Air power - govt's trump card

President courts impeachment over Constitutional Council

By Ranjith Jayasundera

It is now becoming clear that President Rajapakse is stalling the appointment of the Constitutional Council for no other reason than to maintain his illegal control over appointments to key positions.

For since the beginning of his term, Rajapakse had the pleasure of blaming the delay on minority parties, due to the JVP and TNA being unable to agree on a nominee. But the unanimous approval by the minority parties on Former Auditor General, S.C. Mayadunne, has turned that excuse on its head.

Despite written reminders from Speaker W.J.M. Lokubandara and UNP MP John Amaratunga, as well as pressure exerted by several civil groups and political parties, the President is mum on the reason for the continued delay.

Reasons

There are at least two inviting reasons for the President to delay the appointment of the council. Both the post of Commissioner General of Inland Revenue and Parliament Secretary General are up for review in the coming weeks. Both appointments legally come under the Constitutional Council.

The President has already expressed his staunch backing for current Inland Revenue Commissioner General, A. Wijayapala who has been scathed in the Public Accounting Committee (PAC) report to parliament for his alleged role in the multi-billion rupee VAT scandal.

The plain independence of incumbent Parliament Secretary General, Priyani Wijesekera is also a cause for concern, as there have already been rumblings from the government that they seek to replace her with someone outside the system, bypassing the next in line for the job by parliamentary tradition.

There is already fear within the Inland Revenue Department that the President will seek to secure the department through one of his many men. The Sunday Leader is in possession of a joint-letter sent by several senior officials of the department to Treasury Secretary, P.B. Jayasundera. They highlighted the catastrophe that came out of the illegal appointment of the current Commissioner General, and expressed fear that things could get worse in the department.

Collapse

"If seniority is to be disregarded as expressed recently by the Commissioner General of Inland Revenue, and appointments are to be made on your recommendations to this post, it would create a situation similar to what you observed on an earlier occasion, but with a higher magnitude de-stabilising the institution. It is emphasised that any move to deviate from policy would affect the whole mission of the institution and end up with the collapse of the administration, which we believe cannot be afforded at this juncture."

This letter was sent on January 1, 2008 to Jayasundera, who is yet to reply the senior officials, despite the prospect of chaos at the country's primary revenue collection body. In parliament too, there is a great sense of discomfort and discontent at the prospect of the central government spreading its tentacles to that august institution.

Presidential control

There is no gainsaying that the country has seen little benefit from having the Police Department and most public institutions in the hands of the President's men, and there is little enthusiasm from the few institutions that remain at least somewhat untainted, to have Rajapakse control in their departments.

His personal power trip aside, what the President fails to understand is that all the appointments that he makes in violation of the constitution are liable to be challenged in the Supreme Court. Article 41C of the Constitution plainly reads: "No person shall be appointed by the President to any of the offices specified in the Schedule to this Article, unless such appointment has been approved by the Council upon a recommendation made to the Council by the President."

The appointments covered by the schedule to this chapter are the chief justice and judges of the Supreme Court, president and the judges of the Court of Appeal, members of the Judicial Service Commission other than the chairman, the attorney-general, auditor-general, inspector-general of police, the parliamentary commissioner for administration (ombudsman) and the secretary-general of parliament.

There is no contingency in the constitution for failure by the President to appoint the Constitutional Council. At the very least, the validity of these appointments could be challenged in the Supreme Court, a prospect that could impede these crucial officials in carrying out their duties.

Skating on this ice

For the appointments he has made up to date, Rajapakse will at least have a moral excuse, in that the council had not been nominated for appointment. However, now that the council has been fully nominated by the parties concerned, the President is skating on thin ice, should he make any appointments bypassing the council, as it can be argued that he is committing an impeachable offence by making appointments in violation of the constitution.

But the fact of the matter is, the President knows full well, upon appointment of the council, his family style of governance will have gone for a six. Once the 10 member council is appointed, it will in turn appoint several commissions: the Elections Commission, Public Service Commission, National Police Commission, Human Rights Commission, Bribery Commission, Finance Commission and Delimitation Commission.

By taking these institutions one by one, and analysing their function, it can be easily understood why the President would never appoint the Constitutional Council should he have his way. First and quite frighteningly, let us take the Elections Commission.

Vital appointments

The public is familiar with Elections Commissioner, Dayananda Dissanayake, and few would have forgotten his appeal upon giving the green light to Rajapakse's 2005 presidential victory. Dissanayake begged that he be allowed to retire. Constitutionally, this is impossible. Without the appointment of the Constitutional Council, Dayananda Dissanayake will remain the Commissioner of Elections, even if, God forbid, he were to be confined to a hospital bed and on his last throes.

The only way for him to be replaced constitutionally is by the council with the appointment of the Independent Elections Commission. Should the incumbent commissioner tragically perish, Sri Lanka cannot hold elections, and this could lead to a constitutional crisis.

The CC also appoints the Public Service Commission, which is charged with approving nearly all public service appointments, promotions, and disciplinary actions, barring the few that are appointed by the CC itself and other slight exceptions.

Constitutional power

The Public Service Commission would have the constitutional power to take disciplinary action against, for example, ministry secretaries that stray across their boundaries - a power that is currently not in anyone's hands, and would likely make Defence Secretary, Gotabaya Rajapakse shiver in his Colonels' boots.

The National Police Commission, once appointed by the CC, would take charge of all promotions, appointments and disciplinary actions in the Police Department, including the now politically notorious CID. Gone would be the days of police officers being answerable to politicians and their cronies.

The Asian Human Rights Commission, in a sharp statement dated February 11, chastised the government for not implementing the 17th Amendment to the Constitution by appointing the CC, and in their statement drew particular attention to the National Police Commission.

"The National Police Commission (NPC) which was appointed on the basis of the 17th Amendment functioned up to 2005. During the short period of its functioning there were considerable developments within the police force creating greater security in the officers of various ranks that their destinies will not be decided by politicians who exercise arbitrary power over them. Had the NPC continued the initial achievements of its first three years the police service would have considerably improved. Then there would have been a greater possibility that this virtually collapsed institution may have started to rebuild itself and develop its capacity to enforce law and order within the country."

Deliberate move

The same statement accuses "the Rajapakse regime which now rules" of scuttling the Constitutional Council in a "deliberate move as the schemes of power manipulation and the ever-increasing corruption was incompatible with the existence of a Constitutional Council which was independent and mandated to ensure the selection of persons on merit."

The Human Rights Commission has already been a bastion of drama. This commission is special in that it was born out of several international conventions ratified by Sri Lanka, and is a member of the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC), a democratic assembly of similar independent government agencies around the world that are charged with working together to protect human rights across the globe.

Downgraded

The ICC voted last December to downgrade Sri Lanka's National Human Rights Commission from voting full member status, to mere observer status. In the international body's observations, they stated the Sri Lankan HRC was not "balanced, objective, and non-political, particularly with regard to the discontinuation of follow-up to 2,000 cases of disappearances in July 2006."

Their second concern in downgrading the Sri Lankan commission was that its members were not appointed in accordance with Sri Lankan law. As a reminder to the public, President Rajapakse arbitrarily appointed members to the Human Rights Commission in April and May 2006, who then moved swiftly to scuttle investigations into over 2,000 complaints received, citing solidarity with the government to prevent the Treasury from having to pay out compensation to the aggrieved.

The resignation of well respected members - Sunila Abeysekera, Nimalka Fernando, Deepika Udugama and Rohan Edrisinha from the commission in October 2007, followed by the December 2007 ICC downgrading, signalled the death knell for this public commission as well.

The Bribery Commission, charged with impartially investigating corruption allegations completely independent of any branch of the executive government, has now become a joke. Just one month ago, the government moved to transfer the Bribery Commission's Asset Division Head, C.A. Premashantha out of the commission without stating any grounds whatsoever. Premashantha refuted the move and went to court seeking a stay order against the transfer. That stay order he was granted last week on February 19, and it came a day before a request came from the President for Bribery Commission Director General Piyasena Ranasinghe to resign from his post.

Forced out

Ranasinghe was appointed to the Bribery Commission during the term of President Chandrika Kumaratunga . When he refused on February 18 to resign, he received a letter on February 19 informing him that he had been "transferred" to the Presidential Secretariat. This is effectively like informing a senior school teacher in charge of discipline that he has been transferred to the 10th grade - to be a student.

Such hanky-panky would have been stopped dead in its tracks if the Constitutional Council had been appointed by the President. If the President fails to appoint the CC, and instead goes ahead to arbitrarily and illegally make appointments to parliament and the Inland Revenue Department, without letting such appointments follow due process, parliament would have an obligation to act.

Joint call

The UNP, JVP, SLMC, SLFP (M), TNA and several other opposition parties, having all called for the appointment of the Constitutional Council in the case of the President failing to appoint the CC, may well seek legal redress on the prospect of impeaching the President for failure to appoint the chosen members to the defunct body.

We have already highlighted that Article 41C of the Constitution forbids the appointment of any person without being "approved by the (Constitutional) Council." It does not get any simpler. Article 38  (2) (a) of the Constitution deals with the reasons for which the President can be impeached by parliament.

The very first of these is Article 38 (2) (a) (i) which states that the President can be impeached for "intentional violation of the constitution." Such a resolution if signed by half the sitting members of parliament and endorsed by the Speaker, would have to be entertained by the Supreme Court.

Speaker W.J.M. Lokubandara would be hard pressed not to approve such a motion given that he personally wrote to President Rajapakse on January 10, urging the appointment of the CC without further delay.

The JVP too would have to concoct an elaborate fairy tale for its dwindling voter base, should they choose to protect the President once again, given that they are criticising the government over the staggering cost of living and rampant corruption. The JVP conveniently forgets that they are responsible for rescuing the government from certain doom last December 14, 2007 by allowing it to pass the annual budget and continue with this catastrophe.

box

A telling indictment on the government

A Statement by the Asian Human Rights Commission

A fatal blow to Sri Lanka's Bribery Commission

While the 17th Amendment to the Constitution is being ridiculed by the government the reasons for the fear of the appointment of the Constitutional Council and the independent commissions has been confirmed in the most recent incident of the transfer of the Director General of the Bribery Commission with the obvious intent to stop the filing of indictments by the commission and to subvert the work of the commission altogether.

The Asian Human Rights Commission has for a long period pointed out that the criminal justice system in Sri Lanka is being suspended in order to ensure impunity for those who are abusing power. The simple formula that the government is working on is this: stop investigations and get rid of independent prosecutors to ensure our survival.

In an unprecedented but not surprising move, Piyasena Ranasinghe, Director General (DG) of the Commission to Investigate Allegations of Bribery and Corruption (Bribery Commission) has been requested by the President to resign from the post. When he declined, the next day, he was transferred to the Presidential Secretariat without any specific function and an acting DG was appointed in his place.

The following are some relevant matters for consideration:

Mr. Ranasinghe was appointed by the previous President following Section 16 of the Act, which states thus:

Section 16 (1) states: The President may, in consultation with the members of the Commission, appoint a Director General for the prevention of Bribery and Corruption to assist the Commission in the discharge of the functions assigned to the Commissions by this Act.

There are no provisions to remove him but under interpretations of the ordinance, the appointing authority may remove him by following the same procedure. In any event, there cannot be an arbitrary removal without following due process in the event of disciplinary action being taken. There does not seem to be any charge sheet or even preliminary investigation against him. Nor has there been any decision by the Commission to remove him. This is therefore an arbitrary act of the President. In any event, the Commission is a closed service and permanent appointees cannot be transferred to any other place.

The DG was transferred to the Presidential Secretarial by the President's letter dated 19-2-2008. Ms. Luxmi Jayawickrama, a deputy DG was appointed as Acting DG. There is however a more senior officer, Ms. Mallika Liyanage who was not appointed to act in that position. It is noteworthy that no indictments on bribery charges may be filed in the future until a permanent DG is appointed. The reason being that that under Section 12 only the DG can sign indictments and there is no provision to appoint an acting DG or for an Acting DG to sign indictments.

At present there are many sensitive investigations ongoing. These include investigations arising from the COPE report as well as those relating to the MiG deal which is about the purchase of obsolete fighter planes.

A month ago, the officer in charge of the Asset Division (Mr. C.A. Premashantha, a police officer seconded to the Bribery Commission) was transferred out of the commission without any prior consultation. This was challenged by the officer and a stay order from the court was obtained on 19-2-2008. On the same day, the DG was transferred.

The transfer of the DG is basically an extremely damaging and irreversible precedent and no inquiry can be independently conducted by the Commission hereafter without the threat of officers being transferred. The whole idea of an independent commission is being scorned and ridiculed.

The Rajapakse regime wants to make Sri Lanka a place in which the law does not exist. In every area of life law is being suspended and the investigations into crimes, particularly those involving agents of the state are being prevented completely. This takes place within a framework where there is unprecedented corruption and abuse of power. The central problem to be faced in the country is as to how the local people and the international community can stop.

Batti's 'in-house' election

By Amantha Perera

These are images that jump out of a local tele drama, or a poorly budgeted movie. The TMVP's very unique method of coercion to stand at the elections has led to some quite comical situations.

The UTHR last week reported of the painter Ravi who goes to work with two constables, after entering the fray as a TMVP candidate. There is the other story of the fish-seller in the market, selling fish with police escort.

"We heard the story of one candidate, a fisherman, who now sells fish in the market with two police guards," Rukshan Fernando of the Colombo based Law and Society Trust said last week after a brief visit to Batti. There was also the story of another who was fishing in the lagoon while his two police guards stood on the shores, that however was unconfirmed. So was the story of the bootlegger, who found his daily income drastically dropping after he too was forced to stand and got two constables of his own.

Assorted mix

The TMVP had made sure that the prominent and the not so prominent in Batti make up their nomination list along with its members. "Many of the candidates are people who actually don't have any education or experience in managing local councils if they are elected," Fernando said. With the TMVP clear front runners, this does not bode well for the internal workings of the local authorities, once duly elected.

It gets even more macabre - the fate of an abducted child or a husband now may depend on who votes from whom.

"I heard that the TMVP had told some people whose children and relatives had been forcibly recruited that they would be released if they voted for them. We heard the story of at least one brave women who responded to that saying  'Return my husband you abducted before you ask for my vote'," as Fernando put it.

Know better

In Batti, they have begun to refer to the polls as an 'in-house' affair, as most of the parties in the running are allies one way or the other, or are connected with the government like the on paper rivals TMVP and the EPDP.

Despite reports by monitors, especially those filed by PAFFREL suggesting the situation may be calming down, others who know Batti intimately are not so optimistic.

"But from what I heard, not many Batti residents are hopeful as the monitors. Who might know better? In my view, from what has happened so far, the election can never be free and fair - even if there is zero violence from today onwards, on the day of the elections and after the elections," Fernando said.

But there is no denying that the elections have effected  a sense of calm, the TMVP does not run around armed to the teeth, they have become subtler and aware of what public perception could mean.

Improvement

"As an outsider who is not from Batti, but deeply fascinated by the people of Batti and its natural beauty, I yearn to hear the sounds of the singing fish again, instead of the desperate cries of its people. In my last trip, for a change, I was glad not to hear sounds of shelling and gun fire. I hope and hope this is not the 'calm before the storm'," Fernando said.

"I was also glad to hear from many friends that the security forces, the police and even the armed TMVP seemed to be behaving better in the last few days. And that the TMVP doesn't flaunt arms in the open these days. This certainly was the first time since 2007 that I didn't see any boys as tall as the guns they carry, out in the open, including next to security forces camps."

He says that Batti could care less about the elections. But they have to deal with it. It dished out so many special dishes of late, it gave us Karuna and then dumped him for Pillayan. It still has am IDP problem and large areas remain inaccessible to any outsider. 

And now we wait till it delivers the most unusual of elections.