Constitutional games and a nation’s expectations

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19A: The good, the bad and the unknown

Even if we give the most compassionate rendering of the extraordinary sequence of events that served as constitution-making by the Wickremesinghe government during recent weeks, there is much to be perturbed about.

Secrecy to be deplored
However let me follow this up by acknowledging that even the necessity for this discussion would have been redundant in the discordant era of the Rajapaksas. Government parliamentarians would have fallen over themselves in supporting any Bill that was proposed, rather like sheep following a suicidal shepherd plunging over a cliff. On its own part, the public would have been left completely in the dark.

And leaving aside those who willingly colluded with the political command, those Honourable Justices of the Supreme Court having the manifest ill fortune to possess a conscience as well as sit on the Bench hearing the matter would have been in hourly dread of receiving executive instructions on their judicial duties. The 18th Amendment to the Constitution is just one illustrative example.

Granted, these apprehensions are not in force in quite that same way in the present scenario. And the 19th Amendment’s reversal of the 18th Amendment’s ills is wholeheartedly welcomed. Yet the secrecy associated with the 19th Amendment along with the unbelievable contortions displayed in regard to clauses relating to the President’s powers vis a vis the Prime Minister’s executive remit were undeniably disturbing. Flippant as this may be, it was somewhat like watching an episode of Ripley’s Believe it or Not or better still, observing wide eyed, the game of ‘now you see it, now you do not.’ Not exactly good constitution-making, one would say with perfectly good reason.

Predictable judicial thinking
First, the Bill took away the nomenclature of the President as head of Government and negated corollary powers in regard to the ordering of government and the Cabinet, then it restored those powers and then again (dizzily enough) took them away in the main while not specifically stating as to who is head of Government. This may have been one bright spark’s answer to a constitutional conundrum but scarcely passes for certainty in the business of constitutional governance.

This chopping and changing of the Bill even after it had gone before the Court raised eyebrows even as we looked with disdain at ‘Rajapaksa parliamentarians’ and erstwhile Ministers (including a former law professor who stayed mum when every conceivable law in creation was being flouted), suddenly waking up to legal niceties.

In that foreground, the Supreme Court’s determining this week that those clauses of the 19th Amendment relating to the exercise of Presidential executive power by the Prime Minister needed a referendum as well as a two-thirds majority in Parliament was entirely explicable. Indeed, a first year law student would have determined much the same if the query had been put to him or her. This was not a question that had to be tweaked back and forth or disguised in such ungodly shapes and forms as to make the entire constitution-making process questionable if not subjected to deep and dark prodding. It is therefore somewhat of a mystery as to why these clauses were inserted in the first place when the constitutional scheme itself is undeniably clear and precise in what is permitted and what is not. Surely was the Court expected to rule otherwise than what it did?

Maithri_CBKPreventing mistakes of the past
Following precedent meanwhile, the Court also held that the establishing of the Constitutional Council would not affect the entrenched provisions of the Constitution even though this restricted the exercise of Presidential discretion. Interestingly however the Bench appears not to have directed its mind to the 19th Amendment specifying that when the President fails to appoint nominated members of the Council or fails to appoint the Chairperson or members of the constitutional commissions recommended by the Council, such persons so nominated/recommended shall be ‘deemed’ to have been appointed. This further reduces Presidential discretion, going beyond the 17th Amendment in that regard. Nonetheless, this safeguard is necessary from a practical viewpoint, to prevent the negation of the Council similar to what occurred under the Presidencies of both Kumaratunga and Rajapaksa.
But the Court’s ruling that the Election Commission’s power to appoint a Competent Authority to take over a state or private television or broadcasting station on an infringement of the guidelines issued by the Commission needed to be approved at a referendum is somewhat more puzzling. What concerned the judges was that the functions of the Competent Authority were indeterminate, including the lack of provision to challenge the appointment of such an individual.

Yet the 17th Amendment had already contained provision for the appointment of a Competent Authority on much the same lines except that it (rightly) confined the ambit of such an Authority only to erring state electronic media. That said, the Court’s concern this time around stands to the benefit of Sri Lanka’s (private) electronic media given the potential risks that this clause posed in its expanded form as discussed previously in these column spaces.

Correcting a bad impression
In sum, we hope that the 19th Amendment will be passed into law for the collective greater good. But there is no denying that this process of convoluted and confused constitution-making has left a bad impression in the public mind. Mischievous journalists delight in pointing out a stubborn truth to United National Party ministers who, when cornered on ‘yahapalanaya’ omissions and commissions, like to retort by saying that it was worse earlier. This truth is that this Government was voted into power in January 2015 not for them to repeat their predecessor’s sins, albeit to a lesser degree. Neither did the public demand an unrealistic transformation of a degraded system in a political twinkling of an eye as it were.
Rather, what was expected – and rightly so at that, was the elevation of transparent and accountable law making. Has that expectation been met so far by the government?
Assessing this pivotal question in the context of the games that we saw being played in regard to the 19th Amendment, the answer cannot be convincingly affirmed in the positive, try as one might.