Columns - FOCUS On Rights

A king's crown and the arrogance of power
By Kishali Pinto Jayawardene

Corruption, one might say, is as old as politics itself in Sri Lanka. So indeed is disregard for the Constitution by those in power. We are all familiar with the breathtakingly ingenious ways in which each constitutional document of the day was sought to be twisted, subverted and manipulated by astute legal minds at various periods to suit political or even personal agendas.

Perpetuating the arrogance of corruption

Yet, even with this undeniably complex history behind us and familiar as we are with dynastic political rule, some distinguishing factors mark the current political regime as dangerously different from any of its predecessors. To be quite clear, this is not simply to focus on the Rajapaksa siblings, in-laws, sons and daughters, nephews and nieces, cousins and relatives, (not once removed but perchance twenty times removed from the seat of Presidential power) placed at different levels of political or financial power. Neither is this critique concerned purely with the incompetence, mismanagement or outright swindling evident at each tier of government with crucial accountability reports of the Parliament itself remaining disregarded.

What is fundamentally disturbing however, (even more than the fact of such corruption, whether financial or linked to Rule of Law processes), is the supremely arrogant manner of its occurrence. Not even unconvincing explanations are offered as to why the 17th Amendment to the Constitution is not being implemented or in regard to the continuing debacle that is Mihinair, to take just two examples. Does President Mahinda Rajapaksa believe then that he is above offering such explanations and that (by a natural progression of thought), he is above the very Constitution itself, invoking in that regard the king's crown that his lackeys saw fit to so unbecomingly bestow on him in the immediate post war days?

Perennial abuse of state resources

This pre-election period in fact, offers an ideal opportunity for the President to redeem his past actions and abide by the Elections Commissioner's plea that at least the Elections Commission should be put into place with the concurrence and consultation of political parties and other Presidential candidates. Even if such a gesture may not come to fruition, this will undoubtedly generate a large measure of political goodwill that is sorely lacking at least among a section of the populace towards the current administration.

But then, of course, to do so would be to let slip the stranglehold that is currently being maintained on state resources with their widespread use for party political propaganda. This is undoubtedly a risk that the President is not willing to take. This week's instance of the Commissioner of Elections canceling the IGP's transfer of a superintendent of police who had taken down cutouts of the President on the instructions of the Commissioner himself, is just one instance. Such interventions would have been replicated several times over if an Elections Commission was in place. There is so much, after all, that a single individual acting with the limited powers given to him can do.

An Elections Commission with far reaching powers

All along, the Elections Commissioner had been pleading not only that he be allowed to retire but also that his powers need to be extended and strengthened. The Commissioner may, (using Article 104B(4) of the 17th Amendment, prohibit the use of any movable or immovable property belonging to the State or any public corporation by any candidate, political party or independent group for the purpose of promoting or preventing the election of the above. However, there is only a vague duty on every person or officer in whose custody or control such property lies, to comply with and give effect to such direction.
Earlier drafts of the 17th Amendment criminally penalized any person who contravened or failed or neglected to comply with any direction or order issued by the Commissioner or indeed, any provision of the law relating to elections. The Commissioner was entitled to institute criminal proceedings in the appropriate court.

These safeguards were however removed when this amendment was passed by Parliament. The immediate institution of an Elections Commission with powers going even beyond what is currently prescribed in the 17th Amendment to the Constitution should therefore be of public concern. There is little chance of this happening however according to current political dynamics.

The refusal to put an Elections Commission in place is not, of course, peculiar to this Presidency. It was former President Chandrika Kumaratunge who initially refused to appoint the members of the proposed Elections Commission on the spurious basis that its nominated Chairman had links to the main opposition party. This was a charge considered and rejected by all members of the then existent Constitutional Council, including (ludicrously) her own representative. In this respect, support sought to be extended to Sri Lanka's former Army Commander General Sarath Fonseka by persons such as Kumaratunge as well as her one time ally, former Chief Justice Sarath Silva both renowned more for their subversion of the Constitution rather than their adherence to its provisions may be more damaging support than anything else.

Applying reason to our governance processes

It must be said however that as much as Kumaratunge herself was so resoundingly betrayed by the very people whom she safeguarded and elevated, similar patterns are identifiable in relation to the current Presidency as well. Take the example of the European Commission GSP Plus fiasco which has now resulted in Sri Lanka being denied the renewal of the trade privilege. If some of the measures relating to good governance recommended in earlier warning reports of the European Commission had been implemented by the administration in good faith, it may have been distinctly harder for the trade privilege to have been refused.

Instead, what we saw was shrill propaganda insinuating that the refusal to renew was 'punishment' for prosecuting the war against the LTTE, cocksure refusal to even participate in the deliberations, an unwise reliance on ministers tasked to 'persuade' the Commission to decide in favour of renewal and finally a blindingly amusing threat held out by a former law professor, (now reduced to a walking illustration of the evils inherent in cross over politics), that the Commission would be sued over the non-renewal.

If one could have re-imagined this whole scenario with the calm sagacity of a Lakshman Kadirgamar who refused to bow to international coercion but also made sure that the country could be faulted to the very least extent possible in terms of its compliance to the law, perhaps a very different outcome may have been envisaged.

Adherence to the law, Justice and the Constitution remain outstanding questions before the electorate. In the one case, we have already seen clear contempt for the Constitution and in the other, we have a virtual political unknown who till a short time ago shared the same intensely majoritarian mindset of his Commander-in-Chief. Regardless, his campaign is spurred more by the intense dislike that is currently directed towards the incumbent by racial and religious minorities as well as by segments of the majority rather than by any particular love for the challenger.

Yet perhaps this may well suffice to shake the Presidency and bring a measure of reason back to our governance processes.

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