Columns

The admixture of sanctimony and sheer hypocrisy in the condemnation of Sri Lanka’s Constitutional Council (CC) and the 19^th Amendment to the Constitution by President Maithripala Sirisena and former President Mahinda Rajapaksa in Parliament this week is unmistakable.

President Sirisena’s likening of the 19^th Amendment to a ‘legitimate child’ born under his authority who was thereafter deformed and abused (presumably) by his warring erstwhile coalition partner, Prime Minister Ranil Wickremesinghe’s United National Party, is deplorable, both in language and in content.

Focusing on unpalatable truths

The 19^th Amendment is not a ‘legitimate’ or an ‘illegitimate’, (pejorative terms that have gone out of modern legal usage by the way), child. Rather, it is a ‘political child’, created in a moment of extreme constitutional stress. Undoubtedly flawed in various respects, it was a necessary step in moving away from the reprehensible inequities of the 18^th Amendment.

That said, the fact that the 19^th Amendment could not have been a better bulwark to political power despite a conducive environment post January 2015, speaks to many unpalatable truths. First, it testifies to the poverty of the political class which, inclusive of the UNP, did not want a stronger constitutional challenge to its authority through the prism of a stubbornly independent CC having a majority of civil society members in line with its predecessor under the 17^th Amendment. Citation of objections put forward by politicians belonging to the Sri Lanka Freedom Party and affiliates to this proposal does not suffice to excuse the ‘yahapalanaya’ coalition of its responsibility to ensure this, at the time.

Second, this speaks also to the shortsightedness of ‘yahapalanaya’ supporters, seduced by being ‘welcomed back’ to the inner circles of the Government after the long Rajapaksa drought and willing therefore to overlook many warning signals. Quite apart from the content of the 19^th Amendment, it could have been worked in a much more strategic manner, in the minimum, to prevent the current storm that has arisen over the criteria that it uses to recommend individuals to high public office. If a vigilant civil society had demanded and insisted that these standards are observed, perhaps we would not be in this state where the Constitution is subjected to a full frontal attack.

Reasons why we are in this plight

So in these weeks of ceaseless acrimony directed rightfully against a sitting President and a former President for transparently trying to do indirectly (through undermining the Constitution) what they could not do directly (the events of October 26^th 2018), it is very important to remember the reasons as to why we are in this plight presently. For example, it is difficult to ignore the President’s annoyance on the floor of the House regarding the manifest unsuitability of the Inspector General of Police (recommended by the CC to be appointed at the time) to hold office.

That happens to be true and must be conceded as such even though this Presidential criticism may well be an artful device to give legitimacy to an overall attack on appointments to the judiciary and the National Human Rights Commission which must be castigated in the strongest possible terms. While the IGP’s appointment was clearly problematic, the failure of the Government to do anything about his highly erratic conduct in office was even more so.

These are factors that support the cynical argument peddled by the Rajapaksa led ‘pohottuwa’ (flower bud) party that, having the CC in place is of no practical use. As former President Mahinda Rajapaksa proclaimed brazenly a few days ago, the CC cannot be ‘independent’ given that it has politicians as part of its composition. So the final result of this Rajapaksa logic is that, even if a President or Prime Minister appoints with political authority unfettered by a CC, it will be the same as a CC dominated by politicians.

Making sure institutions work

This coordinated pincer movement by both politicians on the CC and the 19^th Amendment is in the context of critical appointments being made to the superior courts, including the potential appointment of the next Chief Justice of Sri Lanka. So we must make no mistake in understanding the deadly seriousness of the political rhetoric that we hear now. These are attempts to reverse the constitutional clock that must be resisted with strength.

However, when ordinary people actually see institutions and/or high public officers malfunctioning or acting to political agendas as the example of the IGP well demonstrates,  it only buttresses such critiques. So apart from issuing flowery press statements or expostulating in Parliament on how magnificent the 19^th Amendment is, it would serve UNP seniors better if they spent more time on the nuts and bolts of making good institutions work.

The fact of the matter is that, there are many things wrong regarding the functioning of seemingly independent constitutional institutions, the tussle between the IGP and the National Police Commission being just one. These ills cannot be cured by a visit to the office of the Speaker like naughty children being summoned to the principal’s office. Calculated institutional reforms are needed.

Illusionary to expect politicians to give up power

But it would be illusionary to think that politicians want institutions to check their power. Our history illustrates that in no uncertain terms. Under the 17^th Amendment, a distinctly more robust Constitutional Council was undermined by far less open hostility. Indeed, the subversion of the constitutional standard was so covert and stealthy that it went virtually unnoticed. At that time, former President Chandrika Kumaratunga who assumed the ‘yahapalanaya’ (good governance) mantle with ease in 2015 to the delight of her cheering supporters, refused to appoint a nominee of the CC then including jurists of no mean repute, as the Chairman to the Elections Commission (EC).

The other new independent National Police Commission (NPC) was hampered at every turn by politicians who took umbrage at its efforts to prevent political transfers of police officers prior to elections. As much as the National Human Rights Commission is being attacked now, it was the NPC that was attacked then. The reason for this was the NPC’s decision to interdict police officers indicted for torture and its forthright interventions into the political command of the Police Department. Astonishingly, government politicians proposed that the IGP should form part of the NPC despite the fact that this would obviously negate its independent character.

These were only precursors to a far more serious attack on the Constitution in the Rajapaksa years. But it is useful to recall that the undermining of the 17^th Amendment took place long before that. That happened by consensus of the political establishment. No party or political leader can shrug off his or her responsibility in regard to the same.

The present fracas unfolding on the 19^th Amendment and the CC is just one more stage act of the same drama.