Focus on Rights

Where, (Or what), exactly is our law?
The predicament that Sri Lanka is facing, where the law as well as the institutions that administer it, (at certain levels), are taken sweepingly at nought by those leading this country, is indeed severe. Prior to the April general elections, (where the people will effectively have very little choice in whom they should vote for, given the mutually problematic functioning of the two major parties during these past two years), we have some very surreal examples of this basic dysfunction.

Last week, this column wrote about the marginally improved legal context within which the April elections are due to be held as contrasted to the 2001 December general elections. In the first instance, the 17th Amendment, defective though it continues to be in several of its provisions, did change the status quo for the better. Ideally, an Elections Commission, appointed by the president on the recommendations of the Constitutional Council should have thereafter come into being. However, this did not happen due to the appointing authority (President Chandrika Kumaratunga) and the recommendatory body (the Constitutional Council) being deadlocked over one nominee, for over a year. In the meantime, the holding of the April election, (which the people did not want and assuredly did not need), was announced by President Kumaratunga.

It is perhaps, only in a country like Sri Lanka which is fundamentally in crisis as far as the reality of democratic governance, (as opposed to its theory), is concerned, that such a deadlock can continue with apparent unconcern, with both bodies not being recalled to a sense of their constitutional obligations for so long. The Elections Commission was, after all, contemplated by a constitutional amendment passed during the brief joining of the People's Alliance and the Janatha Vimukthi Peramuna (JVP) in late 2001, just prior to the elections that year. What lobbying has the JVP engaged in, in this regard, to ensure that the provisions of a constitutional amendment, (the ownership of which it has long made proud claims to), have been fulfilled? On the contrary, on this issue (as indeed, on other issues including most notably, the judiciary), the JVP has not taken long to expose its drive for power at the expense of its professed commitment to provide an alternative to the two main political parties.

And for that matter, one may well, indeed, ask as to why the United National Front remained silent in reference to this impasse between the Constitutional Council and President Kumaratunga, excepting brief comments made by government spokesmen from time to time. The disinterest that all parties displayed on this issue since the 17th Amendment was enacted, is a good reflection of the total collapse of our political leadership across the line. This is eminently logical. What need for independent Commissions when all one wants is, obscenely enough, to capture - and keep power, the one objective common to all our parties? The inefficacy of civil society in this respect, need not be peculiarly highlighted either. And what also, of the Constitutional Council itself? Are we to assume, that apart from the initial recommendations made to the President, one of which was rejected, no further efforts were made by the Council, to resolve the matter, despite its serious consequences? The 17th Amendment being woefully shortsighted in not providing for the manner in which such a deadlock could be resolved, provides only little excuse in this regard.

Thus, then our unconcern for constitutional obligations. Should we then, be surprised that, as recently evidenced, the Elections Commissioner himself did not adequately know the law in respect of which he is supposed to administer the April elections? Bizarrely, his complaints made this Thursday that enabling laws had not been passed in respect of his ability to appoint a Competent Authority for an errant state electronic media, were in ignorance of the fact that Parliament had passed the Competent Authority (Powers and Functions Act, No 3 of 2002, in March of that year, precisely for that purpose.

Meanwhile, the effective utilisation of the 17th Amendment and enabling Act, No 3 of 2002 against a defaulting SLBC and SLRC, exists quite independently from the noticeable lack of sympathy that one feels in regard to the complaints of the United National Front that the state media is propagandist in its coverage, given its total failure to broadbase the state print media during its two years in government or to depart from the usual practice of appointing political supporters to head the state media institutions.

Then again, we have a brewing crisis over police transfers ahead of the elections, the authority of which is vested in the Police Commission, again appointed under the 17th Amendment. Even more bizarrely, Saturdays' daily newspapers reported that the Chairman of the Police Commission had been summoned to the President's House on Friday and asked as to why the transfers sought by the IGP, had not been effected. If these reports are un-contradicted, testifying to the fact that such pressuring tactics had been employed by President Kumaratunga, (perhaps as an extra constitutional adjunct to her claiming the power to extend the term of the IGP without reference to the Constitutional Council?), should this be allowed to pass without comment? What are we reduced to if the law and the Constitution are being made a mockery of, in such a blatant manner?

Similar concerns apply to the recent Presidential directives that no recruitments and promotions should be made to the public sector pending the election and that all pre-election appointments would be unlawful. Under the 17th Amendment, the President has no authority to come to a unilateral decision in this regard, given that the appointment, promotion, transfer, disciplinary control and dismissal of public officers is vested in the Public Service Commission while the Cabinet of Ministers exercises similar powers in reference to Head of Departments and, as a whole, provides for and determines all matters of policy relating to public officers. This usurpation of authority has also passed largely unchallenged.

Where is our sense of outrage with regard to these issues, given their constitutional context? Where, (or what), exactly is our law? In a context moreover, where unresolved allegations of serious politicisation continue to exist against the sitting Chief Justice in this country, this question has even greater justification. Given the cumulative effect of the above, it may be opportune that we abolish our constitutional structures into and devise new rules of political parties by which we may be governed. Perhaps, even the latter would be preferable in comparison to the obscene farce that is taking place now in the name of democratic governance.

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