Gota plays a captain’s innings at the crease
Posted on April 18th, 2020

H. L. D. Mahindapala

The sartorial signatures of the three main leaders of recent times  – Mahinda Rajapakse, Ranil Wickremesinghe, and Gotabaya Rajapakse — have escaped the notice of the commentariat. Each one of them has come out sporting three different garments signifying their respective brands of politics. Mahinda Rajapakse displays the most recognisable costume – the white national dress with the kurakkan satakaya of his father thrown round his neck. He is saying that his roots run deep into the soil.  Ranil, of course, sticks stubbornly to his Western attire refusing to concede to anything that smacks of being national”.  He walks around nervously with his hands in the pockets to prevent his trousers from slipping down to his ankles. It depicts the embarrassing plight of the UNP leader: how to keep his trousers up when everything else around him is falling down.  The most plain – and, therefore, the significant — is the shirt and trouser of President Gotabaya without the Rajapakse signature symbol wrapped around his neck. It announces to the world that he is a different kind of Rajapakse. He is messaging emphatically that he has not only his own style of clothing but style of governance as well.

He has opened his innings with calculated strokes signalling clearly that he is not  the run-of-the-mill batsman, either tha-at-tu-fying” defensively, or risking too much with rash flashes of the bat. He whacked the Swiss Embassy spin for a six. He stepped forward and lifted the American underarm ball to go over the head of the American Ambassadress. He left the crude ball lobbed by Rajitha Senaratna severely alone. He didn’t have to do anything with it either. It went on its own, flying past the wicketkeeper all the way to the boundary. In Geneva, he cut the ball nicely to outmanoeuvre the Western umpires and his foreign-funded fielders in the NGOs. Of course, like all state leaders he has been stalled by the corona balls. Even that has been managed by him to prevent any disastrous collapse. The commentators in the box are pleased that his performance so far has been surprisingly sound. Better than expected indeed! They were hoping to stump him if he stepped out of the crease. But his footwork so far has been cautious nearing almost perfection.

They were also hoping to catch him in the slips. And the anti-Rajapakse gang is now howling that they had caught him with a ball that had snicked off his bat. It came  from the Legal end of the  field. The controversy is whether he should have let the ball go and not touched it at all, or followed the precedent set in Lords – the hallowed grounds of this global game. To come down to the nitty-gritty, the controversy is focused on President Gotabaya’s decision to release Staff Sgt. Sunil Ratnayake, overriding the judgement confirmed by two of the highest courts.

This decision is overblown to project President Gotabaya as the ogre preparing the way to establish a dictatorship by undermining the judiciary. The usual mediocrities in the moral mafia are pretending that the President’s decision is an unprecedented political act of a wannabe dictator determined to whittle down the integrity and the independence of the judiciary. The other threadbare argument is that the punishment imposed on Sgt. Rathnayake would stand as a deterrent to others in the battlefields – a bogus claim that has never been proved in any recorded battle fought by human beings. They also argue that releasing Sgt. Rathnayake is not only against all known norms of democratic states but also a blow to the process of reconciliation. 

These are tiresome arguments recycled for political ends by the mythomaniacs in the moral mafia whose bread, butter and whiskey depend solely on dancing to the drum beat of Western masters who have not hesitated to discard, with absolute contempt, all known moralities and universal laws of justice whenever it suits them to pursue their self-interests. Besides, the pretentious political purists tend to go berserk when one branch of the triumvirate in a democratic state – i.e., the legislature, executive and the judiciary —  tries to challenge or override any one of the other two branches. In a sense it is a good sign of a vibrant and healthy democracy.  But it cannot  be pushed to extremes. In the perennial and ineluctable contest between these three branches the rising tensions should not be exploited for cheap political ends. In these confusing times it is the historical precedents set by the Westminster model – the reputed  mother of all parliamentary democracies – that can prevail as a model to the parallel or lesser democracies.

If there is any doubt or suspicion, one solid example from Westminster should suffice to validate President Gotabaya’s action. And there isn’t a better historical precedent than the landmark case of Augustino Pinochet, the head of the Chilean government, who was rated as a despicable political criminal of his time. Gen. Pinochet overthrew the elected government of Salvador Allende, a socialist. And with the backing of US government Pinochet went on a spree of liquidating the leftist dissidents. The sole political objective of the regime was to wipe out all traces of Allende’s socialism. In the process Pinochet earned three new middle names: Persecution. Disappearance. Execution. Chile became the leading terror state in Latin America. Corrupt capitalism triumphed under Pinochet. It was another feather in Henry Kissinger’s anti-communist cap.

But Pinochet’s world turned topsy-turvy the day he stepped into UK for medical treatment. On a charge made by Spain for torturing Spanish citizens he was put under house arrest in UK. Spain requested that Pinochet be extradited. Never in the history of modern international relations has a head of state being arrested by the host nation on behalf of another state. To cut to the chase, the British courts, going up to the House of Lords, the highest judiciary in the land, upheld the decision to extradite Pinochet. But pressure was mounting from the international Right-wing. Two former heads of state, Margaret Thatcher and George H. W. Bush appealed to the British government to release Pinochet. They urged that he  be sent to his homeland and  not to Spain. Thatcher even went to the extent of sending Pinochet a bottle of single malt whiskey with a note saying: Scotch is one  British institution that will never let you down.”

In 2000 all eyes were on Jack Straw, the Foreign Minister, who had taken office boasting that British Foreign policy under him would be run unwaveringly on principles of high morality. Legal scholars were agog as this was a unique case that would make history.  Human rights activist were beside themselves believing  that they had won the day. They were cock-a-hoop believing  that Jack Straw would abide by the decision of the judgement of the House Lords. After all the judicial hierarchy had decided that  Pinochet should be extradited to Spain. But Jack Straw rejected the judgement of the highest courts in the land and freed Pinochet.

What is relevant to President Gotabaya’s case is the key element of the British government dismissing the judgement of its highest court. It has set the precedent for President Gotabaya to act accordingly without being accused of being  dictatorial, or violating the principles of separations of powers, or undermining the authority and dignity of the judiciary. If her Majesty’s Government can dismiss the judgement of her Law Lords – the supreme judicial authority – what justification is there to accuse selectively President Gotabaya who has adopted the same precedent and exercised the identical political power to fulfil the mandate given by the people? Releasing soldiers who defended the nation was a mandate given in the last presidential election. President Gotabaya did no act arbitrarily to pave the way for the establishment of a dictatorship. Jack Straw did not have a mandate to reject a judgment of the courts. For what  it  is worth, President Gotabaya had a mandate from the sovereign people.

Besides, the underlying principle that applies to both cases is the same: under exceptional circumstances the government of the day can decide to overrule a selected decision or two of the judiciary without undermining  the overarching independence of the judiciary.  President Gotabaya is unerringly in line with the practices of the Mother of Parliaments in freeing Sgt. Rathnayake. When is adhering  to a notable precedent  set by the Mother of Parliaments a violation of the principles of parliamentary democracy? Besides, Jack Straw’s decision has  not brought down British democracy or destroyed the independence of the judiciary.

The morality of  it, of course, is a different issue. Critics can argue that Sgt. Rathnayake is the Pinochet of Sri Lanka and both deserve the same punishment for violating human rights. Or both should be judged on the identical moral metrics.  But Pinochet’s case cannot be compared by any rational metric to that of Sgt. Rathnayake. They are two different cases packed with two different circumstances, carrying two different set of moral and political values. For instance, the enormity of the crimes of Pinochet  cannot be compared to the dubious and questionable legal issued that surround the sentencing of Sgt. Rathnayake. The case against Pinochet was cut and dry. There were no issues of questioning the identity, culpability, and responsibility of Gen. Pinochet.  Violence committed in a battlefield by a sergeant in  an isolated incident in which the responsibilities and culpabilities of the accused are questionable cannot be compared to a criminal who had deliberately gone on the rampage to liquidate his opponents on a mass scale throughout his regime (1973 – 1990).

Pinochet’s  was an open and shut case. The Courts did not have to depend on some controversial clause of command  responsibility or collective responsibility to sentence Pinochet. The Law Lords did not have to ferret out an obscure law to sentence Pinochet on a charge of guilt by association. Besides, the evidence that was accepted to sentence Sgt. Rathnayake is open to considerable doubt. In the absence of certain proof the Courts resorted to a legal excuse of fixing his guilt by association.  It is tantamount  to giving a dog bad name and hanging him. Normally, punishment  is meted out  to fit the crime. But Rathnayake’s was sentenced for being a part of a gang who had committed the crime. The charge of guilt by association  is a controversial law. If there is no direct evidence to  prove that he had executed the Tamils then what was his crime? Did he  dig the  graves? Or was he the one who dragged the bodies to the grave? Or was he the one who gave instructions for the execution? If, for instance, he  did  not  commit the crime of killing the victims then is it fair to sentence him  to death for digging the graves? Unlike in the case of Pinochet there are a set of doubts that can justify the exoneration of Sgt. Rathnayake like the others who were with him. Not only the precedent set by the Lords but the doubts surrounding the role of Sgt. Rathnayake are two factors that validates his release.

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