Presidential powers and the craving to be

slaves

Sunday, April 26, 2015

It appears that the President of Sri Lanka likes vivid imagery. Not so long ago, he
compared the members of his party to crabs dancing in a boiling pot of water. This
prediction came uncannily true this week when some of these members discarded
even the stipulated parliamentary dress and slept in running shorts on the floor of the
House.
Reflecting calm good sense

The frolicking MPs cast themselves and the House into ridicule in protest over former
President Mahinda Rajapaksa being summoned to the Bribery Commission. But did
these worthies demonstrate even a semblance of similar enthusiasm when, for
example, Sinhalese villagers died in unjustified shootings in Weliweriya, when Tamil
mothers were physically abused by state agents or when the 18th Amendment was
approved with its hideous subversion of the Rule of Law?

In the wake of these antics, President Maithripala Sirisenas address to the nation on
Thursday reflected calm good sense. Particularly pointed was his remembering that
some slaves, after being freed by President of the United States Abraham Lincoln,
could not cope with the unfamiliar taste of their new found freedom and yearned to be
under the yoke of the slave master again rather than fend for themselves.

This was a pointed reference to SLFP parliamentarians gravitating towards the former
President despite the indignities and humiliation that they had suffered under
Rajapaksa-rule.
United opposition against a monstrosity
The self-deprecation with which the President spoke contrasted abruptly with the

bluster associated with the previous regime which still prevails after a brief shocked
hiatus consequent to being ignominiously displaced in January 2015.

Witness therefore the ruffians outside Parliament and the Bribery Commission waving
the Lion Flag minus the coloured stripes that represents Sri Lankas minorities. And
irony of ironies, we saw a Rajapaksa brother, the former Defence Secretary loudly
complaining of injustice even as the defence apparatus that he once ran excelled in
the arbitrary targeting of dissenters. Indeed, former President Mahinda Rajapaksa
himself, despite a weak admission that he had committed mistakes, appears not to
have sufficiently learnt the lessons that the electorate taught him a few months ago.
This is, in effect, the monster raising its head again. Right thinking Sri Lankans should
therefore stand collectively in opposition.

No sanctity attaches to a former President

What precisely is the harassment, pray, regarding the former President being
summoned to the offices of the Bribery and Corruption Commission to record a
statement? To allege that a head of State had committed an illegal act by the offer of a
ministerial portfolio to the oppositions former General Secretary during the election
campaign, (buttressed we hope, by material showing that money changed hands), is
an imaginative but not wholly impossible use of broad definitions of bribery and
corruption in the parent law and the Presidential Elections Act.

That said, this allegation is somewhat frivolous compared to other charges of gross
corruption leveled against the former President and his family. But these matters are
extraneous to the point which is simply that no legal sanctity attaches to a former
President. Quite apart from the popularly termed Waters Edge case (2008) where
former President Chandrika Kumaratunga was held responsible in regard to a corrupt
transaction, this principle has long been upheld by Sri Lankas Supreme Court. In
particular, a retired President who commits a brazen abuse of power is liable before

the law, (Senerath v Kumaratunga, 2005).

Notwithstanding such established precedents, this was a week where the law had little
place. Thus, the Speakers solemn ruling that permission must be required before MPs
are questioned was perfectly proper yet quite irrelevant to the questioning of a former
President.

The Governments contradictory actions

But to condemn Sri Lankas racist and corrupt lunatic fringe does not however, mean
that the United National Party Government must be given a proverbial blank cheque to
do what it wants. This mistake was committed once with the Rajapaksas. It must not
be committed ever again. It is unfortunate therefore that good governance fighters,
media activists and leading voices from the Bar have been co-opted into the
establishment machinery. Regardless, this Government must be sharply critiqued on
worryingly incoherent draft legislation as well as its lackluster performance on
campaign promises.

So, as much as the thirsty pleading for water is rewarded with just one drop, former
Minster Basil Rajapaksa was arrested at the eleventh hour, just before the 100 day
programme lapsed. The distasteful Central Bank bond scam with a committee of
government lawyers apparently whitewashing the Governor is another example.

And the mishmash with the 19th Amendment continues. On Monday, it was discovered
that, following the Supreme Court ruling, additional clauses had been smuggled into
the amendment. One such addition subjects any private broadcasting or telecasting
operator or any proprietor or publisher of a newspaper to a fine and a maximum of
three years imprisonment upon indictment before the High Court, if the guidelines
issued by the Elections Commission are infringed without reasonable cause.

This had been inserted into the 19th Amendment draft consequent to the
Determination of the Supreme Court. As such, it has not been subjected to judicial
review assessing its constitutionality and amounts to a surreptitious insertion invoking
public concern. For a Government purportedly committed to media freedom, imposing
penal consequences on the private media in such circumstances is certainly bizarre.

The paradox that Sri Lanka faces

In sum, an unenviable paradox faces Sri Lanka after a decade of degenerative
authoritarianism. On the eve of a crucial vote on the 19th Amendment, numerous
appeals have been issued to President Sirisena urging the use of executive power to
bring both his rumbustious party and unruly elements of the Government to order.

So in the same breath as crying for the abolition of the executive presidency, we also
demand swift presidential intervention to correct a chaotic political process. Despite
this pressure, the Presidents determination to refrain from excessive use of the
executive powers vested in his Office is clear.
Even with all the tumult ringing noisily in our ears, one cannot but admire the restraint
thus displayed.
Posted by Thavam