Somapala Gunadheera, in The Sunday Island, 11 November 2012
Misjudgements are anathema to justice. Nevertheless even they may accidentally ensure ‘the greater good of the greater number’ in very exceptional circumstances. The following judgements made by the Supreme Court since 2005 have turned out to be one such instance.
1. Injunction to prevent the Police from further investigating alleged misappropriation of tsunami funds by Mr. Mahinda Rajapaksa (MR)
2. Ruling that President Kumaratunga (PK), steps down from office one year earlier than stipulated
3. Decision that allowed any “cross over” in Parliament to continue as an elected MP, despite his or her political party’s objections
These decisions have been widely criticized with cogent reasons by legal luminaries. Recently there has even been an implied confession on the tenability of the injunction at 1 above. However, my intention is not to go into the legality of these decisions but to reflect on how they changed the course of history of this island.
On the brink of disaster: At the beginning of 2005, the country was facing a precarious situation militarily. The LTTE had fortified itself under the cover of a lopsided truce. The Northern Province was in a vulnerable position with the areas held by the government exposed to imminent attack. Trincomalee was under a virtual siege by land and sea with the harbour within range of the LTTE forces stationed at Foul Point in Sampur. Cadres of Veluppillai Pirabakaran (VP) had penetrated through the eastern coast right down to Ampare with government troops dispersed in the east under grave danger. The rest of the country was going through a nightmare of bomb blasts and air-raids.
The LTTE had orchestrated its southward thrust by obstructing Mavil Aru, the source of irrigation for the colonists of Seruvila. If the blockade succeeded, the settlements under Mavil Aru would have been famished out of their homes. That would have been only the beginning of the end. For the enemy would have definitely continued their thrust right down to Monaragala. With all due respects to CBK’s liberal policies, the General who was in charge of her war machine was not equal to the threat facing the country and it was evident from past debacles that any attempt under his command to forestall VP’s advance would have floundered miserably resulting in the latter being in supreme command of the Eelam map he had set out to achieve. His next step would have been to use his prowess to reduce the rest of the country to a fiefdom.
Life under a Fascist: That conquest would have reversed the roles of the north and the south, placing the south in the same predicament that the north is facing today. VP would be dilly dallying on his promise to New Delhi to implement the Thirteenth Amendment (13A), in the south with various mathematical symbols attached to it. The propaganda blitz blaring from ‘Kovil Trees’ in Velvettiturai would have declared that the Supremo was developing the south on an unprecedented scale and granting all human rights to them, while resisting all efforts by the rapacious international community to intervene. Weerawansams of the north would be staging ‘Satyagrahas’ against the implementation of any version of 13A, as that was sure to break up Eelam. Tired of waiting for the elusive Amendment the south would have been begging for at least a chance to vote at a provincial election.
I am not personally aware of how VP governed his ‘kingdom’. But from all accounts, he was a despot running his domain at his will and pleasure. His immediate family circle lived in exalted luxury. His cohorts received all the kudos while those who opposed him were kidnapped, tortured and eliminated. I do not know whether VP was corrupt but there was no need for corruption as whatever he wanted was his for the asking. As evidenced by what transpired at the end of the fighting, nepotism was the order of the day with VP’s eldest son interfering into all aspects of life in his virtual capacity of heir apparent. Strangely VP’s nepotism does not appear to have included his extended family. His parents and siblings were living their modest lives outside his ‘kingdom’.
If the south was subjugated at the end of the fighting, it would have shared the fate of their northern siblings under a fascist regime, forced to grin and bear its inequities, oppression and torture. In addition, people of the south would have had to bear the bulk of the costs of the despotic dispensation, reduced to the indignity of being second class citizens in their own country. Under VP, northerners might have consoled themselves that their suffering was inevitable under a conflict to regain their birthrights. Placed under VP’s rule the southerners would have been denied even that consolation. And there was no Southern Saviour in sight.
Arrival of a Saviour: Such a pathetic predicament was avoided for the country by MR coming to power at the nick of time. The above developments would have left no Presidency for him to contest if he had to wait for the lawful end of the previous regime. It was the ruling that ended CBK’s term prematurely that enabled MR to beat the clock. Even so, he might not have been qualified to contest the Presidency, if not for the injunction against the investigation into the misuse of tsunami funds. Resisting the LTTE invasion, called for tremendous power which could not have come from a vacillating majority in Parliament. It was the blind eye turned by the judiciary on crossovers that gave an overwhelming two thirds majority to MR buttressing him in power and giving him the confidence to stand against all odds.
It is the above combination of misjudgements that made MR the Man of Destiny. Even his bitterest critics cannot deny that he used that opportunity to the best advantage of the country. When he started the counter-offensive, its failure was generally believed to be a foregone conclusion. Strategists were convinced that VP was invincible. It called for tremendous courage and bravado to stand against that conviction.
MR’s cunning outfoxed the Tiger in his own lair. His scheming cut the ground under VP’s feet and splintered his power base. MR had the rare gift of choosing a winning team. It was the Defence Secretary and the Army Commander chosen by him that resolutely led the campaign to victory. True they were men of excellent calibre but even they would have fought in vain if MR lacked the willpower to stand firm against international pressure at the crucial moment. All in all, the credit for putting an end to a reign of terror in Sri Lanka should fall squarely on MR’s lap.
Relativity: Of course misjudgements are the antithesis of justice. They are abhorrent to the rule of law. But exceptionally they have a utility value that is relative to the public good they generate. In this particular case the misjudgements have helped to integrate a nation under threat of dissolution and thereby changed the course of its history. But that is not the end of the argument. The ultimate assessment of that contribution depends on the merits of the direction to which that course is diverted.
It is yet too early to condone the misjudgements. The quality of the regime created by the change brought about by them, has a direct bearing here. If the misjudgements result in ushering in a just society prioritizing equality, justice, freedom and transparency, history would turn a Nelsonian eye to the aberrations. But if the new regime the change creates happens to push the people from the frying pan to the fire, subjecting them to more acute autocracy and fascist rule, the misjudgements will stand condemned forever.