critics with their pants down. It seems that this regime will go all the way to provoking an uprising, and counts it can crush it by force. It is confident that a Lankan Spring, were it to come, can be turned to winter on the barrel of a gun.

The international community, unfazed by Delhi’s truancy, should do all it can to aid the people of Lanka preserve what they have left of 60 years of albeit imperfect democracy before it is shackled further.