Prof. Savitri Goonesekere
In October 2018 President Maithripala Sirisena replaced Prime Minister Ranil Wickremesinghe with Mr Mahinda Rajapakse, purporting to exercise his Presidential powers. He later dissolved Parliament. Political party leaders and citizens challenged these Presidential decisions in the courts of law. A Full Bench of the Supreme Court, presided by Chief Justice HNJ Perera decided unanimously that the dissolution of Parliament was illegal, and a violation of the President’s powers, functions and responsibilities under our Constitution, the fundamental law of the land.
Commenting on the status of the petitioners to come before the court, His Lordship said ” there is an inalienable right of every citizen of the country to invoke the fundamental rights jurisdiction of the Supreme Court… This is the corner stone of the sovereignty of the People, which is the grundnorm (I.e. core value) of our Constitution.” His Lordship said that in enforcing these rights the court is “giving life and meaning to the Constitution.” His Lordship was therefore saying that enforcing these rights is also a method of limiting State power, and the power of those who hold public office, helping to ensure that power is exercised in governance, with accountability to the people.
It is important to recall these views on citizens’ right to take their grievances to courts. Much publicity has been given recently to remarks made by lawyers in the Gotabhaya Rajapaksa dual citizenship case, villifying the petitioners for coming to court and raising the matter. This has contributed to a surge of hate mail against them on the internet, and apparently even death threats. Perhaps it is time for the Bar Association to set guidelines on ethical norms and standards in regard to the manner in which they present their case. Senior lawyers in that case could have been expected to reflect on what the Supreme Court said about citizens claiming rights in our courts of law in 2018.
In this Full Bench decision of 2018, the Supreme Court also gave an important interpretation on the scope of Presidential powers. The court said “since 1972 (acquiring Republican status), the country has known no monarch, and the President has not inherited the mantle of a monarch….. he has no plenary executive powers….His powers are not Royal Prerogatives, not subject to any restrictions….His executive powers are derived from the People….He is a creature of the Constitution, and only has the powers vested in him., and circumscribed by the Constitution.”
Yet a some weeks ago, the President removed Professors who were Vice Chancellors of the University of Jaffna and the University of Visual and Performing Arts. These officials are the highest academic and administrative officers of public universities. About the same time we heard that the President decided to reinstate Mr Yoshitha Rajapaksa in his post in the Navy, with full privileges, including a promotion and back pay for many years. The public does not know why the President chose to change the previous decision on terminating this officer. We saw this officer being felicitated with some Navy rituals at his recent wedding. So we see that two senior academics and heads of universities lost their jobs, while Mr Rajapaksa received the best wedding present he could have got when he married.
University autonomy has been eroded with the changes introduced by the JR Jayewardene government in 1985. Nevertheless the President is required to remove the highest academic and administrative authority of the university after consultation with the University Grants Commission (UGC), the responsible regulatory authority. That Commission in terms of its mandate and responsibilities in the area of higher education should have obtained the views of at least the UGC nominees in the university’s governing body, the Council. Since the Senate is the highest academic authority which the Vice Chancellor chairs, should they not have articulated a voice on this episode? Similarly, the Committee of Vice Chancellors and Directors, since any one of them, or several can be summarily terminated in this manner. The Commission should also have followed the norms of natural justice and given these officials an opportunity to be heard, before they gave their opinion to the President. The criticisms expressed by a few academics who have protested at the violation of norms on university autonomy, suggest that none of these procedures were followed in making the Presidential decision to terminate these Vice Chancellors’ appointments.
The President has followed these official acts by public statements, which indicate yet again an arrogant disregard of the Constitution he is bound to follow in exercising his powers and responsibilities. He was heard on TV recently describing how much he did for the Rajapaksa family, including making Mr Mahinda Rajapaksa Prime Minister in 2018 ! These statements were reinforced by the person who lost an election and was brought to Parliament, Mr S.B. Dissanayake. He described on TV how he had contributed to a patriotic regime change in 2018 that failed, because they could not get the required majority in Parliament. We all know that this former Minister led the notorious trading in crossovers that was stalled due to public criticism and protests.
The Presidential campaign is also surfacing incidents which demonstrate the manner in which serious issues of public concern are addressed. Mr Gotabhaya Rajapaksa declared at his first meeting in Anuradhapura that he would release all persons from the armed forces who are currently in custody. Some of these persons are accused of the extortion, abduction and killing of adolescents and youth, in identified and wealthy families. Mr Rajajpaksa went o the say that he will distribute free fertilizers to farmers: this despite the fact that this is an area where people have suffered greatly from CKD, and a strongly articulated point of view is that the disease is due to over use of fertilizers.
We as citizens called upon to elect the next President must reflect on these happenings. Should we not demand that all candidates give us a commitment to abolishing the Executive Presidency which fosters and encourages abuse of political power and even legitimizes such abuse. Witnessing the current abuse of power by politicians, we must ask ourselves whether we want to enthrone “strong leadership” and monarchical governance in our quest for national security, economic growth and development. All the members of the Eliya and Viyathmaga groups in the corporate sector must reflect on our history of violent protest and break down of law and order in religious and ethnic tensions and conflict, and decide whether dictatorial governance by “strong men” is what we must have to ensure peace and progress. Do we want to live in a country with “strong leaders” who do not respect the concept that there must be accountability to the citizens in the exercise of powers and functions in governance? Do we need self proclaimed patriots who decide that all who hold different opinions are traitors to the country which they describe as only their “motherland”?
Our collective failure in objecting to obnoxious and arrogant exercise of official powers whether in the country or our university system strengthens the public perception that there is nothing wrong with violating the basic law of the land, the Constitution or other laws, when people are invested with political power. The Supreme Court of our country in the Full Bench decision has articulated a strong voice on the importance of freedom and accountable governance. It is our duty as citizens to safeguard our rights and monitor and ensure this accountability. We are surely setting the stage for unchecked authoritarian governance and dictatorship and even a Presidential monarchy. Is this what we want for ourselves and the future generations in this country? Other countries have experienced the reality and the suffering, and know that dictatorships thrive for much longer than we can envisage, with our limited understanding of the toxic attraction of political power.
We are living in a difficult time when we may leap from a sizzling “thatchiya” into the coals and flames under it. Can we afford to forget the words of the eminent judge who said “power corrupts and absolute power corrupts absolutely?”