Editorial

Whither the Executive Presidency? This has been a long-running serial played out in the political amphitheatre of this country over the years. It is part serious, part comedy; part farce, part drama – and downright tragic.

On Thursday, another attempt was made by possibly well-meaning persons to raise public awareness to the dangers of the Executive Presidency and demand its abolition. Such campaigns cannot be dismissed lightly. President J.R. Jayewardene when he introduced the system said “give it some time” (to see if it works). It is 34 years since and no doubt, time for an honest appraisal.

The problem is that who the proponents and opponents are, depends on which side of the fence they sit at the political helm of affairs in the country.

Most members of the current dispensation, including the President were vocal opponents of the Executive Presidency – when in opposition. President Jayewardene was called a Hitler and Mussolini combined but now, comfortably ensconced in government office, statements like “if not for the Executive Presidency, we would not have won the war” are heard. The government should keep flowers at the statue of President Jayewardene except that there are no statutes of him anywhere. President Chandrika Kumaratunga and her then confidant Justice Minister even fixed a date for its abolition – July 15, 1995 only to teargas and baton charge those who reminded them of that election promise on that date.

Some of those who spoke of the need for its replacement this week, left their party when in opposition to strengthen the hand of the Executive Presidency only to return piqued at the treatment meted out by that same Executive President.
It is true that the Executive President of Sri Lanka is bestowed with too much power. As if what was already given by the Constitution was not enough, the current incumbent of the office arrogated to himself even more powers by throwing out the 17th Amendment to the Constitution (17A) that de-politicised independent institutions like the Judiciary, Police, Elections Department and introduced 18A bringing them under the authority of the President.

An ‘elective dictatorship’ as the Executive Presidency is, can also be exercised through a Prime Ministerial system. Those who recall the 1970-77 era might recall when there was little difference in the way the country was managed. Democracy can be equally crushed by draconian Emergency Regulations for instance, even under a Prime Minister backed by a steamroller majority in Parliament.

The need therefore, is for strong institutions if the Rule of Law, Good Governance and the likes are to thrive within a functional practising democracy – which Sri Lanka cannot claim to be right now. In the absence of such strong and independent institutions whether it is an Executive Presidency or a Prime Minister makes little difference. The LLRC (Lessons Learnt and Reconciliation Commission) report put it succinctly by referring to the extreme politicisation of society and calling for the reinvigoration of these institutions to ensure that government was run by “The Rule of Law and not by the Rule of Men”.

An oft-repeated quote is “for forms of government, let fools contest; that which is best administered is best”. There is some truth to that. Whether this country is well administered is a judgement call that the people will have to make – an informed people, not those kept in the dark as this Government endeavours to do.

Codify Contempt of Court Law

With the focus on the Judiciary these weeks, and multiple challenges to it especially from the political front, there is a need to address a long outstanding issue; the need for a Contempt of Court Law in this country.

Whilst most other countries, including India and Britain, whose legal systems are similar to ours, have opted for a codified law on the subject, Sri Lanka has left the issue to the courts and the judges themselves to determine.

For more than a decade, there has been lobbying for a law that would define the contours or boundaries of contempt. There is no question that there must be protection for the Judiciary from those who try and subvert it. Scandalising court or a refusal to carry out its orders cannot be condoned and the Judiciary must be protected, but so too must legitimate criticism of its orders be acceptable and the conduct of judges be subject to public scrutiny.

Media organisations in particular, argue the need for a law which will protect their sources. In two identical cases heard in two High Courts not long ago, one judge held against an editor for refusing to divulge a source, while in the very next court, a more liberal modernist judge acquitted the editor on the same score. So what is the ultimate law on this?

It is not for the lack of trying to bring in such a law that a Contempt of Court Law has not seen the light of day. From 2002-2004, an all-party Parliamentary Select Committee under the chairmanship of then Opposition MP Lakshman Kadirgamar sat to draft a law but the early dissolution of that Parliament put paid to those efforts. In 2005, the Bar Association came up with a draft law; the Human Rights Commission and the Law Commission also came up with drafts.

A Contempt of Court Law is now part of the Human Rights Action Plan that is before the Justice Ministry. If the Ministry is on the verge of introducing a Sentencing Policy Law to ensure uniformity in sentencing by judges in different courts — to give the same punishment to different offenders for the same offence, then it is logical that the ministry should also bring in legislation that ensures uniformity in contempt proceedings without leaving it entirely to the discretion of individual judges.

While throwing stones at court houses and judges or not carrying out court fiats would constitute prima facie cases of contempt, there is a dire need for the public — and judges — to know what the limits that surround Contempt of Court are.

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