Violating the Constitution Continues From J.R to M.R.

March 10th, 2008

by Dr. A.C. Visvalingam

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, i.e. “to turn a man into a woman or vice versa”, as he himself put it. Towards this objective, he had Article 35 (l) of the Constitution worded as follows by a bunch of sycophantic constitutional lawyers without a protest from even one of his gutless party members: “While 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 1. 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 Rajapaksa 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 “minor” 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 “minor” parties to find a candidate who would be acceptable to all of them. President Rajapaksa 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 lied “Doctrine 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 “minor” parties to nominate the tenth member., and thereafter compiled 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 “minor” 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 Mr. Mayadunne 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: “Please 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 Rajapaksa’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 Rajapaksa 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.

(Dr.Visvalingam is President, Citizens’ Movement for Good Governance)

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