What next after 22-A?
By N Sathiya Moorthy
Now that Parliament has passed the 22nd Amendment, which would be incorporated into the Constitution as the 21st Amendment, the question arises what way should and would the nation and the polity travel from here. The answer is simple: Nowhere and as everywhere, as they used to do before the current Amendment, before the Aragalaya protests.
SJB Leader of the Opposition Sajith Premadasa conferred credit on the Aragalaya for 22-A. They could actually claim credit when and only when Parliament legislates better against corruption and defection, the bane of any democracy or any polity, particularly Sri Lanka. Corruption means not just political corruption but also refers to a corrupt and dishonest bureaucracy, including the police brass across the board. They as they could set at naught any effective law that Parliament legislates to end corruption, whatever be the latter’s motive and compulsion.
It is sad that the nation wants to believe that ‘independent commissions’ are the sole way out, as 22-A has brought them back after the previous government of President Gotabaya Rajapaksa had set it at naught through 20-A after 19-A of the Maithri-Ranil dispensation (2015-19) had restored it, which in turn had…. The story is long, but the fact is that the restoration of 19-A did not stop anything, as the spirit of the amendment was believed to do. That belief continues, so would the negative fall-outs, though unintended, even after 22-A.
Effectiveness of authority
The success or failure of any administrative scheme is linked to the effectiveness of the authority at the top. The ‘independent commissions’ had given away the inherent authority of the Executive, a directly-elected President, to an alien scheme. So, the failure, if any, of the scheme should lie with the independent commissions, and not the elected President, or the government or Parliament – and not certainly the Supreme Court that had cleared it, in principle.
It is sad that in their euphoria to get through with 22-A as their success story, the present government of President Ranil Wickremesinghe, and his Justice Minister Wijayadasa Rajapakshe, a veteran lawyer himself, overlooked even the recent lessons. Hence they failed to incorporate suitable changes to the law when re-introduced now. The reference is to the case of then President Maithripala Sirisena’s inability to sack or suspend Inspector-General (IG) of Police Pujith Jayasundara, the nation’s top cop, for alleged failures of communication, guidance and leadership, over the ‘Easter blasts case’ in 2019 – only because the latter was chosen by the independent commission of the day.
The question was/is not about whether Jayasundara was in the wrong, and culpably so, but for a higher, appointing authority, not to have powers to rectify a wrong decision. The law did not provide for review or recall mechanisms even by the independent commission concerned. With the result, Jayasundara continued as IG even after being forced to go on leave. His effective successor had to go around with the unbecoming title of ‘Acting IG’.
It is another matter that the higher-ups swung into action to the other extreme then and later, to arrest Jayasundara and the then defence secretary Hemasiri Fernando in the ‘blasts case’. They have since filed a charge-sheet against them in an appropriate court.
It is not about ‘dereliction of duty’, which is an ‘administrative offence’, if made out, but for a criminal offence of causing death of Easter blast victims. The two have taken up the matter to the Supreme Court through a fundamental rights petition, and it remains to be seen if the land’s highest judicial forum rules that the two could be prosecuted in the matter.
The long and short of the story is that spirit of the ‘independent commissions’ has not served in times of administrative and constitutional crises. Yet, the government did not think of safeguards for alleged victims (like Jayasundara and Fernando) and/or for the President acting as the Executive and also the appointing authority when there was a need to intervene, as in this case, even if to soften public sentiments, which might have no legal basis.
The simple question arose at the time…what if Jayasundara refused to yield to what was only political pressure, for him to go on leave when he did? ‘Zilch’ is the answer. To that extent, the independent commissions under 22-A will continue to be seen as being effective until they faced challenges, old or new. Or, re-visit the entire scheme with honesty of purpose, which the political class lacks.
Hence, this exercise serves no real purpose, as even passing on the burden flowing from flawed decisions to the independent commissions would ultimately lie at the gate of the political class. They would this time work on a joint cover-up, involving the Opposition, too, if it became necessary – as they are the collective authority to choose those commissioners.
Rajapaksas in focus
The media that reported how Basil Rajapaksa has lost out on the re-introduction of the ban on dual-citizens making it to elected positions, starting with Parliament, also mentioned how Mahinda Rajapaksa abstained but Chamal and Namal voted for the amendment. That way, not only was a Rajapaksa in Basil remained the focus of a part of 22-A, but others too were sought after for their voting preferences on the same.
It may be a coincidence that Mahinda Rajapaksa launched his post-resignation re-entry into politics days prior to the Parliament vote on 22-A, but the ‘Basil clause’ should also bring back to memory how the mischief of 19-A to deny the Rajapaksas every chance to return to power early, failed in Elections-2019. The 19-A, supposedly the brainchild of Wickremesinghe, now President and then Prime Minister, withdrew the third-time chance for the likes of Mahinda (and technically CBK, too), denied elected positions to ‘dual citizens’ like Basil, and upped the presidential age to 35 from 30, to keep Namal away.
But the rulers of the day made it happen, and the Rajapaksas were back with a popular mandate, despite all the family-centric constitutional hurdles placed in their path. That included the host of corruption cases lavished against Gota, Basil and Namal, and despite they being put in prison, as if to tell the voters that the Maithri-Ranil duo had fulfilled that part of their mandate.
It stopped there, because new ministers like Rajitha Senaratne had upped the ante even when they had left the Rajapaksas just ahead of the 2015 elections, but could not deliver on the promise of bringing back all the ill-gotten Rajapaksa wealth from foreign banks (which possibly never existed, unless proved otherwise, now!). Today, hopefully, the corruption cases filed against Gota, and for which the Supreme Court has granted prima facie approval, should do the trick in a way acceptable to jurisprudential laws and practices.
Co-habitation govt, again?
Today, the nation is actually at the cross-roads worse than ever in the past. Parliament, including the multi-party Opposition, has left the 20-A clause that empowered the President to dissolve Parliament after two and half years, against the original four-and-half-years under 19-A, in tact. Come March, and the Opposition can be expected to pressure President Ranil to dissolve Parliament and order fresh elections to Parliament early on – full two and half years before the five-year term ended.
The Rajapaksas did not quiver at the continuance of the provision but they know that Ranil cannot risk his position that he could obtain only through indirect means by ordering fresh parliamentary elections and have a Sajith-led government possibly in place, for the remainder of his term, which ends only in 2024. As one-time Prime Minister, Ranil knows better than anyone else what ‘cohabitation government’ of the kind that he had led under President Chandrika Bandaranaike Kumaratunga, 2001-04, and how he had insulted the high office…
If someone needed to stoke the nation’s memory, Eric Solheim, the Norwegian peace facilitator in the LTTE era, was in Colombo recently, in the supposedly new role as Environmental Advisor to the President. Whatever be the truth of it, PHU leader Udaya Gammanpilla has claimed that Solheim was a failure in his two-year term, heading an UN agency on environment, given to him ‘because of massive Norwegian funding’.
Solheim’s visit reminded the nation of how Ranil as PM had insulted the presidential office by keeping CBK out of the loop on the LTTE negotiations, and so did peace-facilitator Solheim. The armed forces felt cheated time and again, by the political bosses. That meant when Mahinda became President in 2005 by defeating Ranil by a slender margin, he had the armed forces on his side when his half-hearted attempts at peace-building with the LTTE through Norway failed, and war became inevitable. The results were there for the whole world, hence Sri Lanka, too, to see!
(The writer is a policy analyst & commentator, based in Chennai, India. Email: firstname.lastname@example.org)