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20th Amendment Draft was a clumsy copy-paste job of the discredited 18th Amendment that has mow been chopped further by the Attorney General called upon to defend a bad brief


By

Kishali Pinto Jayawardene

In a chance conversation off a bylane in Polhena, Matara last Friday, a fresh faced resident with rosily chubby cheeks belying her probably 70-odd years had an astringent question for me; ‘if the President says there is no need for circulars and his word is enough for a public official (‘aanduwe niladhari’) to act on, failing which he or she will be punished, what will that official do if someone goes to court against that?’

I could only quip; ‘well, the President may very well tell the court also that his word is enough.’

The history that the ‘Sun King’ teaches us

But her query raises a serious point in law over and above all the (justifiable) howls of outrage that accompanied this stern directive by President Gotabaya Rajapaksa in Haldumulla, Badulla that all his verbal orders must be treated as circulars or consequences will ensue. Notwithstanding those who may applaud this position based on their (also justifiable) criticism of a public service seen as inefficient at best and corrupt at worst, statements such as these will cripple the emasculated remainder of Sri Lanka’s administrative service.

From a firmly logical standpoint, my interlocutor put the matter very well with that question. Indeed, the issue is not merely with what the President may verbally order. As it is practically quite impossible for one individual to be directly communicating with his loyal subjects forming the voter base which electorally genuflected en masse for the Rajapaksas and who may very well be willing to do what he orders, the problem arises also with those who communicate what they will undoubtedly say, is the President’s orders. The nightmarish scenario that this conjures up is immediate.

From chaos of a particular kind that we have habitually experienced as the citizenry in this country, the potential for anarchy to ensue as a result of such statements emanating from the President is not hard to imagine.

One cannot simply brush these presidential affirmations as arising out of frustration at work not being done or obstacles put in the path of efficient leadership. If that is the case, then the answer lies in reforming institutions and processes. Manifestly it is not in echoing Louis XIV, the ‘Sun King’ to whom is famously attributed one of the most noted misstatements of all time,‘l’etat, c’est moi’ (I am the State).

A tad more prudence is needed

Whether this monarch who wielded supreme legislative and judicial authority in the France of his day actually said this or not is not the point. Millennia after, regardless of the fact that this reign of the ‘Sun King’ came to be known as one of the most glorious periods in French history, these words were cited as a salutary warning to rulers from Europe to Asia. The lesson was clear. Never think that you are above the Law or that, you are in fact, the Law. So at this stage, a tad more prudence on the part of the President and his advisors may well be wise.

It was the arrogance of power of the ‘yahapalanaya’ coalition Government in 2015-2019 which resulted in its downfall.

Despite all signs to the contrary, it refused to believe that the defeated Rajapaksa bloc would regroup and re-emerge into the political mainstream, stronger than ever after its shock defeat in 2015. Already signs of that self same blindness coupled with arrogance are making themselves felt in this administration. As jokes abound about this nation of nuts with vendors of coconuts being ordered to measure the circumference of a nut before determining the price, we are treated to the ridiculous spectacle of inspectors roaming around marketplaces to catch the unwary.

Even so, the constitutional games that are taking place are not a matter for laughter. As the Attorney General argues before the Supreme Court that what is presented by the draft 20th Amendment is essentially what had already been judicially cleared earlier at one or the other stages of Sri Lanka’s tortuous constitutional making, that same argument is challenged by the fact that a series of amendments to the 20th Amendment Bill have been put by the Attorney General before Court

Further amendments to the 20th Amendment Bill

If all was right and constitutional, surely there is no need for the Government to, through the state law officer of the land, present further amendments as for example, by amending the period within which the President can dissolve Parliament, from the earlier proposed one year in the draft 20th Amendment, to two and a half years? Among other amendments placed before the Court is the bringing in of the Office of the Inspector General among the constitutional high public offices, (which had been omitted earlier).

It appears also that the Government has advisedly backtracked on the 18th Amendment’s empowering the President to unilaterally remove nominees of the Prime Minister and the Leader of the Opposition on the parliamentary council tasked with ‘making observations’ on appointments to high offices, the judiciary and the stripped down constitutional commissions. Removal is now proposed to be at the request of the Prime Minister or the Leader of the Opposition.

Other amendments are commonsensical, such as the requirement of the Auditor General being a qualified auditor. Audit powers now include the Office of the Prime Minister and the President. Significantly, the magnanimity of the Government in these amendments have not extended to audit powers reaching out to corporates in which the Government hold majority shares. The rest of the proposed amendments go to the numerical composition of the Elections Commission, (thus addressing the quorum problem that had long bedeviled it), as well as other commissions. Of some significance meanwhile is the fact that the President is duty bound to appoint another ‘judge’ to act when a superior court judge is temporarily unable to function, as opposed to an earlier scandalous reference to ‘a person.’

This is not how a Constitutional amendment is drafted

In the form that it was in the 20th Amendment Bill, the President could have just picked a scavenger off the street to act in the place of a judge of superior record. This was an atrocity perpetuated by the 1978 Constitution, bypassed by the Court in approving the 18th Amendment (2010), regardless of the fact that this directly impacted on the integrity of the judicial office. To repeat, this is not how Constitutions or constitutional amendments ought to be drafted in a witches’ cauldron of bubbling confusion accompanied by cackles of ‘double, double, toil and trouble, here we amend, there we amend.’

What concerns the nation is not strict legal or technical constitutionality. Rather than ugly scrambling over a hasty amendment which no one professes authorship of, would it not have been better to have embarked on a consultative process to decide its contents?

Better still, the Government may have limited the amendments to manifestly urgent constitutional aspects such as the ability of the President to hold the defence portfolio.

But what we had was a clumsy copy-paste job of the discredited 18th Amendment, now chopped further by an Attorney General called upon to defend a bad brief. The Government, flush in its ‘unprecedented mandate theory’ and repeating that hoary nonsense like an extraordinarily new justification, did not stay its hand for such sobriety.

This is hardly reassuring. It has brought upon its own head, recriminations and anger even from its loyalists.

That fury is richly deserved.

Courtesy:Sunday Times