Some weeks ago, this column likened the performance of the Sirisena Presidency and the Wickremesinghe Government to the proverbial curate’s egg in the colloquial meaning of that term; good in some parts but demonstrably less so in others.   A ‘yahapalanaya’ scandal But fifty days into what should have been the euphoric honeymoon phase, its [...]


A constitutional curate’s egg


Some weeks ago, this column likened the performance of the Sirisena Presidency and the Wickremesinghe Government to the proverbial curate’s egg in the colloquial meaning of that term; good in some parts but demonstrably less so in others.


A ‘yahapalanaya’ scandal
But fifty days into what should have been the euphoric honeymoon phase, its ‘yahapalanaya’ image has increasingly suffered over new financial scandals, particularly in relation to a highly controversial allegation of profit-making preferential treatment being accorded to a primary dealer with close ties to ruling financial and political elites.


Even worse than the original scandal was the manner and composition of the committee appointed to investigate the matter by the Government, comprising party lawyers who lack the professional skill and the experience to undertake an inquiry of such complexity. The casual manner in which this problem is sought to be disposed of by ‘yahapalanaya’ ministers handling finance and economic affairs is not reassuring.
Indeed, this is a bizarre situation. This is what we see in a context where the President stands aloof while handing over the reins of government to his Prime Minister even though the President possesses the ability to wield full executive power. If so, one must confess to some trepidation as to what would prevail when such powers are stripped away to all intents and purposes by the proposed 19th Amendment. This is not to argue for the retention of the Executive Presidency in all its overwhelming power but to question as to whether the balance thereof between the Head of State and Head of Government may be more judiciously preserved.


Judicial preservation of the constitutional balance
So the constitutional curate’s egg of the proposed 19th Amendment needs to be examined with this thought in mind. Of particular concern are the recommended modes of removal of the President. One proposal is to delete the present parliamentary procedure on the finding of the physical or mental infirmity of an incumbent President and substitute thereof removal of the President by a unanimous determination to that effect, made by a committee comprising the Prime Minister, the Speaker and the Chief Justice. The possibility of abuse in this provision is self-evident.


Other clauses are more positive. Thus salutary provision exists to prevent a deadlock when the President fails to abide by his or her constitutional duty to appoint nominated members of the Council. If so, the persons so nominated shall be ‘deemed’ to have been appointed. A similar provision is inserted where the President fails to abide by the recommendation of the Council and appoint the Chairperson or members of the constitutional commissions. However, the possibility of a deadlock between the President and the Council in regard to appointments of persons to key positions, including the Chief Justice, in the event of non-approval by the Council of the President’s recommendation, still remains to be addressed.


These are not simple matters. Under the 17th Amendment, we saw how an obdurate Presidency or indeed, an obstinate Council can render the whole process nugatory. This was first seen when the Chandrika Kumaratunga Presidency refused to appoint the Chairman of the Elections Commission as recommended by the Constitutional Council. Ultimately the Council stood ridiculed through this unpleasant butting of metaphorical heads and was dispensed with altogether by Kumaratunga’s successor, former President Mahinda Rajapaksa.


Exposing the fallacy of abolition of presidential immunity
That said, this loudly trumpeted claim by the Government that presidential immunity has been taken away by the 19th Amendment must be exposed in full. This is far from the case. Last week it was observed that it beggars the imagination as to why the immunity of the President has been tamely reduced only to permit fundamental rights challenges, despite commendable reasoning of the Supreme Court establishing a link between writ jurisdiction and fundamental rights jurisdiction.

In any event, fundamental rights actions, by virtue of their constitutional nature, are restricted both substantially as well as procedurally. As legal practitioners are well aware for example, challenges to Bills infringing constitutional governance have failed before the Supreme Court on numerous occasions. This is due to inability to bring obnoxious clauses within the narrow ambit of fundamental rights violations, notwithstanding strenuous efforts of counsel. This limited relaxation of immunity should therefore not be allowed to masquerade as a great advance on what existed before.

The rationale and purpose behind this miserly concession is truly bewildering.

Powers of the Elections Commissioner
This dissonance prevails throughout. A recommendation from an earlier draft of the 17th Amendment (which was dropped during its passing in Parliament in 2001) providing for the criminal conviction of a public officer who fails to comply with a direction issued by the Elections Commissioner is brought back by the proposed 19th Amendment. But the empowering of the Commission to appoint a Competent Authority to take over such television or broadcasting station if the guidelines issued by the Commissioner are infringed raises critical questions.


Certainly the private media should be held to a specific standard of fairness during election. That said, the rationale for regulating the private media differs conceptually from the state media which is run on public funds and is strictly accountable. A qualification has been inserted that such action of the Commission will not apply where the private media declares its support for a particular party or candidate. Quite apart from this qualification trespassing on the obligation of the private media to espouse independent views, will this suffice to guard against the possibility of abuse where, for example, a partisan Elections Commission wields power in accordance with the dictates of ruling party politicians? Given our torrid history, such an eventuality is surely not beyond the bounds of possibility despite ‘independent’ commissions?


Punishing political arrogance
It is naive to think that concern in regard to constitutional dilemmas and financial scandals only affect city voters. On the contrary, the downfall of former President Mahinda Rajapaksa should surely teach us that political complacency and arrogance beyond ‘bread and butter’ issues will be punished by an electorate which has greatly matured in its response.

This Government needs to take that lesson seriously to heart.

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