Draconian.
Dictatorial. Authoritarian. Hitler-like. These are the words that were
used when Gotabaya Rajaakssa first announced the decision to contest,
throughout the election campaign and even now, as he approaches one year
in office.
Interestingly, the Colombot twitterati
understandably disappointed by the fact that their outcome preferences
did not materialize, are the chief purveyors of this characterization.
They were dead silent when the 19th Amendment was proposed, tinkered
with (while giving the Supreme Court the proverbial finger) and passed
with a) absolute disdain for established parliamentary procedure, and b)
full of partisan content. It was a classic case of how constitutional
amendment should not be done. And yet, they talk of the 20th Amendment,
recently passed, as though it essentially repealed the 19th and reverted
to the arrangement brought about by the 18th.
No mention of term
limits being retained. Nothing on the Right to Information Act being
retained. The non-issue of auditing processes has been raised. The SC
ruling on the many objections they've raised is ignored. And yet, it’s
draconian, dictatorial, authoritarian and Hitler-like. To support this
incredible thesis, they bring up the doing away of the Constitutional
Council and replacing it with a Parliamentary Council, mandated to do
the same job, essentially overseeing appointments to various independent
commissions. This, they tell us, will make the RTI useless. This would
wreck the independence of the 'independent commissions' (which, they
won't tell you, weren't independent at all but were chock full of party
loyalists).
Alright, what did the Constitutional Council do with
respect to judicial appointments? Did the Constitutional Council, as
required by the constitution develop guidelines for appointments and
have these ratified by Parliament? No. What was said at the time was
that the rules formulated by the Commission headed by Dr A R B
Amarasinghe under the 17th Amendment would be used. Were they used? No.
It was essentially a matter of the Constitutional Council
rubber-stamping the choices of the then Prime Minister Ranil
Wickremesinghe.
We had seniority being brushed aside to promote
loyalists from the lower courts or else shift people from the Attorney
General’s Department. Did the aforementioned twitterati cry foul? No.
Did the Constitutional Council offer any justification for the
recommendations made? No. In fact the Constitutional Council, in those
five years, made a mockery of the very spirit in which it was
established, at least in word since ‘deed’ was marked by rank
incompetence and partisan intent.
Contrast all this with the
names that President Gotabaya Rajapaksa has recommended to be appointed
to the Supreme Court: Dilip Nawaz, Kumudini Wickremasinghe, Shiran
Goonaratne, Mahinda Samayawardena, Achala Wengappuli and Janak De Silva.
They are the most senior judges outside of the Supreme Court. Most of
them have had impeccable records in judicial practice unlike some of the
beneficiaries of yahapalana largesse. This is a revert to meritocracy
and a move to fulfill a long-felt need.
Is it because of the
20th? Well, yes and no. Yes, because the 20th has empowered the
president. However, the president could very well have done, say, a
Ranil Wickremesinghe in this instance. The Parliamentary Council which,
unlike the Constitutional Council, is accountable to the people, would
have probably gone along. As things stand, practically speaking, it is
unlikely that the Parliamentary Council would go against the president’s
wishes in this matter, for two reasons. One, because of the political
affiliation of the majority of members. This is not a good thing. Two,
because, I would be silly at this point to object to an affirmation of
meritocracy. That is a good thing but at best a fortuitous situation.
Ideally, the Parliamentary Council should come up with definite
procedural rules regarding all appointments.
Ideally, these
rules should completely separate the Attorney General’s Department from
the courts. That’s something for those drafting the new constitution to
think about. Let me elaborate.
Consider the following questions:
Check the career paths of the last 10 Chief Justices — how many of them
held the position of Attorney General? Who appointed them? What was
their track record in the AG’s Department in cases where high ranking
politicians were involved? What kind of determinations did they give
when opinion on constitutional matters was sought? How did they perform
when they held the office of Chief Justice?
We have a situation
where the AG’s Department is a veritable half-way house for those who
aspire to serve in the Supreme Court. This can be correct. It cannot be
impossible to set up systems where law students well versed in all
aspects of the law can, if they so wish and satisfy relevant criteria
can either choose to represent clients or hear cases. Such systems could
have inbuilt mechanisms that facilitate acquisition of knowledge and
relevant experience. The Colombot twitterati, could go to town on the
British system in this regard. They didn’t during the yahapalana days
and they are unlikely to do so now.
For now, however, we have
an unprecedented and indeed against the grain (as per the preferred
narrative of the president’s detractors) statement of purpose. Gotabaya
Rajapaksa has waived the power to do what his predecessors have done,
i.e. fill the Supreme Court with buddies, either from the Appellate
Court or from the AG’s Department. He has, instead, clearly reaffirmed
the importance of power-separation and indicated beyond all shadow of
doubt that the independence of the judiciary is important to him.
He
is insisting on meritocracy and now the onus will be on the President
to apply the principle across the board. It’s about formulating
guidelines for appointment and promotion. The Parliamentary Council can
do this and moreover a new constitution could give direction as well —
it would be a big step forward in ridding the country of the vile
culture of buddy-administration.
Now. Let’s shout out to the
Colombots. Will you raise a cheer for Gotabaya Rajapaksa for correcting
the horrible and indeed deliberate mistakes of your friends in the
yahapalana government, the boys and girls who wine and dine with you?
Will you now say ‘adey….this man is making us look like bloody
fools…damn it, he’s making our guys in the Constitutional Council look
like the morons and political lackeys that we never wanted to admit but
they were but instead disguised them as saints…maybe pinning the ‘Civil
Society’ badge was a mistake because they tossed it into the Diyawanna
forthwith…’
So, okay, Mr President, good move. Good, but not
enough. Let’s see meritocracy institutionalized. Good start but you have
quite a ways to go still. As for your detractors, poor souls, maybe
this will teach them a thing or two and even make them flip the pages of
the American Heritage Dictionary for the meanings of the following
words such as dictator, dictatorial, autocrat, authoritarian and
draconian. Good luck to them!
malindasenevi@gmail.com
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