Columns

It is entirely fitting that, President Ranil Wickremesinghe, while swearing in an obscene number of State Ministers including those who assaulted peaceful protestors at the Galle Face Green on May 9th 2022, had the profound gall to issue a directive this Friday instructing the ‘frugal’ manner in which state funds must be spent.

Insanity of the ship of State

What is ‘frugal’ about appointing all these state ministers when the economy has been destroyed by these very individuals forming part of the administration that brought Sri Lanka to its knees? It would have been ‘frugal’ not to have appointed them in the first instance, quite apart from the fact that some of these worthies should be prosecuted for their thuggery. Veritably this is the insanity that comprises the ship of State in Sri Lanka.

Are these state-ministerships, rewards for their brutish actions perforce? This is to insult the good intelligence of the citizenry, whether the President acts on his will or at the crack of a whip elsewhere. The directive, issued by his Secretary, calls upon secretaries of ministries ‘to make special arrangements for the management of public expenditure’ in view of severe economic difficulties. This is farce at its highest and cruelest extent.

Even as large segments of the population stagger under increased electricity and water bills, the United Nations has reported that we record the second-highest rate of acute malnutrition among children under five in South Asia. At least 17% of children suffer from chronic wasting which can cause death. The focus must be to severely minimise state expenditure and appoint a lean Cabinet consisting of those very few who are not ranked as thugs, murderers or robbers. State funds must be directed to alleviate the plight of the severely affected poor.

The turning of the tables

Instead what we have is the polar opposite.  It is time and more that the President abandons his lip service to a different brand of leadership which his apologists trumpet to the world. The ugly truth is to the contrary. Indeed, one cannot conceive of a more profound turning of the tables as it were when a Rajapaksa scion, the eldest son and heir apparent of the Mahinda Rajapaksa dynasty praises the President for taking ‘tough action’ against Sri Lanka’s young protestors when his uncle could not.

The President must also be called to account for the endless persecution of young Sri Lankans, including nuns and priests who provided support for citizens exercising their right to freedoms of association and expression. President Wickremesinghe has repeatedly held forth on the fact that, due to the actions of a ’violent few’, even the ‘good’ calls of the majority to strengthen governance in Sri Lanka had been pushed to the background. Such pontifications are absurd.

The emergence of violent elements from the agitation when outrage at their political leaders pushed citizens to the streets, was inevitable. By its very nature, the State in Sri Lanka is both violent and coercive. It is the State which spawns violence in reaction to its actions. History has illustrated this truth in the South and the North leading to thousands of lives lost and entire generations decimated. That inevitable cause and effect is what we saw, playing out in the streets of Colombo from May this year.

Toothless constitutional creatures

Using the convenient excuse of ‘young radicals’ to send shivers down the collective spines of the elite is a favourite tactic of politicians. If indeed, violence was manifested on the part of some, the answer to that is not consolidating the corrupt and brutal State which led to protests in the first place.

But that is what we see, most categorically. Constitutionally also, there is little hope. There is a certain distaste in delving deep into these constitutional exercises, given the typical buffoonery that they have become.

Even so, it is difficult to ignore the fact that the Government’s proposed 22nd Amendment to the Constitution is as much a farce as the President’s promises. In simple terms, establishing a toothless creature as the Constitutional Council to ‘mediate’ key appointments to public service, judicial office and the constitutional commissions is neither here nor there. Our experimentation with this body indicates that fact only too well. The 17th Amendment’s Constitutional Council, with its majority being non-politicians, had the best possible opportunity to balance the excessive weight of power reposed in the Executive Presidency.

That first Council tried to do its best but was frustrated at every point by the political establishment. That was evidenced at the start itself, we may recall, when then President Chandrika Kumaratunga refused to appoint a retired Supreme Court judge as Chair of the Elections Commission without sufficient justification. This was despite the Council sending the same name twice on the basis that it saw no good reason to reverse its recommendation.

The hand of the Executive Presidency

Later, the Council was wholesale ignored by former President Mahinda Rajapaksa who refused blithely to appoint members to the Council and later, made his own appointments to the commissions. This was a continuation of that same Presidential horseplay, to put it bluntly. The 18th Amendment did away with the Council wholesale as did the 20th Amendment. In the 19th Amendment, though the Council’s majority was composed of politicians, there were some tentative attempts at preventing Presidential abuse of the process.

One device was to provide for a ‘deeming’ clause, which had the effect of preventing a stultification of the Council process which had taken place under the Kumaratunga and Rajapaksa Presidencies. Thus, the 19th Amendment stipulated that, if the President failed to make the appointments to the Council and to the commissions within fourteen days, those nominees were ‘deemed’ to have been appointed. That constitutional ‘fault switch’ as it were, was brought back in the draft 22nd Amendment.

This is not unreasonably so, one would assume, given that a similar provision had passed the seal of the Court in regard to the 19th Amendment. That complacency has received a rude shock however. In the Supreme Court’s determination on the 22nd Amendment Bill announced by the Speaker recently, that ‘deeming’ provision has been held to violate the ‘executive power of the President.’ The Bench held that this is inconsistent with Article 3 read with Article 4 (b) of the Constitution, requiring it to be passed by a special majority in Parliament as well as by the people at a Referendum.

Forsaking the lessons
of the protests 

Evidently, the Court has answered the question, whether the ‘deeming provision’ makes the President ‘subordinate to the Council’, in the positive. Its reasoning on that point makes it very clear as to where the constitutional balance of power lies. The Court’s thinking was that, ‘the ultimate decision with regard to the appointment of members to the Council must at all times remain with the President, lf it does not so remain, that would amount to a relinquishment of the executive powers of the President.’

Usage of the term ‘relinquishment’ in this context would certainly find a ready quarrel with constitutional scholars and with good reason thereto. The question naturally arises as to whether there was a similar ‘relinquishment’ in the 19th Amendment which contained that very same provision? Definitively, that was not the case.

This and other aspects of this Determination must be discussed with leisure in another space. That apart, Sri Lanka’s political leadership must learn that, by forsaking the lessons that the first wave of protests have taught us, they risk second and third waves of far deadlier agitations.

No one can say that they were not forewarned.