Cometh the hour

Seven months after the unceremonious sacking of the country’s 43rd Chief Justice, another former Supreme Court Justice assumes political centre stage following a decision by the country’s main Tamil party to field a highly respected jurist and intellectual, native to the Jaffna District as its choice for the first-ever chief minister of the Northern Province at the forthcoming provincial poll.
Former Justice of the country’s highest court, C.V. Wigneswaran, renowned for his courageous positions both on and off the bench, enters the political fray at a crucial juncture. His candidacy will bring to the fore not only the fundamental issues pertaining to national reconciliation and the Tamil struggle for political autonomy at a decisive point in Sri Lanka’s history, it will also elevate the debate about the systematic collapse of the country’s judicial system, a deterioration Justice Wigneswaran warned of on his last day on the bench of the Supreme Court in 2004.Dharisha
The impeachment drama that unfolded late last year and resulted in the removal of Chief Justice Shirani Bandaranayake after a dubious trial by Parliament had the legal fraternity suddenly seeking out figures such as Wigneswaran and likeminded professionals, those who had issued clarion calls about the impending crisis in the judicial arm of the State almost a decade ago, when no one was listening yet.
A vocal critic of the Shirani Bandaranayake impeachment, Justice Wigneswaran told an audience of the legal fraternity, at the convocation of Bar Association of Sri Lanka President Upul Jayasuriya, that the future of the legal profession had never looked so bleak. “We are at the nadir in every aspect of our profession. None so alarming as the systematic institutional erosion,” the retired Supreme Court Judge said then, just two months after Bandaranayake’s unconstitutional sacking.
The impeachment trials
The announcement of Wigneswaran’s candidacy coincided with explosive incidents at the Supreme Court this week, where a special bench of five judges appointed by Chief Justice Mohan Peiris is hearing a plethora of cases pertaining to the Bandaranayake impeachment trials and the appointment of her successor in violation of two rulings by the country’s highest courts.
The appeals and counter appeals for and against the impeachment process came up before the CJ Peiris appointed bench of five judges again on Tuesday, with counsel for the Centre for Policy Alternatives that is suing against the appointment of the new CJ insisting that the bench cannot be appointed by Peiris when he is himself is the sixth respondent in the case.  The CPA, represented by Attorney-at-Law and TNA Parliamentarian M.A. Sumanthiran, argues in its petition that there is no constitutional vacancy for the appointment of Peiris after the Supreme Court and the Court of Appeal ruled that Bandaranayake’s impeachment was legally null and void. The CPA has requested that the Court hears the case in full, with all judges of the Supreme Court presiding, in order to negate the necessity for CJ Peiris to choose a bench to hear cases that relate directly to him and the office he now holds. Sumanthiran is threatening to withdraw from the cases unless the prejudice issues are addressed. The Court is to allow the firebrand attorney to continue making submissions and will not yet rule on the request.
Refusing withdrawal
The Supreme Court on Tuesday (16) also refused to permit four petitioners to withdraw applications made challenging the legality of Standing Order 78A which set up the Parliamentary Select Committee that conducted Bandaranayake’s impeachment trial. The petitioners sought to withdraw their cases since the Supreme Court ruling on the PSC had addressed their grievances and their applications were originally intended to be an intervention in the controversial impeachment proceedings that are now done and dusted.
These cases are interesting because pre-Bandaranayake impeachment, the Attorney General objected to the Court granting the petitions leave to proceed. The same department returned to Court post-impeachment, now insisting that the cases be heard because they are “in the public interest,” without amendments being made to the original petitions to incorporate changes in the situation after Bandaranayake was removed from office.  The Court is not only refusing to allow the petitioners to withdraw as requested by the Attorney General but previously also refused to allow counsel for the petitioners to amend their applications in the impeachment aftermath to include certain crucial factors in the case. These cases will be taken up again on 25 July. Naturally, none of this is accidental.
Volte face
In an astonishing volte face after repeatedly denying the involvement of the armed forces in war-time excesses over the years, the Government recently began to expedite progress on some of the most controversial extra-judicial killings in the country’s recent history and is seeking to address many outstanding accountability issues ahead of a major Commonwealth Summit this November.
The murder of the five young boys in Trincomalee in January 2006 and the deaths of the 17 aid workers in Muttur – both high profile cases that have elicited intense international interest after the conclusion of the war – have been dusted off and virtually non-existent investigations have seen a sudden reawakening. President Mahinda Rajapaksa’s Cabinet last week endorsed a further 53 recommendations put forward by the Lessons Learnt and Reconciliation Commission for implementation by the Government’s National Plan of Action Committee headed by top civil servant, Lalith Weeratunga.
But while all this is a welcome shift, especially as far as the international fraternity is concerned, other ghosts continue to haunt the regime. The flawed January impeachment remains a key area of concern, especially for the Commonwealth, whose Latimer House Principles governing the removal procedure for judges of the upper courts of member states were seen to have been violated during the Rajapaksa regime’s sacking of Bandaranayake.
Commonwealth pressure
A media briefing was held a meeting of the Commonwealth Ministerial Action Group (CMAG) in April where Sri Lanka dodged a diplomatic bullet after India and other friendly countries made eleventh hour interventions to ensure Colombo was kept off the grouping’s main agenda about member states of concern. At the briefing, Commonwealth Secretary General Kamalesh Sharma was to allude to the critical issue.
Reiterating that the Commonwealth was engaging with the Sri Lankan Government on the issue of disciplining judges and their removal and that the process would be “better not in months but in weeks.”“From this exercise, we will be able to make recommendations as to what needs to be done moving forward in order to have those immediate measures, whether systemic or legislative, so that the kind of constitutional crisis which arose earlier and the polarity and the excuse for confrontation never arises again,” the Secretary General said, referring to the changes Colombo needed to make post-impeachment.
Bandaranayake’s unconstitutional impeachment and the ugly confrontations that surrounded it assumes front and centre of the Commonwealth’s pre-CHOGM agenda because the organisation prides itself on fostering healthy constitutional democracies that uphold the separation of powers concept, rule of law and judicial independence. The Bandaranayake sacking has also become the fundamental basis on which influential legal associations of the Commonwealth have called for a shift in the venue of the 2013 CHOGM or a boycott of the summit if it is held in Colombo.
Observing it against the pressure being brought to bear upon the ruling administration by the Commonwealth on the need for Sri Lanka to show progress after it disregarded its Constitution to impeach Shirani Bandaranayake, casts the events unfolding in Supreme Court in better light, especially in terms of the behaviour of the AG’s Department.
Preoccupation persists in certain sections of the regime with having the Supreme Court and Appeals Court rulings that stripped the impeachment process of constitutional legitimacy overturned by fuller benches. Such a reversal would ensure not only that the Bandaranayake sacking is bestowed the veneer of legality but will also firmly entrench her successor to that high office as the country’s ‘de jure’ Chief Justice, legal experts say.
If the Shirani Bandaranayake rulings are reversed, the Government can then silence its critics, especially those in Britain and within the Commonwealth, with its retroactive legal moves to ‘correct’ a flawed process. Naturally, as with all things Commonwealth related, there is a looming November deadline and speed is of the essence.
lead-main-graphic-The-Judge-The-JuryReinforcing TNA stance
The naming of Justice Wigneswaran as its choice for Northern Chief Minister reinforces the position of the Tamil National Alliance, which took a vehement anti-impeachment stance during the drama. TNA Leader R. Sampanthan was one of only two Parliamentarians who served on the Bandaranayake PSC to answer the notice of the courts in the anti-impeachment trials and the Party’s National List MP Sumanthiran continues to function as a leading lawyer in those same cases before the Supreme Court.
In stark contrast to the wishy-washy tactics of the main opposition United National Party, the TNA position was crystal clear and its legislators led by Sampanthan and Sumanthiran articulated that position with eloquence during the impeachment saga. In terms of the rule of law and judicial independence issues, the TNA has decided to champion then, the choice of Wigneswaran is a poignantly strategic one. It is eclipsed only by the monumental significance his candidacy will have for the furtherance of the Tamil cause and if played correctly will cement the Tamil party’s credibility as being truly invested in the cause of national reconciliation.
Already his candidacy has had an impact on the Alliance of Tamil parties led by the ITAK. Over the last week, the party grappled with a choice between the former Supreme Court Judge and the TNA’s own Jaffna District MP Mavai Senathirajah who staked a claim for the nomination. It was an open secret that Wigneswaran was the choice of Sampanthan and his able lieutenant Sumanthiran, both of whom were clearly engaged in ‘big picture’ politics, where grassroots elements within the TNA were still focused on the northern region.  Wigneswaran had already indicated that he would not accept the nomination unless his candidacy was unanimously accepted by the party, sources say. It took five meetings over in as many days to convince the rest of the party that the retired Supreme Court judge was the better option for the controversial job at this point in time.
The candidate
Their rationale was simple. Nobody has greater stakes in the northern election than the TNA.
The Government has adopted a ‘to the devil with you’ attitude towards the northern election, focused instead on the Central and North Western Provinces, even though there is no doubt that as the election nears it will employ its full might to back its own candidates in the fray. It has speculated about fielding individuals such as the EPDP’s Douglas Devananda and the former LTTE Spokesman Daya Master as Chief Ministerial candidates.
Mavai Senathirajah would have been able to hold his own in a regional electoral battle against either of these candidates, especially given how unpopular the EPDP has become in the north post-war. But Sampanthan and Sumanthiran were in search of a ‘grand gesture’ as the TNA prepares to face its most crucial post war election yet. Still fighting to shed its pro-LTTE, pro-separatist baggage, the TNA needed a candidate with truly national and international appeal.
The candidate had to symbolise the spirit and resilience of the Tamil people. He had to be a living reminder of the cultural and intellectual legacy that is the pride of the north. The ability to move with governments both here and abroad and articulate the issues facing the Tamil people and the ongoing battle over power devolution in a credible and intelligent way would be a critical factor in making the choice. Any candidate had to be able to move the discourse on Tamil rights away from the ugly Eelamist debate and demonstrate to the world that the TNA is genuinely concerned with and invested in post-war reconciliation rather than polarisation. Justice Wigneswaran is the living embodiment of each of these things.
Potentially powerful steward
As a judge of the highest court, and a man who has worked himself up the judicial ladder, a multi-linguist and an individual of considerable international stature, it will be difficult to stick Tiger labels on his candidacy and discredit his public record, although there will be valiant attempts to do so. The former Supreme Court Judge is not only a man of strong convictions but also by virtue of his career record an individual with a deep sense of justice and fair play. He is a devolution proponent but within a unitary nation. The fact that Wigneswaran restored unity to a strongly-dissenting TNA by making his acceptance conditional to unanimity within the party bodes well for the kind of political future the Northern Province can aspire to under his stewardship in the event of a TNA victory.
In an interview soon after his retirement from the bench of the Supreme Court, Wigneswaran remarked at how he was often overlooked on politically-sensitive cases, along with the late Justice Mark Fernando. His final remarks from the bench of the highest court were equally telling. “The original courts, during my days gave us independence, room for innovativeness and there was direct relationship with the lawyers, litigants and the court staff. But I wonder whether such independence and freedom are still available. The original court life seems to be more controlled now. Various compulsions seem to pervade the original Judiciary. If we do not mend our ways, the people may have to think of alternative processes to those of the hitherto much cherished judicial process,” he warned.
The remarks, seen as controversial at the time, where nonetheless an early warning of the crisis within the Judiciary as a result of persistent political interference that has descended to the depths almost a decade later, with the country facing a full blown (albeit silent) constitutional crisis following Bandaranayake’s removal.
Major impact
Far more significant of course, will be the impact of Justice Wigneswaran’s candidacy on the future of Tamil politics in the country. When he addressed the BASL Convocation of Attorney-at-Law Upul Jayasuriya in March, Wigneswaran quipped that it had taken the judicial officers and the BASL “eight long years after retirement” to remember him. He said it indicated that the legal profession still appreciates though rather belatedly the values and principles for which he stood for at great inconvenience, when in recent times such values were being watered down or eroded.  The legal fraternity had been defeated in what was possibly its greatest fight having stood steadfastly with Chief Justice Bandaranayake, and at that fateful convocation, the BASL appeared to be seeking out sustenance and inspiration in the impeachment aftermath.
They turned to men like Justice Wigneswaran who had long ago tried to fight lone battles against the same powerful political forces. Choosing him to lead the country’s largest Tamil party in an election that will be key to the future of Tamil political rights and devolution is not too dissimilar. The jury is out there of course. If expediency rules and Wigneswaran succumbs to Tamil nationalist pressure to make his electoral platform a place to reassert positions shrouded in separatist ideology, all will be lost. If on the other hand, the brutal grind of electoral politics do not jade him and he continues to advocate unity instead of polarity, which could resonate with both the north and the south in equal measure, Justice Wigneswaran could well prove to the be the very man for this moment. (Courtesy Daily FT)