Columns

As Sri Lanka faces an unexpected constitutional crisis over this week’s ‘interim order’ by a three judge bench of the Supreme Court ‘restraining’ the Inspector General of Police (IGP) from ‘exercising the powers, functions and responsibilities of office’ until the final determination of several fundamental rights challenges, it is not difficult to envisage the Wickremesinghe Presidency and the Government (metaphorically) rubbing their hands in glee over this gift from the gods as it were.

Could there not have been ‘another time,another place?’

The President has reportedly stated that he will abstain from appointing an acting IGP. His refusal is justified on the basis that as he has declared his intent to contest the forthcoming presidential elections, his hands are now tied. As an election candidate, any initiative by him to recommend an acting IGP for approval of the CC which must approve where acting appointments are made for successive periods ‘not exceeding fourteen days’ (Article 41 (C) (2), proviso) may open the door to ‘election petitions’

On their part, election activists, civil society lawyers and the Opposition have proclaimed that the absence of a ‘functioning’ IGP will not impact an eagerly anticipated Presidential Election which the Election Commission has declared, will be held on 21st September 2024. But in the event that refusal persists, the matter is hardly settled. The Elections Commission has taken the defensive position that it will work with the senior police officers entrusted with election supervisory duties until an acting IGP is appointed through due process.

For the moment, a prudent ‘man or woman on the street’ might wonder why ‘another time, another place (as the 1970’s ballad goes) could not have been more opportune for this entirely unexpected ‘interim order’ of the Court that has landed like a proverbial thunderbolt on a frustrated citizenry, struggling at the leash to exercise their vote in a few months? No matter, that exasperated question is now firmly behind us. The political chaos that the order has left in its wake must be dealt with.

To whom does the CC belong?

In that context, a familiar bogey has again raised its head, is the Constitutional Council (CC) part of the executive or the legislature? The Government’s position is beautifully simplistic albeit lacking in basic constitutional logic. In essence, as pronounced by the Prime Minister in the House on Friday, the CC is part of the legislature, Parliament is supreme and the Court cannot question the CC when it approved the recommendation of the President regarding the IGP. But that argument bypasses the fact that the Constitution itself had, in the 17th Amendment when it created the CC, contemplated a situation where decisions of the CC are subjected to fundamental rights petitions under Article 126 and its several subsections.

That was a conciliatory nod to fierce warnings by public spirited advocates at the time that immunity should not be conferred lock, stock and smoking barrel on the CC given our particularly tragic history with Presidential immunity. In fact, that Article was inserted in the exact expectation of a day where a prevailing political regime (or the CC itself) might imaginatively contend that the CC is like the Gods on Olympus, immune from all challenges. That is certainly not the case and the Government must be curtly reminded of that fact.

Indeed, this constitutional article was preserved in the very many amendments that came after the 17th Amendment with that same caution in mind. It is now not for the Government to say otherwise. In an irritated aside, it is also necessary for the President and his Prime Minister/Government to make up its mind about the positions that they articulate. Late last year, the House was torn apart by hot air over the appointment of judges to the Supreme Court which the Government argued (with some reason) had been blocked by a Supreme Court interim order as in the instant case, preventing the CC from exercising its powers of approving recommendations to the apex court.

An orphaned CC at birth

Then, the President held forth with great force saying that the CC was ‘part of the executive.’ Now we see his Prime Minister arguing that the CC is part of the legislature to buttress the Government’s stand that privilege must be conferred on the CC. Perhaps acutely conscious of the obvious contradictions thereto, the President himself has declined to ride into Parliament all guns firing to explain his November 2023 stand, as has been his wont lately. Instead, he seems to prefer a discreet silence.

Earlier, he had claimed that the CC was ‘sabotaging’ the appointment of a new Inspector General of Police (IGP) and judges to the superior courts and proposed to appoint a Parliamentary Select Committee to ‘examine’ the CC’s working. Recoiling to that threat, I pointed out in these column spaces that the CC was conceived in the 17th Amendment as a constitutionally sui generis creature (see, Focus on Rights, ‘The President, the Public Trust and Parliamentary Devilry,’ Sunday November 26, 2023).

Certainly the CC has elements of executive functionality but also counts among its membership, representatives of the legislature. As such, it is not an ‘organ’ or a part of either, contrary to what is opined in some legal quarters. Rather, a ‘sui generis’ CC was born under the 17th Amendment out of an optimistic longing that the executive and the legislature, both far from ideal parents as the case was, would carefully nurture a ‘good governance infant.’

Asking an unanswerable question

That expectation was dashed to smithereens from the outset as the CC was virtually orphaned at birth with both the legislature and the executive collaborating to undermine its working in true conformity to a debased political culture.  Two and a half decades later, the CC remains a shadow of itself with its former civil society majority reduced to a minority, a tenth member still to come to the table and bereft of widespread public acclaim.

Meanwhile both parents are claiming the ill-fated infant as its own when it suits them, not to enhance constitutional governance but to perpetuate political power struggles. So when parliamentarians on both sides of the divide ask as to whether the CC is ‘part of’ the executive or the legislature, that is the very definition of an unanswerable question. What is clear however is that the Government’s conferment of unfettered privilege on the CC is shot through with palpable legal inconsistencies.

This week’s Court’s order came in the wake of the Bench assessing that, ‘a strong prima facie case’ has been established, suggestive of the appointment (of the IGP) being contrary to the applicable provisions of the Constitution. Consequentially, the ‘restraining’ order was an ‘interim’ measure till the final determination of the applications with the next hearing date on 11th November 2024, necessarily past the date of the poll, namely September 21st 2024.

A poll fraught with uncertainty

The fact that the Court had used the term ‘may’ when referring to the President appointing an acting IGP is also cited by the Government in its favour. Perhaps its Ministers (also lawyers) may acquaint themselves with fundamental principles of interpretation where the term ‘may’ is vested with necessary force when a duty is imposed on an authority, including the executive.

That said, there are myriad ways in which the Wickremesinghe Presidency and a Pohottuwa dominated House (who want an election as badly as they want a Biblical plague to be visited upon them), may block the election process using this ground. Other problems leading to ‘election petitions’ as a result thereto, contesting the validity of the election itself, may also arise.

One can only hope that such eventualities, which are not far fetched or hypothetical by any measure, will not arise for discussion at a later date.