Constitutional crisis Provincial power-grab, potshots at the judiciary, and contrived

The Island, October 6, 2012, 5:23 pm 

by Rajan Philips

Believe it or not, Sri Lanka is facing a grave constitutional and governance crisis. I am not saying this, government supporters are. According to them, the 13th Amendment has checkmated the all-powerful Rajapaksa government. The government cannot eradicate poverty because 13A wouldn’t let it. The government cannot protect the environment because 13A stands in the way. It cannot undertake national development the way Basil Rajapaksa wants to because under 13A he requires provincial consent. All India’s fault, say pundits, because it foisted 13A on unsuspecting Lanka to prevent Lankan governments lifting the lives of poor people out of poverty. The fancied paranoia goes further.

The Executive cannot execute because the judiciary is not being cooperative. The Supreme Court had the nerve to send back the Divineguma Bill to Kotte saying it needed consent from the Provincial Councils. The government does not know how much to budget for the judiciary because the Chief Justice did not show up in person at Temple Trees to say how much the judiciary needs. Never mind the government doesn’t want to hear anything about how much the striking university teachers want not only for themselves but also for all the students in the country who cannot go private or overseas. They can go to hell, might say the government. But to the government’s chagrin, the Mahanayakes have embraced the FUTA.

There is a new Ministerial Committee to see what’s going on in the Judicial Services Commission but no such committee for the goings on in the University Grants Commission and other educational bodies. In case you did not know, the Minister of Justice (Rauf Hakeem) is not part of the ‘judicial’ ministerial committee, nor is the ex-law-professor and Minister of Foreign Affairs (GL Peiris) who was apparently taken to task by the President for wrongful advice about the judiciary.

The old socialist firebrand from Galle has reportedly warned his Cabinet colleagues to beware of foreign hands behind the murmurs in the judiciary. Dialectics has given way to clairvoyance. No suggestion yet from anyone in government that the FUTA is being funded by the CIA! There is a pattern in the government paranoia about power and a method in its madness about control. But there is no defined and defensible purpose or goal that is to be served by this relentless pursuit of power and the maniacal hunger for control. The handling of the three recent Provincial elections, the urge to pass the Divineguma Bill, and the potshots at the judiciary are all part of the power paranoia and control madness without any redeeming qualification by way of some higher purpose or national goal.

White elephant and 
Rogue elephant

It has been argued umpteen times by numerous pundits that the Provincial Council system is a huge white elephant. What they forget is that there is a much bigger and more damaging rogue elephant roaming the country – the central government which for all intents and purposes is also the Rajapaksa regime. The three Provincial Council elections held in September were an affront to democracy, and not its affirmation, perpetrated by the regime. The elections confirmed that Provincial Councils in Sri Lanka are not autonomous or power sharing bodies but convenient branch plants of the central government in a system of internal political colonialism.

The PCs are not concurrent and coordinate jurisdictions as in a federal system, but are constitutionally and legally the creations of the centre and extremely subordinated entities in Sri Lanka’s uniquely unitary system. I say uniquely, because the verbal characterization of the state as a unitary state is unique to Sri Lanka’s constitution. It is public knowledge now that this characterization that started in 1972 was not based on any universal or historic principle or wisdom but was the result of the obstinate idiosyncrasy of one individual – Felix Dias, against the better advice of better people. One would only hope that jurists and legal scholars will take note of this ‘satanic’ virus (for the benefit of younger readers: Dr. NM Perera used to call Felix Dias, Satan, and SJV Chelvanayakam who was a good friend of Felix’s father observed that the son had no standards) that has infected our constitutional thought and led to highly restrictive and even emotional assertions of the unitary character of the Sri Lankan state.

The colonial connotation partly stems from the scholarly identification (e.g. Lakshman Marasinghe) of the Provincial Governor in the PC system as being modeled on the British colonial Governor, later Governor General. The colonial Governor was appointed by, was answerable to, and held office at the pleasure of the British monarch. The Provincial Governor is appointed by, is answerable to, and holds office at the pleasure of the President. After independence, the tradition was established that in regard to the Governor General, the monarch will always act on the advice of the elected Prime Minister. There is no such tradition in the Provincial Council system in Sri Lanka. On the contrary, even the Provincial Chief Minister is appointed by the President. This travesty is not a constitutional requirement but a political reality.

Put another way, the PCs are thoroughly circumscribed at two levels: one constitutional/legal, and the other political. The national political parties, and in the case of the ruling political party, the President, control every detail of the provincial elections for their parties. The appointment of candidates and, after the elections, the appointment of the Chief Minister and other ministers are all directed from Colombo. The elected Provincial Councillors are not allowed to meet and elect their own Chief Minister, but they have to follow directions from Colombo. The voters should rightly ask why bother to put them through the hassle and expense of a provincial election if all it means is to end up with puppets whose strings are pulled from Colombo.

The farce of this system was exposed in the North Central Province, where a central government minister had to resign to allow his brother to be appointed as Chief Minister by the president in keeping with nepotism rules of the UPFA, which apply only to some families not all families in the UPFA. The Colombo ruling family got its due comeuppance when the new NCP Council delivered a stunning embarrassment by rejecting the official nominee for the post of the Council Chairman. The tragedy of the system, on the other hand, is being played out in the Eastern Province.

The hung results of the Eastern PC election were the result of widespread electoral abuses. Without them the UPFA would not have got its slender majority. Even so, the regime had the opportunity to be magnanimous and let a more inclusive Provincial National government come into being in the Eastern Province. That would have been reflective of the social plurality of the province and the results in the election. More importantly, it would have provided a hopeful foundation and framework for the heavy weather work of national reconciliation. No such magnanimity from Colombo, which doled out only machinations. A cabinet subcommittee was entrusted with designing and implementing machinations which totally overwhelmed the supine SLMC and neatly isolated the troublesome TNA.

I have barely touched on the constitutional and political constraints to the ostensible working of the PC system. The administrative and financial constraints are just as vast and deep. My plea to the pundits is to give at least some attention to the rogue that is the central government elephant while carping about the whiteness of the provincial elephants. In fact, if they are honest and intelligent and one needs to be both to be credible among serious people, they will direct all their fire at the centre and centre alone. Sadly, however, this is wishful thinking on my part for it is already evident that the pundits have become suckers again for the government over the Divineguma power grab.

Provincial power grab and potshots at the judiciary

I have said this before, if the Rajapaksa regime does not like 13A and the PC system, it should proceed to dismantle both. It has all the powers to do that and all the crooked means to win a referendum if one is needed. But it is unlikely to act honestly for two reasons. First, it wants to use the PCs for its own sinister purposes, and not for its intended purposes. The intended purposes are: (a) ethnic reconciliation and participatory and efficient government in the Northern and Eastern Provinces; and (b) participatory and efficient government in the remaining seven Provinces. Second, it will not dismantle them because it will not be able handle the backlash from abroad. Not just the West and India, even China will not buy into the abolition of the PC system. One of the often unmentioned reasons for the change of heart in the Burmese Junta was the quiet distancing away of China from the excesses of the Junta. In sum, the Rajapaksa regime will keep 13A and the PC system and use them to its advantage.

The controversial Divineguma Bill is the most blatant exercise in having the provincial cake and eating it. Suffice it to say, the bill if it passes into law will tip over the Provincial Councils from their current state of ineffectiveness to a permanent state of irrelevance. The bill serves no other purpose than the arrogant assumption that a few people in a ruling family have all the answers to all the problems in the state and the country. This was not strictly true even in the most primitive kingdom, and is hardly the method of governance in a modern and complicated society. The only meaningful resistance to this power grab has come from the Supreme Court, and therein lies the rub between the Executive and the Judiciary. The other branch, the Legislature, has along with the Leader of the Opposition gone to sleep.

What the Supreme Court did, it had to do. By a straightforward interpretation of the Constitution, the Court held that the bill requires assent from all the Provincial Councils. An Executive that has grown accustomed over thirty years to having its way, whether despite the constitution or in defiance of the constitution, tends to get annoyed when it has the book thrown at it. The reported shenanigans targeting the judiciary are unbecoming and unworthy of any branch of government in a civilized society. It is not the fault of the judiciary if politicians have appointed less than inspiring people to the courts. But when the judiciary, regardless of the individual judges, expresses an opinion, the opinion has to be respected even if it is controversial.

But the push back from the judiciary on the Divineguma Bill is not an insurmountable obstacle. Given the composition of the eight Provincial Councils, it is almost a foregone conclusion that the government will have its way in every one of them including the Eastern Province. The latter has the potential to reject the bill, but it is very, very unlikely to do so. The SLMC leader will shed tears over his moral dilemma, for the second time in two years, and instruct his Councillors to vote for the bill. Any defeat in Eastern PC will tantamount to a political tsunami.

There is, however, a potential legal and constitutional tsunami brewing over the status of the Northern Province which has a Governor, but not an elected Council. The question is if the NP Governor can give assent to the Divineguma Bill when the Province does not have an elected Provincial Council. The matter is already before the Supreme Court, courtesy of an injunction filed by the TNA in the Court of Appeal. While awaiting legal arguments and the Court’s verdict, it needs to be stated that morally and politically the government should delay the bill until it holds elections in the Northern Province and leave it to the new Council to vote on the bill. Anything less will be an imposition of internal-colonial rule on the Northern Province through the President’s Governor. The healthiest resolution would be for the government to send the bill to the shredder.