| by Tisaranee Gunasekara

“If a people is to pass away,
Then will the furies will just send a man
Who, spreading deceit all over, will indoctrinate
The healthy people in crime…”
Friedrich Hölderlin (The Death of Empedokles)

( June 28, 2013, Colombo, Sri Lanka Guardian) Chathurika de Silva, the courageous magistrate who placed the rule of law above the law of the rulers, was abruptly transferred out of Matale.

And with that sudden (though hardly unexpected1) transfer, the hope of a free and fair inquiry into the Matale mass-grave evaporated.

Magistrate de Silva’s transfer was preceded by the equally sudden (and not-unexpected) transfer of Dr. Ajith Jayasena, the JMO in charge of the case, from Matale to Kurunegala.

Forensic Archaeologist Dr. Raj Somadeva has concluded that the Matale skeletons date between 1988 and 1990. Gotabhaya Rajapaksa was the commanding officer of the Matale District from May 1989 to Jan. 1990. Obviously the Rajapaksas would be wary of any impartial inquiry. An unbiased investigation might shed some disconcerting light on Gotabhaya Rajapaksa’s unsavoury past, plus raise some awkward questions about how much Mahinda Rajapaksa, the arch human rights crusader, knew about his brother’s antithetical activities.

The Rajapaksas know how to abort an unwanted issue. They did not transfer the Matale Magistrate or the JMO immediately. Instead they bided-time and pretended to play-along, until media-attention and public-interest reached saturation point. Once other news superseded the mass-grave, they moved.

With the two principled judicial officers out of the way and a presidential commission in place, the path is open for a conclusion favourable to the Rajapaksas2.

The process of subverting justice, the march of impunity began just one-and-a- half-months after the election of President Mahinda Rajapaksa. When five students were murdered in Trincomalee, the regime used a concoction of intimidation, procrastination and bureaucratic-skulduggery to protect the murderers. This became a regular pattern in the next several years, until the Rajapaksas discovered the ‘zero-civilian casualty’ mantra, which automatically transformed every dead Tamil (from infants to geriatrics) into either Tiger-members or Tiger-victims.

Most Sinhalese saw nothing wrong with those perversions, because the victims were Tamils, and an occasional Muslim.

Now the abusive-chickens are roosting in the South.

13th Amendment: A Red Herring?

When it comes to muddying the waters and deflecting attention, the Rajapaksas are peerless.

Take the sudden brouhaha about the 13th Amendment. Ministers for and against the 13th Amendment are bashing each other, publicly. A ‘National Movement for the Abolition of Provincial Councils’ has been formed, by a bunch of Rajapaksa-acolytes; its inaugural meeting will be held on 2nd July.

This week, the SLFP added its voice to the babel; it wants a suitably disembowelled 13th Amendment, a 13th Amendment minus, minus, minus….. President Rajapaksa, in a clear warning to the pro-devolution ministers, said that those who do not agree with the SLFP’s stance are free to depart.

It is safe to assume that none will.

The Rajapaksas can disembowel the 13th Amendment, piecemeal, at any time of their choosing. They did not have such a free-hand before the Impeachment. The Supreme Court, headed by CJ Shirani Bandaranayake, was loath to violate the constitution blatantly. That is why it refused to give a free-ride to the land-grabbing Town and Country Planning (Amendment) Bill3 and the Divineguma Bill. But post-impeachment, the Siblings have a permanent judicial carte blanche; they can turn the 13th Amendment into an empty shell, legally, whenever they want. An acolyte can file a case, demanding that the unanimity clause (which decrees that bills on devolved-subjects need the approval of all provincial councils) be replaced with a majority clause. Is there even a nanogram of doubt that the Mohan Peiris-led Supreme Court will pulverise the unanimity clause the same way the Sarath Silva-led Supreme pulverised the North-Eastern merger?

But this is not the time. The Hambantota Commonwealth is not over and Mahinda Rajapaksa is not yet the Emperor of Commonwealth Nations (in his eyes, and in the paeans of his acolytes). Delhi can still deny him that longed-for glory.

So India must be kept happy. And the Rajapaksas would know that disembowelling the 13th Amendment will make the Congress government very unhappy (especially with national elections scheduled for 2014).

Why start a fight over the 13th Amendment at this most inopportune time, when India has a stick to wield, in defence of devolution?

The Rajapaksas do not want to hold the NPC poll because that is an election they cannot win. The Siblings do not want an opposition-run provincial council, anywhere, even if that opposition is totally Sinhala-Buddhist. The real issue is control. The Rajapaksas will do everything to prevent the creation of a non-Rajapaksa power-centre anywhere in Sri Lanka, even at the cost of alienating the minorities and antagonising India.

The optimum solution is a judicial-postponement of the election; get an acolyte to file a case seeking an injunction and the deed is done.

But that deed must be done in such a way that it does not jeopardise the Hambantota-Commonwealth. India must be hoodwinked into believing that the Rajapaksas were really intent on holding the NPC poll and the postponement was not their will but the will of the judiciary.

That would require some very convincing stage-settings and background-music.

So the SLFP candidates are picked, Daya Master incorporated and Kamalini (the Tiger Women’s Leader) released.

And an artificial furore over the 13th Amendment is created, using the likes of the JHU/the BBS/Wimal Weerawansa. The fate of the 13th Amendment is turned into the ‘issue of the day’. Everyone jumps into the fray. The predictably agitated Indians wield their Commonwealth-stick, predictably. The Rajapaksas appoint another Parliamentary Select Committee.

Delhi relaxes, believing that the 13th Amendment is saved and the NPC election will be held on time.

Then the Sinhala-Buddhist Supremacists succumb to endless and collective fits-of-the-vapours. They scream that the country is about to be divided; they babble that the war-victory will be undermined. Verbal violence reigns and anarchy beckons. The anti-devolution mob demonstrates and agitates; some threaten to fast unto death; others to immolate themselves. Several run to courts and file cases. The Court gives leave to proceed. Dates are set.

And the NPC election is postponed, by the court, until the hearing is concluded.

The Rajapaksas can then tell India, and the world, that they had nothing to do with the postponement; and as a law-abiding government they must obey the judicial ruling. Basil Rajapaksa can go to Delhi, with Lalith Weeratunga in tow, to do the ‘We are the moderates’ act and to whisper that though the postponement is regrettable it has saved the 13th Amendment. An economic deal advantageous to India/Indian businesses (or the promise of one) can be offered as a sweetener.

If that is the planned finale to the latest devolution tragicomedy, will India content herself with issuing ‘a stern warning’, that the 13th Amendment must be untouched and NPC election held as soon as the courts permit? Or will Delhi face up to reality, acknowledge that once the Hambantota-Commonwealth is over, its limited capacity to restrain the Rajapaksas will vanish and tell Colombo that unless the NPC election is held in September, Delhi will publicly ask for a Commonwealth venue-change?


1 Several media outlets reported that the magistrate would be transferred as far back as in mid May; see http://www.srilankamirror.lk/news/7390-judge-hearing-the-matale-mass-grave-case-to-be-transferred

2 President Chandrika Bandaranaike Kumaratunga appointed three presidential commissions to look into several high-profile killings. The Commissions, in consonance with the oft-repeated opinion of their appointing-authority, sought to exonerate the LTTE and the JVP and blame the UNP. The Vijaya Kumaratunga Commission (the leading light of which was Sarath N Silva) found President Premadasa and Minister Ranjan Wijeratne guilty; the Lalith Athulathmudali Commission found President Premadasa and Minister Sirisena Cooray guilty; and the Denzil Kobbekaduwa Commission deemed President Premadasa and General Vijaya Wimalaratne (who died in the blast with Gen. Kobbekaduwa) guilty. Sirisena Cooray was arrested and angry patriots destroyed a statue of Gen. Wimalaratne. That fortunately was the time before the fatal politicisation of the highest judiciary. The pre-Sarath Silva Supreme Court quashed the findings of the Lalith Athulathmudali Commission subsequently (in B Sirisena Cooray vs. Tissa Bandaranaike and two others) and “Justice Ranjith Dheeraratne asked, rhetorically, “…whether the evidence (against Mr. Cooray) was sufficient even to hang a dead rat” (The Sunday Times – 10.1.1999).

3 The Supreme Court determined that the Bill was inconsistent with the constitution. See http://www.ft.lk/2011/12/16/supreme-court-determines-town-country-planning-bill-inconsistent-with-constitution/

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