Mar 28

One does not have to be a theist to recall and appreciate the words of the great Greek dramatist Euripides, who wrote 2400 years ago: AThose whom God wishes to destroy, he first drives mad.  We ourselves think that, if Euripides had lived in recent times, he would have replaced the last four words with Ahe first makes drunk with power.

Almost unlimited power without accountability is what drove Jean-Bedel Bokassa to anoint himself Emperor of the Central African Republic, while enjoying the delectable flavours of human flesh.  Idi Amin of Uganda called himself Athe King of Scotland and was responsible for the deaths of more than 300,000 of his fellow citizens.  Inter alia, he had his Chief Justice killed and stuffed in the boot of a car and his favorite wife dismembered.  Mobutu Sese Seko of Zaire (now the Democratic Republic of Congo) robbed his country of billions of dollars and left it in such a state that, subsequently, internecine wars have caused the death of over five million people.  Like them, there have been many other dictators all over the world (such as Doc Duvalier of Haiti, who practised voodoo and uncounted brutalities) and are remembered with utter disgust for the lawlessness of their regimes and the complete  abandon with which they rode rough-shod over the civic and human rights of the people of their countries.  They were all hailed as good leaders at the beginning of their political careers but the unchecked power they wielded later made them increasingly corrupt and cruel.

A contribution from the Citizens’ Movement for Good Governance (CIMOGG) was published in three newspapers over the period 23 June to 4 July 2006.  It ended with the words: AIt would then be but a small step before some loyalist proposes that Sri Lanka should revert to a monarchical system of government, keeping in mind the blanket immunity that the President is already supposed to enjoy, to do whatever he wishes with our lives, liberty and possessions.  It was, therefore, no great surprise to see a recent full-page advertisement in which our First Lady is referred to, in all seriousness, as AThe Queen, from where it would be only a small step to find that AHis Excellency becomes outdated and would have to be replaced with AHis Majesty.  The most interesting development that would occur would be the appointment of the ALord High Executioner.  Few of us would have any difficulty in guessing that the post would go to a certain crude, high profile media-hater.

Seven years ago, under pressure from the Organisation of Professional Associations (OPA), Parliament realised that there was an overwhelming need to limit the potential that the 1978 Constitution possesses to encourage our Presidents to become short-sighted dictators.  We doubt whether any of our MPs had Idi Amin, Bokassa, Mobutu, Duvalier and others of the same ilk in mind when they voted for the 17th Amendment.  All the same, the 17th Amendment, despite a few shortcomings, was passed unanimously by Parliament in 2001.  This piece of legislation provides certain essential checks and balances on all arms of the State, particularly the President, to restrain them from acting in a manner that would tend to undermine the independence of the fragile machinery of administration.  Whether our politicians like it or not, this Amendment is an integral part of the Constitution, which they have taken a solemn oath to uphold and protect.  And that, they must do.

Considering that Parliament has now been rendered largely ineffective by the practice of ministerial positions and privileges being given to those who were willing to abandon shamelessly and dishonestly the political programmes which got them elected originally, we are left with little choice but to call upon our more influential religious leaders of this country, particularly the Mahanayakes of the Asgiriya and Malwatte Chapters, who unquestionably have great, unutilised political clout, to use their position of prestige and authority to help reverse the dreadful trend towards undiluted despotism and the total disregard for public opinion and the public interest that we are witnessing today.  CIMOGG calls upon these exalted religious dignitaries, to whom the vast majority of the population looks for moral leadership, to take urgent action to protect this country from wilful violations of the Constitution by the President, and those who covertly and overtly assist in the process.  A strong and clear joint statement by the Mahanayakes, to the effect that the Constitution must be obeyed as it is and that it may be amended only in accordance with the provisions contained therein, and that the Rule of Law must be restored, would go a long way to reassure the disempowered people of this country that good sense will prevail against short-term political and personal interests.

Mar 13

We see periodically in the newspapers advertisements inserted by embassies and high commissions calling upon their citizens who happen to be in Sri Lanka to register themselves so as to be able to cast their votes at these missions for elections held in their mother countries.  In contrast, Sri Lanka, which has well over a million of its passport holders working, studying or residing temporarily in other countries, has not made any serious attempt that we are aware of to do likewise, despite the importance given to the franchise in Article 3 of our Constitution.

It is well understood that restoring voting rights to expatriate Sri Lankans would be a complex exercise and would almost certainly not achieve anything close to the ideal 100 per cent coverage, on account of some adverse factors including numerous unlawful or inhuman restrictions to which many of our overseas workers are subject.  Even so, achieving partial coverage would be better than violating the rights of each and all of our citizens in this vast reservoir of voters.  Indeed, it could be argued that we could live with such limitations during the time that would be required to make adequate improvements to our election systems – for it is, after all, not too long ago that 400,000 or more of our fellow citizens were deprived of their voting rights at the last Presidential election without the ensuing result being declared null and void.

Overseas voting could be similar to postal voting, spread over a couple of weeks, so that no major logistical problems need be encountered by the voters, who should be free, within certain limits, to choose the date and time for submitting their sealed votes.

As many of our embassies are headed by political appointees, it would be imperative for the voting to be overseen by qualified personnel appointed by independent bodies experienced in election monitoring work, such as PAFFREL.

Rather than Are-inventing the wheel, advice could be readily obtained on how to go about this entire exercise from the many foreign missions here which are used to organising this kind of voting for elections to their own legislatures.

Our expatriates, particularly workers, make extremely important contributions, both towards reducing unemployment in this country and increasing our foreign earnings.  They deserve better than to be deprived of their voting rights.

Mar 05

President Jayewardene fathered the 1978 Constitution.  He saw to it that, as President, he would be endowed with all powers other than to carry out sex changes, ie. Ato turn a man into a woman or vice versa, as he himself put it.  Towards this objective, he had Article 35(1) of the Constitution worded as follows by a bunch of sycophantic constitutional lawyers without a protest from even one of his gutless party members:  AWhile any person holds office as President, no proceedings shall be instituted or continued against him in any court or tribunal in respect of anything done or omitted to be done by him either in his official or private capacity.  These lawyers and party members, cringing before President Jayewardene, failed to add a few vital words to protect the sovereignty of the People, namely, to the effect that any unconstitutional or unlawful acts of the President could be challenged and set aside, when justified, without his having to appear personally in the Courts.  By their pusillanimity, those who acquiesced in giving this unlimited legal cover to their then President set the stage firmly for permanent one-man rule in this so-called democratic country.

Successive Presidents unscrupulously exploited their powers under the 1978 Constitution to satisfy their highly personal agendas, creating serious apprehensions in the minds of concerned citizens.  One of the most obnoxious misuses of these powers is the practice of appointing or promoting relatives, friends, business associates and even those with strong criminal connections to positions of authority and fiscal responsibility.  Another is the undervaluing and disposal of the Country’s assets to cronies and rogue businessmen.  The third is the collection of enormous bribes connected with the award of major tenders of various kinds, including arms and other military purchases.  Misemploying government resources, including the media, to distort electoral processes is a fourth substantial domain of malfeasance.  The resulting lack of anything resembling good governance has had a destructive effect in every sphere of national life.

In the year 2000, a proactive group within the 35,000-strong Organisation of Professional Associations (OPA) decided that something should be done to cut down the misapplication of political power to foster abuses such as those referred to above.  As a first step, the OPA drafted an amendment to the Constitution that would go some way to seeing that only capable and honest persons would be appointed to all important State posts.  This initiative was strongly resisted by many in Parliament but the JVP decided to back it and, to the surprise of all concerned, Parliament unanimously passed the 17th Amendment to the Constitution in 2001.  It was a rather watered-down version of the OPA proposal but was, nevertheless, a giant step forward.  On its part, Parliament preferred that there should be a 10-member Constitutional Council (CC) of persons of integrity and distinction but that it (the CC) should be made up in the following manner:  The Speaker would be Chairman; the Prime Minister and the Leader of the Opposition would be ex officio members, and would also jointly recommend five members to the CC; the President would appoint the ninth member; the tenth member was to be recommended jointly by all those parties in Parliament who do not belong either to the party of the Prime Minister or the party of the Leader of the Opposition.

No problem was encountered in constituting the first CC in 2002 even though one member resigned not very long thereafter because of what was seen to be a potential conflict of interests.  As the quorum is only six, the CC continued to function without its full complement of ten members.  It was able to recommend for appointment by the President many persons of good repute and distinction to the Public Service Commission, the Police Commission and so on, but President Kumaratunga thought nothing of violating the Constitution when she refused to appoint members to the Elections Commission because she objected to one of the names that were recommended, even though she did not have any right to do so.  Consequently, we continue to endure a situation where the amiable Mr Dayananda Dissanayake carries on as Elections Commissioner even after he managed to extract a public nod from President Rajapakse years ago to allow him to retire – a promise that remains unfulfilled to this day.

Once the term of a majority of the members of the first CC came to an end, and whilst a few of them were still members (owing to some later substitutions), steps were initiated to appoint new members to it; but no finality was achieved because the JVP, TNA, SLMC and other Aminor parties could not agree on who should be the tenth member.  Despite much urging by worried citizens over the past two years and more, neither the President nor the Prime Minister nor the Speaker nor the Leader of the Opposition took the slightest interest in trying to persuade the Aminor parties to find a candidate who would be acceptable to all of them.  President Rajapakse has made full use of this conveniently unresolved impasse to pack the various Commissions which come under the aegis of the CC with persons whom he has personally selected, their main qualification being their expected willingness to do whatever the President wants them to do.

It has been reported that he has relied on the so-called ADoctrine of Necessity to justify the multitude of appointments he has made.  He would have done far less damage to the Constitution if he had relied on this doctrine only to appoint the tenth member of the CC and let all other subsidiary appointments be made in strict accordance with the 17th Amendment.  Better still, he could have called upon the OPA to use its good offices to act as a facilitator to get the Aminor parties to nominate the tenth member, and thereafter complied with the Constitution.

Spurred by the democracy-threatening lack of interest shown by the President and the ex-officio members of the CC, the OPA had to take upon itself to do what those leaders could and should have done, but did not.  The OPA managed many weeks ago to persuade the Aminor parties to agree to the candidature of Mr S.C.Mayadunne, former Auditor General, who is a man of acknowledged integrity and distinction.  However, Mr Jeyaraj Fernandopulle MP has attacked the nomination of Mr Mayadunne on the ground of an alleged conflict of interests that would be faced by him (Mr Mayadunne), if he were appointed to the Constitutional Council.  Mr Fernandopulle’s views on MrMayadunne ring absolutely hollow in the light of his (Mr Fernandopulle’s) own admission that he, together with the vast majority of MPs, have broken the law blatantly and repeatedly in selling their duty-free car permits every five years or so – hardly describable as honourable behaviour.  Making it much worse was his outrageous proposal that this illegal practice should be made legal, presumably retrospectively and for the future, perverting the whole purpose for which MPs and others in government service have been given this duty-free concession at great cost to the public.  In refreshing contrast, Mr Mayadunne has agreed to give up any activity of his that would be in conflict with his proposed membership of the Constitutional Council, making a potentially huge financial sacrifice in so doing.  For Mr Fernandopulle to acquire the moral right to pontificate adversely on Mr Mayadunne’s suitability, he should, however belatedly, refund to the State the unlawful gains made by him by selling his car permits.

Those who want to see that the 17th Amendment remains unimplemented, have put forward the self-serving and fraudulent excuse that this amendment requires to be improved before it is reactivated.  The Citizens’ Movement for Good Governance (CIMOGG) is one of the many institutions and individuals who have recommended over the past three years and more that the 17th Amendment be refined in due course but not at the cost of violating the Constitution in the interim.  No one is entitled to break a law merely because he thinks that particular law needs to be revised.  The President, just as any citizen, has no licence to act in defiance of the Constitution as it stands at any given moment.  Strangely, it appears that the President wants to implement parts of the 13th Amendment, which he opposed so vehemently twenty years ago, saying now that it is part of the Constitution and should, consequently, not be violated!

The highly respected Congress of Religions has joined its voice recently to those calling upon the President to get the CC appointed and functioning without any further delay.  In effect, what they are saying is: APlease comply; then complain and amend.  It is deplorable that the President prefers not to honour the very Constitution that he promised to uphold when he took his oath of office.

In any event, the 17th Amendment should not be modified to suit the present  government’s interests alone but our national interests as a whole.  The amendments it requires should be looked into with inputs from the many individuals and organisations which have made representations on this subject.

Mr Fernandopulle, in another of his absurd observations, has stated that he saw nothing wrong in the possibility that a self-confessed cheat, claiming a historical lineage and academic qualifications of the most doubtful provenance, might be appointed to the CC.  With this kind of attitude, we would not be surprised, when President Rajapakse’s term of office is over, to see Mr Fernandopulle proposing that this cheat, with his claimed superior ancestry and scholastic achievements, should be the next presidential candidate of the People’s Alliance.

The continued violation of the 17th Amendment has destroyed all semblance of democracy, good governance and respect for the Rule of Law.  It is time that President Rajapakse reflects on his actions and those of his government, and their long-term effect on the national institutions of this country.  He needs to pull us back forthwith from the brink over which we are poised to descend precipitously into lawless dictatorship.