Kishali Pinto Jayawardene
It is a matter for raucous entertainment when Sri Lanka’s opposition Members of Parliament, some with the proud boast of associating with known racketeers and jumping from one party to another while others are taped offering bribes to legislators to cross the floor, accuse the country’s Constitutional Council (CC) of being ‘biased’ and ‘corrupt’.
The reality of a constitutional compromise
It is also no coincidence, as emphasised last week, that former President Mahinda Rajapaksa and his salivating faithful, along with President Maithripala Sirisena, have been launching ferocious frontal attacks at the CC since the frustration of their extra-constitutional coup late last year. These attacks have increased in intensity this week, necessitating an objective rebuttal with the expending of energy better spent on more productive matters.
That apart, this is no dewy-eyed defence of the CC as some would prefer. Equalizing the CC under the 19th Amendment with its predecessor under the 17th Amendment is a farcical exercise. Those who attempt it, though fully knowing better, should be ashamed of themselves. Under the 17th Amendment to the Constitution (2001) piloted by the Janatha Vimukthi Peramuna (JVP), the CC comprised of a majority of non-political members which by itself, distinguished that body from the pale shadow that came into being under the 19th Amendment.
Yet as realists would argue, (and I am differentiating these from the witless few who protest ostrich-like that the 19th Amendment has no flaws), this was a compromise brought about by the degenerative political environment in which that amendment was passed in haste. The fact that it contained inherent contradictions, ranging from a clumsily framed right to information to confused executive powers vis a vis the legislature as we saw all too well recently, was inevitable.
Steps that might have been taken
Despite this, the predominant truth is that the 19th Amendment was passed to correct the gross 18th Amendment, ‘of the Rajapaksas, for the Rajapaksas and by the Rajapaksas’, in an irrepressible Sri Lanka-specific twist of Abraham Lincoln’s pithy wisdom. Put simply, this was an attempt to secure a Rajapaksa dynasty for decades to come. So the curate’s egg of the 19th Amendment, which turned the clock back on the 18th Amendment, must be read in its context. What is flawed must be defended in the light of the infinitely worse, or so that difficult argument will probably go.
But even so, much of what has now become a ‘political football’, in the words of Prime Minister Ranil Wickremesinghe, may have been prevented early on if a measure of commonsense had been employed by Wickremesinghe’s own administration. It was predictable, given Sri Lanka’s ugly political realities, that the CC would be put into the eye of a storm sooner or later. That being the case, pre-emptive steps should have been taken. No extraordinary foresight surely was necessary for this.
As far back as in late 2015, this very question relating to the transparency of the CC process in respect of nomination/recommendation for appointments to high offices and constitutional commissions was raised presciently in these column spaces (‘Taking heed of clear warning signals’, Focus on Rights, November 1st 2015). It was pointed out that clarity was needed in this regard and that greater public scrutiny was warranted. At that point, the criteria itself was not publicly available. Now this has been tabled in Parliament by Speaker Karu Jayasuriya.
A larger question of the discipline of superior judges
Undoubtedly the despicable onslaughts on judges on the floor of the House by Rajapaksa supporters crudely employing religion as a weapon and designation of the CC as ‘corrupt’ by politicians who are demonstrably corrupt for the world to see, will raise the hackles of any decent citizen. Categorically, these are not well-intentioned efforts to put right what may be somewhat askew. Rather, these onslaughts are part of a well orchestrated plot to undermine even the constitutional minimum that we have. In particular, the CC is being savaged as it has stood firm in the matter of judicial promotions.
This issue is linked, as emphasized previously in this column, to a larger question of disciplinary procedures relating to judges of the appellate courts. If credible allegations exist of behaviour unsuitable for judicial office (viz; acceptance of money by politicians, sexual misconduct or decisions taken with political bias and conflict of interest), then these must be formally investigated in a process that is not politically compromised.
Leaving these matters to be governed only by (politicised) impeachment proceedings in Parliament is unwise in the extreme. It is from this lacunae that we see cleverly managed slings and arrows being leveled at the Constitutional Council in terms of pointed questions which the Council has indeed become helpless to answer, ie; if there are no credible disciplinary issues against ‘so-and-so’, why is the promotion not being made? Or if ‘so-and-so’ is fit to sit in the Court of Appeal, from whence does the unsuitability to sit as the President of that Court or in the Supreme Court arise? Having ugly rumours float around in the hysterical spaces of social media is hardly the solution. Indeed this rebounds to the discredit of the judicial institution itself.
Institutional reforms needed
True, the CC has to obtain the ‘views’ of the Chief Justice in this regard (Article 41C (4)) but these ‘views’ are not released to the public. Perforce, even if the Chief Justice recommends (perfectly properly) that a particular judge should not be promoted due to adverse judicial behaviour, this recommendation cannot be publicly cited in substance. It can hardly help the CC’s case therefore as it battles in the court of public opinion against unmitigated rascals masquerading as legislators.
There are other considerations in issue. Currently Sri Lanka has the good fortune to witness a Chief Justice who holds his office with commendable integrity. But this country has suffered for two decades due to the depravities of Chief Justices, (some far worse than the others), who have been governed by naked political ambition and/or who have bent the knee to executive Presidents and garden-path common politicians alike with woeful alacrity.
While it is obvious that the ‘views of the Chief Justice’ must be obtained in these situations, institutional reforms referencing the disciplinary processes of judges of the superior courts must surely rest on more secure foundations. We should look to other countries grappling with these same issues of accountability and transparency for pointers, India being one.
Too important to be left to politicians
Certainly the integrity of constitutional and statutory institutions is far too important to be left to the crudities of politicians. Particularly where the judiciary is concerned, reforms must be prioritised even at this complicated juncture. Otherwise, it may be far too late.
For if the present uninspiring political trajectory continues unchecked, the Rajapaksa years will be a mere passing thunderstorm. The fire and brimstone that Sri Lanka will soon experience will have the potential to destroy constitutional checks and balances in one fell swoop, make no mistake.