Still not too late to take a step back

| by Manik De Silva

(January 5, 2013, Colombo, Sri Lanka Guardian) A contributor to our columns today has harked back to the period when the much derided 1978 Constitution was being drafted by the J.R. Jayewardene government which in 1977 scored the biggest ever landslide in the country’s electoral history. Prime Minister Jayewardene, as the chairman of the Parliamentary Select Committee on that constitution, had remarked at one of its hearings that “We are practically a dictatorship today. There is nothing that we cannot do in this House with a five-sixths majority. I am trying to avoid that.’’ Whether he did that remains highly debatable.
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Certainly with regard to the creation of the Executive Presidency, which many regard as an institution clothed with too many powers that have been used an abused since JRJ was first “deemed’’ to have been elected Sri Lanka’s president, there have been pluses and minuses. We would first like to remind leaders that Jayewardene was elected prime minister and not president in the 1977 election which routed his predecessor, Mrs. Sirima Bandaranaike, reducing her SLFP to fewer seats than the TULF and depriving the once proud old left of even one parliamentary seat. He was deemed president by the 1978 constitution and was elected – often wrongly described as “re-elected’’ – for a second term in 1982. Undoubtedly the powers of executive presidency helped Jayewardene to open the country’s long shackled economy which most would grant was his lasting legacy. But he, despite the powers of the presidency, was not able to do what President Mahinda Rajapaksa did in 2009: stamp out LTTE terror and establish the writ of the government islandwide.
We have in these columns argued more than once that the worst governments that plagued this country during its post-Independence history were those that enjoyed absolute majorities in the legislature. These were the United Front Governments of Mrs. Sirima Bandaranaike that included both the LSSP and the Communist Party and, of course JRJ’s 1977 administration, both of which were bestowed two thirds majorities by the electorate enabling the amendment of the constitution at will. President Rajapaksa, though he enjoys such a majority at present, was not conferred that benefit by the electors although he campaigned for it at the last parliamentary election. He subsequently obtained it by engineering defections from opposition parties, inevitably for consideration with those joining the government rewarded with cabinet office. The result is that Rajapaksa too is armed today with a tyrannical two thirds majority and in addition to his wide-ranging executive powers, commands the legislative power to do what he wants.
Despite what has proved to be impotent anti-defection safeguards that is part of the proportional representation system of elections introduced by the 1978 constitution, the courts whose independence is now being fought for have permitted defectors to retain their seats and made a mockery of the wishes of the electors who first chose a party and thereafter expressed a candidate preference when they voted at elections under the proportional representation system. The results are that a powerful president with tight control of the legislature is today moving to impeach the country’s chief justice using a surfeit of power and weaknesses in parliamentary standing orders which allow him to do as he will. We do not know whether Chief Justice Shirani Bandaranayake, a protégé of External Affairs Minister G.L. Pieris who brought her from academia to the Supreme Court and an appointee of the president, is guilty or not of the charges preferred against her. But what we do know is that the procedure followed to `try’ her through a Parliamentary Select Committee is deeply flawed.
We now have on the authority of Senior Minister Tissa Vitarana, the leader of the LSSP, who has said in a newspaper interview published last week that the chief justice had requested an appointment for her husband who is now arraigned before a Magistrate’s Court on charges filed by the Bribery Commissioner. Vitarana is on record saying that when asked why the president appointed Pradeep Kariyawasam (the CJ’s husband) as Chairman of the National Savings Bank, the president had said it was “done under her specific request. President Rajapaksa did not want to antagonize her and therefore had to accommodate her.’’ (Vitarana’s words). There has been gossip that such was the case but never an attributed quotation on the matter. “Where on earth does a judge go and make such a request?’’ Vitarana has asked. And where on earth are such requests complied with? The NSB where he fell into trouble is not the first patronage appointment bestowed on Kariyawasam. He was previously Chairman of the Sri Lanka Insurance Corporation. The unfortunate answer to Vitarana’s “where on earth’’ question is Sri Lanka. This is not the first recent instance where patronage has been bestowed on judges. A non-career diplomatic assignment for the child of one judge married to the child or another and another plum high commissionership conferred on another Supreme Court judge (no doubt arranged while he was on the bench) soon after retirement are recent examples that come to mind.
Sri Lanka has scuttled a solemn statement made to the UN Human Rights Commission in Geneva several years ago that the impeachment of a judge under provisions of the Constititution and a Parliamentary Select Committee (PSC) process established under standing orders is subject to judicial review. That undertaking is as hollow as can be. The Supreme Court has ruled that it is the sole interpreter of the Constitution and that the PSC is not a lawful tribunal. If the case against Bandaranayake is strong as it is claimed to be by the government and its propagandists, why was she not tried in the normal way? Malfeasances alleged in the charges preferred against her, most of which were not examined by the PSC, would if proved, have been conclusive. Instead a PSC proceeding at express speed has reached a conclusion that had earned the country ill-repute in the democratic world and may yet have other repercussions. Granted she cannot be impeached in the courts, but if a prima facie case had been made against her she could not have survived in the high office she holds. Public opinion, if nothing else, would have driven her out.
A weak and ineffective opposition has made it easier for a government hell bent on pursuing the course it has chosen. Last week’s Supreme Court interpretation, read out in the Appeal Court and other cases that are due to come up in the next few days will undoubtedly escalate the crisis. The parliamentary debate on the report of the PSC is only days away and unless the government decides to step back for the moment and proceed to set about investigating the charges in a sensible manner, allowing the CJ the normal safeguards any citizen is entitled to, where this needless conflict will take us none can predict.
( The Writer, Editor of the Sunday Island, where this piece was originally appeared)

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Author: Sri Lanka Guardian

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