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Adding insult to a very deep constitutional injury
Published Date: 10/10/2017 (Tuesday)

By: Kishali Pinto Jayawardena

Sneaky strategies adopted by the Government to smuggle hasty amendments to the Provincial Councils Elections (Amendment) Act at the committee stage so as to transform that Amendment into an entirely strange creature altogether must be condemned, strongly and categorically.

A nightmare becomes real
Such wily tricks on the part of those in political power are not unknown to us. Previous Governments also attempted to twist Bills employing this device. Anxious care was taken when Bills were constitutionally challenged in the past therefore to ensure that no committee stage amendments were brought in later so as to reverse judicial rulings already made.

In the mid 199O’s when the Supreme Court took its constitutional role of checking executive and legislative excesses with due solemnity, I recall perturbed conversations following the Court’s jurisdiction being invoked, as to what preventive action could be taken if, in fact, entire sets of committee stage amendments were passed bypassing public scrutiny. At that point, the dangers were intermittent. None involved pasting entirely different amendments to a Bill of a much different character. Now it appears as if this nightmare has indeed become real, ironically under the seal of the ‘yahapalanaya’ (good governance) administration.

In this instance, the exercise is both blatant and unscrupulous so as to circumvent a recent ruling of the Court. It effects amendments (totally unrelated to the initial Amendment) which interalia, results in the postponement of provincial polls. This is certainly not a feat that this Government should be proud of. More than a decade ago, it had been sternly warned by the Court that the power given to the Commissioner of Elections to determine the date of polls is not merely symbolic. It is a substantive power and must be exercised independently. That reasoning holds true even now.

This is not responsible law making
Surely these dubious machinations could not have been intended when Prime Minister Ranil Wickremesinghe, enveloped rosily in the 2015 election euphoria, promised that Parliament would return to responsible law making. Yet what is happening now is exactly the converse of what was promised. In the first instance, Sri Lanka allows only for judicial review of Bills rather than scrutiny of unconstitutional laws. This is the very anti-thesis of a democratic process. Advocates had long been fighting for this to be changed. Denying even that slim window of opportunity for public challenge by a devious tactic of committee stage amendments is adding insult to a very deep constitutional injury.

It also exposes the 19th Amendment to be farcical in its avowed objective of reversing past constitutional degradations. And in a context where the legislative process is instrumentally subverted, how can discussions on reform of the Constitution take place with any credibility, I may ask with reason? It beggars the imagination as to how good citizens of Colombo who flock with delight to seminars and discussions on constitutional reform can afford to look away when this flouting of the legislative mandate takes place. On the contrary, these honourable gentlemen and gentlewomen should hang their heads in shame, if shame is indeed an emotion that is still experienced. Out there and beyond the artificial comfort of the ‘Colombo bubble’ Sri Lanka voters grasp precisely what is going on. And their displeasure is great, make no mistake about that.

Let us take the facts. Here was an Amendment which was unimpeachable at first blush, relating to a minimum quota for women candidates. It attracted no critical scrutiny. Then the Government had the brazen effrontery to take the Bill and use it to stare down a decision of the Court which decided, on a constitutional interpretation of relevant provisions, that Parliament cannot extend the term of provincial councils without the approval of the people at a referendum and a two-thirds majority in the House as the franchise was affected. No doubt, this exercise is an insult to the very campaign for a quota for women candidates given the casual and contemptuous use of a long needed corrective for a very different purpose.

Setting a disastrous  precedent
Some have attempted to defend this on the apparent logic that the amendments were progressive on the whole and that therefore, the means of passing them should be winked at. But this is most unacceptable reasoning. It is exactly the same rationale in play when a Chief Justice was removed from his seat by a letter of the President weeks after the 2015 election victory, cheered on by the Bar and other sundry groups. Certainly the profound unsuitability of this gentleman to occupy that seat had been well proven during the Rajapaksa period, as observed trenchantly in these column spaces.

However, the means employed to eject him from that seat set a disastrous precedent. At the time, it caused many of us, including this columnist, to look askance at contradictions between ‘yahapalanaya’ rhetoric and the reality. Now these contradictions have become so problematic so as to impact on the very integrity of the unity alliance, to the dismay of all those who hoped for a genuine change in 2015.

Of course, the hypocrisy of Rajapaksa loyalists in their dancing on political platforms and leveling shots at the subversion of the Amendment is palpable. These characters can scarce afford to talk of democracy when they were responsible for the violation of every single norm in the rule book. Equally, those who have taken upon themselves to file a legal challenge to the amendments, were responsible for chaos and political controversy during their tenure in office. Talk of interventions in the ‘public interest’ in these contexts must be taken with more than the proverbial pinch of salt. Regardless however, the issue must be distanced from personalities, good or bad as they may be.

Bitter lessons forthcoming  in the future
In sum, there is little doubt that bitter lessons will be taught to those who imprudently gamble with constitutional imperatives. History teaches this to very good effect. The postponement of provincial polls will not accomplish anything very much. It will only postpone the inevitable. Where the popular mandate is concerned and if that hope in 2015 to be captured anew, the Government must look to changing its own dynamic with the people. Its badly battered financial probity must be restored. Democratically cancerous tactics of effecting committee stage amendments to change the basic structure of a proposed amendment must be abandoned.

In the default, grand talk of constitutional reforms makes little sense.

Source: The Sunday Times

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