Kishali Pinto Jayawardene
Duplicitous politicians who engage in constitutional games to hoodwink the public must be clearly exposed for the truly shameful creatures that they are.
Chopping and changing the primary text
Constitution-making in Sri Lanka has generally been instrumental. Amendments to the nation’s primary text are driven by obvious political agendas. There are rare exceptions like the 17th Amendment to the Constitution (2001) when political parties stripped themselves of power in order to de-politicise the governance process. It was here that the idea of independent constitutional commissions and the reining in of excessive presidential/parliamentary powers was born.
But the 17th Amendment had a short shelf life as the political establishment united as one in violently resisting dilution of powers. And to put the record straight, this was true of the ‘liberal’ United National Party (UNP) as well as of the very proponent of the 17th Amendment, the Janatha Vimukthi Peramuna (JVP). The first chink in this progressive amendment came when then President Chandrika Kumaratunga refused to appoint a retired Supreme Court judge as Chairman of the Elections Commission despite repeated recommendations of the Constitutional Council (CC). The CC, at the time, consisted of a majority of non-politicians unlike its defanged successor in the 19th Amendment. It refused to withdraw its nominee and insisted, albeit vainly, that the President must give reasons for failure to appoint.
Once that undermining began, it became very easy for the Mahinda Rajapaksa Presidency to replace the CC entirely through the 18th Amendment with a useless ‘Parliamentary Council’ which rubber stamped the President’s decisions. The point however was this end result was brought about by the combined political consensus rather than the Rajapaksa Presidency (2005-2014) alone, contrary to the convenient ‘yahapalanaya’ narrative peddled in recent years. In 2015, parliamentarians who voted for the 18th Amendment, unhesitatingly voted for the 19th Amendment which clamped fetters on the unrestricted and arbitrary use of presidential powers when making appointments to key positions, including the Chief Justice and members of the superior judiciary.
Coming of full (constitutional)circle
Now, in a fittingly grotesque coming of the full (constitutional) circle, we have the very same Minister of Justice (Wijayadasa Rajapaksha) who presented that 19th Amendment to the House, proposing an amendment (through a Private Members Bill of all expedient devices), seeking to restore presidential powers to their earlier monarchical status. This is not mere constitutional instrumentalism but something far more insidiously dangerous. Its purported intent to allow the President to hold the Defence Ministry in his hand, justified by the hysterical mantra that national security demands the same, obscures a hidden purpose. This is to return the process of making appointments to the higher judiciary to a nakedly political process. The 18th Amendment had established an ineffective Parliamentary Council from which the President could ‘seek observations.’
This time around, the proposed constitutional amendment which is replete with grammatical errors, (naturally the case given that its author is a President’s Counsel and holds a double doctorate, since we are not living in times when these prefixes/suffixes mean a whole lot), goes a disgraceful step further. Clause 2 (1) suggests that the President shall appoint the Chief Justice and members of the superior judiciary after ‘ascertaining the views’ of the Judicial Service (sic) Commission. In actual fact, it does not quite say this. What it does say is that ‘The President shall appointed the Judge referred to in Part One of the Schedule to this Article after ascertaining the views of the Judicial Services Commission.’ Disentangling the atrocious language (how do Bills of this nature get gazetted in the first place in this wondrous isle?), there are palpable curiosities at play.
The ‘Judge’ referred to in Part One of the Schedule includes not only individual justices but members of the Judicial Service Commission as well. In other words, this clause calls upon the President to appoint members to a body subject to a redundant condition that he/she may ‘ascertain’ the views of that same body. This is a fine example of woefully circuitous if not dysfunctional drafting, if there ever was one. Clause 2(2) meanwhile proposes that when appointing individuals to key positions such as the Office of the Attorney General, the Inspector General of Police (IGP) and so on, the President may ‘ascertain the views’ of the Prime Minister. In the current political scenario, this would mean one Rajapaksa (the President) having a brotherly chat with another Rajapaksa (the Prime Minister). It does not need underscoring that this so-called ‘ascertainment of views’ will be far worse than the 18th Amendment’s rubber-stamping Parliamentary Council.
Is this what November’s voters wanted?
Interestingly, this amendment is presented with astounding chutzpah. It is almost as if the entire furore over the 18th Amendment was never in issue. What is only lacking is that its supporters are yet to argue that, Six point nine million of Sri Lanka’s voters (the winning percentage in November’s Presidential elections last year) would ‘want’ this constitutional atrocity to come about. This is not far fetched. Indeed, a Government spokesman bleated this week that this magical percentage had ‘wanted’ the National Anthem to be sung in Sinhala only, rather than in Sinhala and Tamil. It is, of course, eminently unclear as to the logic of this claim, apart from the usual bovine stupidity which is a characteristic of politicians the world over.
All this is not to say that the 19th Amendment is without flaws. Its drafting was perhaps as instrumentally driven as its predecessors. As observed many times in these column spaces, its contents were clumsy in crucial respects leading to vitriolic clashes over Presidential powers, one such clash being famously referred to the Supreme Court in late 2018 resulting in the President at the time being judicially rapped over the knuckles. Apart from the composition of the Constitutional Council (CC) being weighted in favour of politicians, due to an amendment proposed by the Rajapaksa lobby, it could have been more far sighted in pre-empting the inevitable challenging of its recommendations by making the process far more transparent than it was.
The fact that its decision-making was fair, by and large, is no excuse. The well-known adage is, after all, that ‘justice must not only be done but must be seen to be done.’ If that caution had been observed at the time, adversaries who now shout from the rooftops that the CC must be done away with, would have less grist to their unholy mill. But that critique of the 19th Amendment does not mean that we must return to the injustices of the 18th Amendment. In the final result, Sri Lanka’s constitutional making does not merely illustrate the fact that principled politics (maybe an oxymoron in terms) has no place. Rather, this constitutional circus that we are routinely subjected to when one lot is thrown out and another comes in, shows that we have knaves in the seats of power and fools as the sheep-like populace.
It is as bitterly simple as that.