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A response to Javid Yusuf’s criticism of 20A
This is in response to Mr Javid Yusuf’s (JY) article titled “All’s not well in the public service after the 20A” (The Sunday Times of September 19).
It is JY’s opinion that with an all-powerful individual at the top of the government, in the form of an Executive President, it was inevitable that various institutions of governance would be weakened. He claims that with politicisation at all levels taking root, professionalism in governance has taken a back seat. According to him, the weakening of the public service, including police, has resulted in disastrous consequences over the years. He attempts to justify his argument by stating that the Easter Sunday Attack took place as the police failed to take preventive action without orders from the top, in spite of having adequate intelligence regarding the impending attack.
The essence of JY’s argument is that with the 19th Amendment to the Constitution (19A) several independent commissions began to function giving police and the public service the strength to execute their duties independently; but the disastrous 20th Amendment (20 A) again snuffed out any hope of these institutions functioning independently.
The facts of the case, however, are that the Easter Sunday attack took place when 19A was in full force, while the Police Commission and the police were supposedly executing their duties “independently”. To refresh JY’s memory, 19A was passed in Parliament on April 28, 2015. The Easter Attack took place on April 21, 2019. Thus, 19A had been in effect for four years at the time when the atrocity took place. The 20th Amendment, which JY finds fault with, was passed in Parliament on October 22, 2020 — one and half years after the dastardly Easter Attack.
This attack could and should have been prevented. We not only had foreign intelligence of the attack with almost pinpoint accuracy. But the State Intelligence Service (SIS) also warned of Zaharan’s violent behaviour and requested the police to arrest him. This warning was made by the SIS in 2018. There were eight incidents connected to this extremist prior to the Easter Attack.
The unfortunate truth is, this Police Commission, independent and free from “political influence”, did nothing to prevent the Easter Attack or to hold those officers who failed in their duties responsible.
The relevant police officers refused to act on the intelligence provided by either the SIS or foreign intelligence because they were under the grip of political leaders, who were more concerned about the Muslim minority votes than about national security. Although the Police Commission and the police were supposed to be independent, they were unable to act independently. Then what is the purpose of 19A and independent commissions?
It was not only the Police Commission that failed to live up to its stated expectations. The questionable conduct of Prof. Rathnajeevan Hoole, challenged the very integrity of the Election Commission. JY and readers may recall that Prof. Hoole, who held a prestigious seat in the three-member Election Commission, on one occasion filed a petition in the Supreme Courts against holding elections. He also openly appealed to the public to refrain from their vote to a presidential candidate from a legitimate political party. Although such a behavior was not accepted by a member of an independent commission, there was no attempt by the CC to remove him from the Commission.
Even the conduct of the “independent” Judicial Commission (JC) was questionable. When the Yahapalana government co-sponsored the UNHRC Resolution 30/1 in 2015 the silence of the JC was deafening. This UNHRC Resolution called for the setting up of a hybrid court comprising foreign judges and prosecutors although such a move was a blatant violation of the constitution. Also it implied that our judges are not trustworthy or capable of delivering justice. This was an insult on our entire judiciary. Yet the JC did not object to the hybrid court.
Even when a UN special rapporteur reported that our judiciary, in giving verdicts, did what the government wanted in order to secure a good post after retirement, the JC remained silent. Whether a country needs such a JC that allows our judiciary to be thus ridiculed without raising a word of objection is hardly a question.
In violation of the Constitution and the penal code, Yahapalana Government formed the Financial Crimes Investigation Division and the Anti-Corruption Committee. Yet none of the relevant independent commissions objected. If the objective of the CC and its commissions was not upholding the Constitution, then what was their purpose?
The overall conduct proves that the commissions brought on by 19A were not free from political interference. It is obvious that these commissions were politicised by not only the political masters but also the very members entrusted to free State institutions from politicisation. When a commission failed in its duty to uphold its credibility, there was no provision to hold that commission responsible for its dereliction. The motive of the CC in itself was questionable. Therefore, it is a futile exercise to canvass the CC or its commissions as entities that promoted independence or professionalism of State institutions.
The Executive President is responsible for the security of the public as per the Constitution. The security is ensured by the police. Even though the President is elected by the majority of the people and acts on behalf of the people, 19A striped the President the executive powers to make appointments to important positions, including the IGP. Instead, this power was given to the Constitutional Council (CC), where the majority of the votes were in the hands of the PM and the Opposition Leader. Hence the power of the Executive President, appointed by the majority of the people, in appointing the personnel for high posts, was transferred to two MPs representing two districts! Isn’t it hilarious or an insult to the sovereign right of the people?
The Tamil National Alliance — the one time political proxy of the LTTE — only had 16 seats in Parliament at the time. These 16 seats represented districts from the Northern and Eastern provinces and were won due to an exclusive Tamil vote base. In contrast, the Joint Opposition led by Mr Mahinda Rajapaksa held more than 55 seats in Parliament representing a diverse community living in eight of the nine provinces. In this context, the very appointment of Mr Sampanthan as the Opposition Leader was a dubious act. None of the relevant so-called independent commissions objected.
Until December 2018, Mr Sampanthan held the post of the Opposition Leader. Yet, during the three years as Opposition Leader, neither he nor his alliance questioned the Yahapalana Government on its mismanagement or lack of transparency. On the other hand, Mr Sampanthan must be the only Opposition Leader of a democratic government to appeal to a neighbouring and more powerful nation as India to protect the government in power. The reader should be able to imagine the situation with Ranil Wickremesinghe as Prime Minister and his “supporter” Mr. Sampanthan as Opposition Leader having full control in CC!
To the discerning mind, it is obvious that 19A was simply a ploy to get executive power into the hands of those political entities who could not gain it democratically. The true objective of 19A was to reduce President Sirisena to a mere figurehead. The consequences of this estrangement were tragic. President Sirisena refused to tolerate Mr Wickremesinghe’s company.
Thus, both Mr Wickremesinghe and the then Minister of Law and Order Sagala Rathnayaka (a close political ally of Mr Wickremesinghe) were not invited to Security Council meetings. They too did not raise objections in Parliament. As noted above, their concern for minority votes could have overridden that of national security. Instead of professionalism, 19A promoted petty politics. RW washed his hands of from the responsibility of Easter Sunday Attack stating that he was never invited to the security council.
We defeated the most ruthless terrorist organisation in the world because we had a committed leader, Mr Mahinda Rajapaksa, as the Executive President. It is true that we had four executive presidents before MR. However, none of them had the will to withstand the external pressure that advocated a political settlement. No one in his or her correct sense could imagine that we could have won the war against terrorism with only the CC and its independent commissions. If so in all probability we would either be still fighting a ruthless terrorist organisation or the LTTE would then be singing its national anthem in a fascist exclusive “homeland” in the North and East. As for the Easter Attack, the proof is in the pudding.
Furthermore, neither the CC nor any of its commissions questioned much less arrest the Yahapalana Government’s sudden and inexplicable splurge on foreign loans soon after the humiliating defeat it suffered at the local elections held in February 2018. It appears that after foreseeing a change in government in the near future the Yahapalana Government attempted to engulf the country in foreign debts so that the country would be ungovernable to a future government. A CC that failed to prevent a government over such political misbehaviour is a pathetic one indeed.
JY finds fault with the transfer of CID officers who were investigating the Easter Sunday attack. He also mentions the transfer of a number of officers who were investigating the 100 kilos of explosives and detonators found hidden in Wanathawilluwa. This large haul of explosives, arms and ammo were discovered few weeks before the Easter Attack. Just five days before the attack, the investigators found the charred remains of a motorcycle from an explosion.
They correctly deduced that this was only a dry run. Yet, they could not connect the dots between the evidence at hand and the foreign intelligence received to prevent the Easter Attack that claimed the lives of nearly 300 and wounded nearly twice that number. These investigators and their superiors dismissed the warnings from a credible intelligence source because they were not “independent”.
The readers would agree that we cannot keep the same officers who thus miserably failed to arrest these extremists and prevent this atrocity on this investigation any further. Even when the two policemen were killed in Vavunathivu by Zaharan’s men, without proper investigations or due process they jumped to the erroneous conclusion that this was the work of the LTTE. Some of the suicide cardres who took part in the Easter Attack had been previously arrested, but released. If such officers continue to hold office and be part of the investigations we will not have the guarantee that they would not attempt to secure their interest first.
The new team of CID officers who relieved them have since then arrested 108 new suspects – including some who were arrested before and released. The new team have analysed 110,000 telephone calls, a large number of scientific, technical and circumstantial evidence; filed 23,700 charges against main suspects and handed over eight complete files pertaining to eight incidents to the AG. This was done in a record time of less than three years compared to the time taken to file cases for other terrorist attacks experienced by our country.
I agree with JY that we should have a strong public service. As he observes, in India, irrespective of the government in power, the bureaucracy stands firm and the policies hardly change.
However, for a developing country such as ours, the predominant need are public service officers who take initiatives and decisions in the interest of the country and the people without sitting on the Establishment code and various other circulars.
Some of our bureaucrats refuse to budge even an inch from what is on paper, thereby creating huge delays culminating in heavy losses to the country. As per the book they may be right but what use of it if service is not rendered. We must ask ourselves as to the difference between such senior officers drawing large salaries and a Chief Clerk thorough with EC and circulars who can do the same thing.
It is unfortunate to observe that some of the professionals keep resigning. The more important point for citizens is not the number or rate of individuals who resign from government posts but the Administration’s ability to deliver on its pledges. The Government is not beholden to protect or ensure an individual’s position or privileges. The politician’s responsibility is to ensure that these officers, especially in high positions, render a service to country and people without any undue interferences. However during President Ranasinghe Premadasa’s time it was widely believed that public officers were too scared to tender their resignations. At least today our professionals have that “freedom” under the current leadership, which should be appreciated.
With due respect to JY for his opinion, I must point out that it is an erroneous one. We can have all the constitutional safeguards in the world, but at the end of the day professionalism is governed by the individual’s commitment. The Yahapalana Government and its half-baked 19A did not give priority to the country’s interest and that was their downfall.
One may find fault with the present 20A. That is the prerogative of a citizen in this country. The focus, however, needs to be in the performance of an administration. In that context, we as a country are still standing and we have hope that a better day for our country will dawn soon.
Those like Mr Yusuf, who are passionate advocates of professionalism, must also be professional and not political in their analysis. Interpretation may depend on the beholder, but facts are stubborn.