Editorial

The Constitutional Council with the former Speaker presiding met this week, notwithstanding the fact that Parliament is locked down, in fact, locked up.

By all accounts, the discussions revolved around the general functioning of the independent Commissions and a vote of confidence passed specifically on the infighting Election Commission what with its chairman being somewhat compromised by seeking personal favours from the Government.

The entire Constitution is now being debated in the public domain everywhere, except in the Supreme Court which sits as the Constitutional Court. That honourable court has agreed to go into the constitutionality of many issues that have been left in a state of ‘animated suspension’. The issues in the public domain range from the Government’s authority to draw funds from the public purse without Parliamentary authority, and the complicated arithmetical calculations on an election date for the next Parliament.

Hair-splitting legal arguments, from the sublime to the ridiculous, have been thrown about dissecting the 1978 Constitution and its Amendments. What is left now is for upright judges of the Supreme Court to make a determination.

It was not long ago that the Supreme Court earned well deserved acclaim, locally and abroad for its unanimous decision that held the ‘palace coup’ of October, 2018 was unconstitutional ordering the status quo-ante to prevail after the country was thrown into near anarchy for 52 days.

Public perception normally is for a Court to be credited for impartiality only when it holds against a Government. In the case of then Chief Justice Neville Samarakoon, it was only when he went against the Government of President J.R. Jayewardene (who appointed him) that he was hailed by the legal profession (which had questioned his appointment) and the country (which had early misgivings) for maintaining the independence and integrity of the Judiciary. History records his legacy as an upright judge.

The 1972 Republican Constitution gave to the Supreme Court the onus responsibility of being the final court. That was one of the last links severed with colonial Britain. No longer was it the Privy Council. Since then, that Court has had its highs and lows, some Chiefs departed with heads held high having faced the wrath of Governments, others in disgrace for bowing to the partisan wishes of Governments. At all times, the citizens, not necessarily governments, expected it to uphold the Constitution and the Rule of Law.

Some who sat at this week’s Constitutional Council meeting have shown their annoyance at its very existence. They have complained what use is it to be an Executive President if the President could not transfer an OIC to a police station, referring to the 17th Amendment (17A) to the Constitution which set up independent Police, Elections, Bribery and Corruption, Audit Commissions and a Constitutional Council that vetted appointments to top posts, including the apex Judiciary.

17A was a sop to the public outcry at the time for the abolition of the Executive Presidency, but it paved the way for de-politicisation of key elements of the administrative, law enforcement and judicial branches.

Then came the notorious 18th Amendment which neutralised all the democratic gains of 17A. The Constitutional Council was replaced by a five member Parliamentary Council that had rubber teeth with no veto powers, and was a mere rubber stamp to what the Executive Presidency wanted implemented.

It was the 19th Amendment (19A) that revisited 17A and restored the Constitutional Council, but even the then President who personally canvassed to get it passed at times gloating over the fact that he had voluntarily shed some of his Executive powers, went on to rue what he had done. Typically, no Executive President will like 19A or a Constitutional Council and its very continuation is in the balance should this Government get its way to amend the Constitution.

One of the matters taken up at this week’s Constitutional Council meeting was the recruitment of 200 investigation officers to the independent Bribery and Corruption Commission (CIABOC). This Commission has been a thorough let-down ever since its inception; first with flawed drafting of the law establishing it, then with infighting and eventually with inaction. It has been a case of ‘all froth and no beer’.

All they have to show are cases against one former Minister, one MP, one Mayor and a bunch of police lower rankers, a school deputy principal, the OIC of the bus stand in Kankesanthurai, a time keeper, a doctor, a Grama Niladhari and former General Managers of Railways, and the CWE. The big fish are all swimming free — on bail, for high level corruption and mega white collar crimes not on charges filed by the CIABOC but by either the Police or the Attorney General.

It would be funny, if it were not so tragic a farce to see these crooks evade justice while watching well known rogue ex-MPs laughing their way in and out of the CIABOC office with files against other rogue ex-MPs. It’s nothing but a circus. An ex-Minister currently in hot water over a statement made at a media conference had the audacity not to even appear before the Commission when asked to do so. And the Commission just stood by and watched helplessly.

Like COVID-19 being a pandemic, bribery and corruption are endemic in Sri Lanka. Even the curfew and the virus are being exploited by not just the cop on the street to make a buck but also the Health Ministry and Road Development Authority with questionable tenders that this newspaper has reported in recent weeks.

Bribery and corruption are part and parcel of the Sri Lankan culture now with no real political will to stamp those twin evils out. In its last annual report the CIABOC itself refers to archaic laws, the lack of financial support and reform till 2015. The highest profile public official presently brought to court by the CIABOC is the Chief of Staff of the former President.

Everything is a deal at Government level and even recruiting 1000 investigation officers is not going to change anything unless there is a change of approach from the very top of the Administration.