An angry call for a selective deluge

Sunday, May 29, 2016

Exasperated by the peccadilloes of the ‘yahapalanaya’ (good governance) administration in pulling back on its promises to punish the corrupt in the South and bring justice to those who had suffered in the North, a colleague of mine advocated this week in an angry communication that Colombo’s flood waters should have advanced further than merely retreating at the entrance of the Parliament.

‘If it rained only on Parliament and if the House was in session, this would have solved all of Sri Lanka’s problems in one fell swoop’ he enthused.

Continuation of the democratic deficit

Quite apart from these rather cruel musings, there is no denying that the country’ democratic deficit continues. Yet despite clear warning signals belying superficial promises, we are too quick to casually shrug our shoulders and too eager to believe that things may not appear as bleak as they may turn out to be. This relates to a streak of quite unfortunate frivolity in Sri Lanka’s South which co-exists alongside the ready willingness to help others in times of distress as was well seen during the floods last week.

This frivolity which goes beyond tolerance of the intolerable is a puzzling aspect of the national character, prevailing often than not as an integral part of the educated and seemingly elite mindset. Perhaps this comes from long generations of having had life a tad too easy in an island of lotus eaters, even despite the death and the destruction which has periodically been visited upon its people.

Indeed, we have examples galore from the past. The lackadaisical attitude of those who should have known better was precisely the reason why the judicial institution was dismantled with such consummate ease from 1999 onwards under the Kumaratunga Presidency. This was continued with greater strength during the Rajapaksa years even as Chief Justices themselves became political creatures and the Bar uselessly muttered within itself. At a point when critical intervention may have worked to pull the system back, we had only colluding lawyers currying political favours on the one hand and scared silence on the other.

Repeating the same mistakes

Even though this Government shouted from the rooftops last year that it had ‘made the judiciary independent again’ in a paradoxical cry to its removal of a sitting Chief Justice by executive fiat, this was an empty boast. Systemic reforms of the judiciary are yet to be implemented. There is little hope that the presently sputtering constitutional reform process will take that task forward. True, judges who are inclined to work independently will not be subjected to political pressure unlike during the Rajapaksa period.

However, that by itself does not suffice to build up the integrity and capacity of the judicial institution. What takes a short decade and a half to destroy will take generations more to rejuvenate if that eventuality is still possible. These are the same mistakes that are being repeated once again. We need only to look at the failures of Sri Lanka’s increasingly tattered ‘rainbow revolution’ to realize this stubborn truth. Very early on, it was evident that political choices were made by the coalition Government that came directly in conflict with their promises.

When increasingly critical appraisals of the ‘yahapalanaya’ (good governance) administration were being carried in these column spaces, there were murmurs of concern. ‘Give them time to perform’ it was pleaded. Now this government has been given time and plenty of it. Regardless, the results have certainly not been reassuring.

Lamentably bad appointment

Reports this week that former Director General of the Telecommunication Regulatory Commission Anusha Palpita has been appointed as an Additional Secretary of the Home Affairs Ministry, despite being indicted for misappropriation of State funds amounting to Rs 600 million before the High Court are an outrageous case in point.

It is a firm principle of law that a public officer must be immediately interdicted if an indictment is pending against him or her under paragraph 27 of Chapter XLVII of the Establishment Code. This is a principle that has been upheld in countless judicial decisions. In fact, the judges have been quick to safeguard an aggrieved public officer with sufficient protection in case the interdiction drags on for too long or there are delays in the legal process. This has been done by interpreting Article 12 (1) of the Constitution to mean protection of ‘liberty with livelihood’ (see Jayasinghe v AG, SCM 04.11.1994).

All these protections were painstakingly laid down and developed in established cursus curiae by the Supreme Court during the period when it was actively intervening to protect the Rule of Law. Indeed at one point, the National Police Commission in its first term and under the Chairmanship of the late President’s Counsel Ranjith Abeysuriya determined that any police officer who had been indicted in a court of law had to be forthwith interdicted. This practice too seems to have been abandoned and political favouritism followed instead. Legal principles were thrown to the winds in later years.

Shameful explanations proffered

While that may be the case, it was for correction of the status quo that this Government was elected to power last year. Therefore it is shameful that a Minister has sought to justify the appointment of Palpita (formerly a key official tasked by the previous regime to handle ‘troublesome’ websites) by claiming that this is all a furore created by the media. Appointment of an officer who is indicted for misappropriation to a public post goes against the very foundation of the Rule of Law. If this Government and this Prime Minister is serious about retaining whatever shreds of credibility attached to the administration, action needs to be taken not only in respect of cancelling the appointment but also disciplining the Minister concerned.

In the meantime, it is perplexing as to why the Ministry of Public Administration has reportedly written to the Public Service Commission (PSC) requesting disciplinary action against Mr Pelpita under the Administrative Service Establishment Code. Immediate corrective action should be taken within the Government itself. Why is the responsibility thereto being passed to the PSC?

Is there any wonder that the Government is being accused of ‘deals’ with the former regime? And should those who call for the heavens to selectively rain only upon Sri Lanka’s Parliament really be blamed?