A fraud on the Constitution, this!

A fraud on the Constitution, this!

By N Sathiya Moorthy

The current dispute between President Ranil Wickremesinghe on the one side, and the political Opposition and also a section of the so-called civil society over the third and fourth extensions granted to the nation’s police chief C D Wickremaratne flies on the face of past practices since 2000 but with a five-year break from 2010. That’s after Wickremesinghe dismissed the Constitution Council (CC) that shot down his recommendation for granting such extensions to the incumbent IG.

In doing so, Wickremesinghe has in reality violated the provision that he had brought in once as Prime Minister in 2000, and then brought back twice – as Prime Minister in 2015 and as President in October last year. In between, the intervening regime of President Mahinda Rajapaksa had replaced the CC with a Parliamentary Council with near-similar powers in 2010. His brother and later-day President, Gotabaya Rajapaksa dissolved the CC restored by Ranil as PM under President Maithripala Sirisena (2015-19) in 2020.

Yet, now, citing the Supreme Court’s determination on the 17th Amendment dating back to 20-plus years, Wickremesinghe has argued that the CC is only an arm of the Executive, and did not have independent existence as commonly believed and understood. The implication was that all the fanfare and reverence attaching to the repeated restoration of the CC through the 19th and 21st amendments to the Constitution were only about a recommendatory body at best.

By over-ruling the CC’s recommendation not to grant the IG the third and fourth extensions of service, the incumbent has proved twice in the past weeks it was after all so, and he had the powers to over-rule it at will, without even offering any explanation on either occasion. It is ironical that all those busy-bodies who rush to the Supreme Court have interestingly not done so on this one issue – the powers of the CC viz those of the Executive President.

Anomalies galore

Whether it is the CC now or the Parliamentary Council for a time, the body was entrusted with powers to choose appropriate persona to don the roles of the Judges of the Supreme Court Justices and also those holding top Executive positions like the IGP. Originally, there was the long, long wait for ‘smaller parties’ to name their common representative on the CC since 2000, as the TNA and the JVP both demanded the position. Hence the CC could not be constituted for it to function. It was a farce played on the Constitution, knowing full well the anticipated positions of these two parties.

Then, there was /is the anomaly about the CC’s powers to sack such nominated officers. The Constitution has separate provisions for dismissing Judges of the Supreme Court. The President can appoint them, CC or no CC, but they can be sacked only through an impeachment vote, requiring two-thirds vote in Parliament. It is a safety-valve that the Founding Fathers included in the Constitution at inception, to ensure that political bosses do not try to influence or threaten Justices of the Supreme Court, which is the ubiquitous watch-dog of the Constitution in a democracy. Or, such was the belief / fear.

So, the CC does not have any role in sacking Supreme Court Justices. Not even the President, the appointing authority, if one went by Ranil’s argument that the CC functioned as a part of the Executive, hence under the President.

You thus had the second Mahinda regime removing then Chief Justice Shirani Bandaranayake through an impeachment motion in Parliament in 2013, over-ruling the verdicts of the Supreme Court, and later the civil court. As if to prove a point, as all-powerful PM in the successor regime of President Sirisena, Wickremesinghe was party to the mockery of restoring Shirani Bandaranayake as CJ for a day.

Given the mood of the nation, no one questioned the wisdom or propriety of re-appointing an impeached CJ back in the position, even if for a day. In the case of war-time army chief Sarrath Fonseka, who had been court-martialled under the Mahinda regime, again on corruption charges, cashiered and humiliated for the sake of humiliation, the Sirisena-Ranil created him the country’s first and only Field Marshal.

Neither had Parliament apologising to them for the wrong that might have been committed to them. Just as no Government has apologised to the Tamils for the sufferings and losses the innocents among them had to undergo through three decades of armed conflict with the LTTE.

No powers for President

In the case of other top posts like that of the IG, a former holder of the high office, Punith Jayasundara became more powerful than his President Sirisena, when the latter wanted to remove him for the lapses in the ‘Easter bomb blasts’ in April 2019. Sirisena was told that he did not have powers to sack the IG, who otherwise worked under him, as per the constitutional powers vested in the President.

When Sirisena then asked him to submit his resignation, Jayasundara came close to thumbing his nose at the highest office of the land. He would not quit, and he did not quit. Yet, when the Supreme Court was seized of culpability / failure in the matter, the Justices handed down heavy penalties on the former IG. That they did not spare President Sirisena does not exonerate the IG. Hence, Sirisena as President was after all not morally wrong in wanting Jayasundara’s removal.

Under common law practices, it is the appointing authority that has the powers to sack an employee. In the case of the President of the country, those powers become sacrosanct. It is even more in the case of an Executive President, directly elected by the people. The idea of a CC or a Parliamentary Council to select those that the President should appoint to those top posts is fraught with contradictions.

It is also unlike the selection of civil servants, doctors and teachers. Their recruitments too go through selection boards, whose members are experienced experts in the respective fields. Unless he is a (practising) lawyer, say, a President’s Counsel like TNA’s M A Sumanthiran, a CC member is deemed not to have expertise to evaluate the qualifications and qualities of a prospective Supreme Court Justice.  The same applies to the choice of the CJI. The same applies to ex-police officers from an appropriate level when the CC is tasked to select an IG.

Original sin

Now, Ranil wants the CC decision or recommendation denying extensions to IG Wickremaratne to go to a Parliament Select Committee. Leaving aside the legality and constitutionality of it all until the court is moved and it clarifies the position, the Government side, given its parliamentary majority, will have the numbers on its side. As long as Ranil is on the right side of the Rajapaksas,one more time, he will have the vote the way he wants – and not just once.

The alternative would be for someone to move the court before the Government side voluntarily constitutes a parliamentary select committee for the purpose, here and now. Even without it, there is the need to seek clarification about the Supreme Court’s determination on the 17th Amendment as applicable to the CC, on the lines claimed by Ranil, himself a lawyer.

Better still, if Parliament or the Opposition is serious about vetting appointees to high posts, including Supreme Court Justices, IG, et al, the nation could adopt the full American scheme of House panels having open or closed-door questioning of President’s nominee for particular posts, and then vote on them, both at the panel stage and in the full House.  Yes, the credibility of Parliament as an institution and MPs as individuals will be under test with each such appointment – and like with CJ Bandaranayake’s impeachment, such votes could ‘expose’ wrong-doers to the voters, day in and day out.

If that kind of vetting or selection has to be done by a panel like the CC, it can only be a panel of experts in the respective field, say, retired Supreme Court Justices and former attorneys-general and solicitors-general, for the selection of new Justices.

Yet, members of those panels too cannot escape open charges, or at least whisper-campaigns about their suitability and/or personal biases, starting with their own post-retirement political alignment and ideological commitment.

Going back to the original sin, nay, original question, if the Ranil had known and understood the Supreme Court’s determination on the 17th Amendment as applicable to CC, did he believe that the whole nation, and all MPs and political party leaders were equally aware of it all that he did not have to talk about it then as now. Alternatively, do other MPs, political party leaders, civil society activists and media persons with a legal background knew about what Ranil is saying all along, and also believed it to be so – and not as otherwise commonly understood by the larger citizenry?

The question begs an answer, here and now…. Will any of the worthies, starting with the President stand up and open up a debate that at least should be as honest as it could be informative and educative!

(The writer is a Policy Analyst & Political Commentator, based in Chennai, India. Email: sathiyam54@nsathiyamoorthy.com)


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