Giving ear to the public roar in January 2015

• Sunday, March 29, 2015

Admitting that the passionate ‘yahapalanaya’ breast-beating of the Maithri campaign in the run-up to the January 2015 presidential poll was nothing more than an election slogan has become inevitable in the wake of the recent formation of a so-called ‘national government.’  What else is one to say when one-time Rajapaksa loyalists of exceeding ill fame are welcomed into a grotesquely swollen Cabinet as United National Party Ministers turn all shades of quite unbecoming purple trying to justify these happenings?

Chaotic process of constitution-making
Truly, Sri Lanka’s perennial tragedy has not been the absence of fortitude on the part of its people but rather, the betrayal of public expectations by its leaders elected to political office. And in the dilemmas that confront the Sirisena Presidency in fulfilling an ambitious electoral mandate, ethical considerations seems to have been abandoned to the four winds in favour of the ‘end justifies the means’ argument. Hopefully the end result will justify the high price that this Presidency will have to pay in this regard.

Regardless, the continuing lack of far-sightedness shown in this Government’s policy-making and law-making efforts is troublesome. We hear numerous claims that laws promoting good governance have been passed or are being finalized. However, the sheer extent of confusion attendant thereto beggars understanding. Most worrying is the chaotic process of constitution-making. The gazetted 19th Amendment Bill is now awaiting hearings in the Supreme Court even as we hear almost daily, reports of further amendments and revisions being made to the text. Certainly this is not how constitutional amendments ought to be drafted, discussed or enacted.

Indeed, the level of obsessive secrecy regarding the process equals if not surpasses past unhealthy practices. And this attitude is immediately at odds with a proposed law securing the Right to Information which aims to dislodge the culture of secrecy in government. Surely there is no point in having laws pronouncing on rights in theory if the administrative process and the workings of government actively conspire to defeat that very purpose?

Learning little from history
We seem to learn little from history. In some respects, there is indeed a feeling of déjà vu about the secretive nature of the process. The unhappy fate of the Constitution Bill of 2000 hurriedly gazetted as an urgent bill and referred overnight to the Supreme Court by the Kumaratunga Presidency is an unwilling reference. The urgent bill mechanism was rightly not followed in the case of the 19th Amendment by President Maithripala Sirisena due to public pressure. Notwithstanding, the secrecy associated with the 2000 constitution-making exercise continues.

The 2000 Constitution Bill tried to replace the Executive Presidency with a ceremonial head of state assisted by two vice presidents from two different communities and a return to the Westminister system of government. The appointment of members of the Cabinet, (by the President acting upon advice of the Prime Minister), was made subject to the need to ensure the representation of all major communities.

Though some provisions of the Bill had been put before the people, the country remained unaware of the Constitution Bill in its entirety. When the draft finally became public, its backdoor provisions relating to the duality of the powers bequeathed to a Presidential incumbent led to a storm of protests by citizens’ groups, monks and the opposition. Though legal challenges to its constitutionality (predictably) failed in the Supreme Court under the stewardship of ex-Chief Justice Sarath Silva, public agitation resulted in the government withdrawing the Constitution Bill from Parliament. The Constitution Bill was sought to be passed with indecent and tumultuous haste. If this was not the case and a wiser process followed, the Bill might have enabled a healthier constitutional balance of powers and averted many of the disasters which later befell the country as a result of extreme Presidential authoritarianism.

Troubling aspects of the 19th Amendment
In contrast, the 19th Amendment has been generally welcomed. Yet a secretively changing text together with certain of its clauses relating to the balance of powers between the Presidency and the Prime Minister invokes concern. Ideally the 19th Amendment Bill should, in its final form, have been published in the major newspapers in all three languages to enable informed debate, consensus and support. Meanwhile, the withdrawing of immunity afforded to the President only in regard to the limited province of fundamental rights violations, (along with the previous limited exceptions of electoral petitions and the like), remains a fatal flaw.

This is troubling at several levels as pointed out previously in these column spaces. First, the government ought not to be allowed to get away with its trumpeted boast that it has, in fact, abolished presidential immunity. Second, the explanations that government front-rankers give, when challenged on this ground, are far from convincing.

We are told variously that the President should not be liable to being dragged before court for each and every frivolous ground and that in any event, with the delegation of powers to the Constitutional Council and the independent constitutional commissions, the extent to which the President will be responsible before the law will not be as wide ranging as before.

The public roar for change
Both these explanations lack legal force. The argument that abolishing immunity wholesale will result in frivolous actions is just plain nonsense as seen in other jurisdictions where presidential immunity does not prevail. There is little precedent to support this simplistic argument. Moreover, there is no rationale as to why immunity has not been relaxed also for writ applications at least. Again, to say that the Constitutional Council and the constitutional commissions now bear the burden of governance has little credibility in view of the significant powers that remain in the Presidency. Further, actions of the Council themselves have also been afforded that same immunity, except in the niggardly exception of lodging fundamental rights challenges.

Secrecy and immunity must yield in all instances to transparency and accountability before the law. This was the public roar emanating from the peoples’ victory this January. We are still awaiting its realization, albeit less expectantly than before.