Is Mahinda Rajapakse The State?

President Mahinda Rajapakse, even though he is fond of posing off as a 'village boy,' is now exhibiting the hauteur of French monarchs like Louis XIV who proclaimed: L'Etat cest moi - I am the state.

All political parties - save for the President's own party which is remaining silent and the UNP defectors - most of the well known civic and religious organisations such as the Organisation of Professional Associations (OPA) and the Congress of Religions that include heads of all religions organisations, are strongly appealing to the President to re-activate the Constitutional Council (CC) which is paralysed because of the failure of the President to make an appointment to this council. But President Rajapakse is prevaricating. He is holding on to the excuse that a parliamentary select committee is now deliberating on the 17th Amendment to the Constitution and that the reactivation of the CC would have to await the report of this select committee.

In a pathetic display of rank political opportunism, the UNP defectors who joined the government promising good governance are deafeningly silent on the issue with the one time godfather of the independent commissions, Karu Jayasuriya by his decision to stick with the President on the issue proving to the country he is nothing more than a cheap political bounder who will betray the people as he did Ranil Wickremesinghe for a mess of political pottage.

The devotion of the President to parliamentary etiquette can be appreciated but is also laughable - recall the way the report of the Select Committee on Public Enterprises (COPE) that investigated the working of state owned public enterprises was treated. The COPE report which would have embarrassed those close to the seats of power was ignored and the Chairman of COPE, Wijedasa Rajapakshe, who was a minister of the government resigned from the chairmanship in sheer disgust.

The President who is also a lawyer should know that there is no justification whatsoever to stall the appointment of the Constitutional Council based on a downright stupid excuse that he is awaiting the Select Committee findings. The fact remains that the 17th Amendment to the Constitution is part of the law of the land and there is no moral or legal justification for its suspension pending the outcome of a Select Committee proceeding which can go on indefinitely.

Going by the President's logic if a Select Committee is mooted to take a fresh look at the Penal Code of the country, is the criminal law of the country to be suspended until such time the Select Committee submits its findings? Come on Percy, even you should know that such a proposition is laughable. It is therefore patently obvious that the President who is suffering from delusions of grandeur wants the 17th Amendment to the Constitution suspended to enable him to appoint political lackeys to key positions in the Police, Public Service and the Judiciary so that he can carry on in his merry dictatorial way. It is not without significance that even members of the judiciary have voiced their concerns over possible parachutists taking up key judicial appointments.

The strong appeals made by civic organisations across the spectrum of society and their appeal for immediate reactivation of the CC are an indication they suspect that the move is being deliberately stalled. The CC could clip the wings of power of the Executive Presidency. President Rajapakse and his chief advisors who are his brothers then can't govern the country on the basis that it is their family heirloom but be guided by the principal law of the country, the constitution.

Mahinda Rajapakse need not be tutored in the law having spent long years at the Law College as a student. He is not well known as a legal practitioner but has been a legislator for a long time enacting the laws of this country. He knows the importance of implementing vital laws of the country for good governance and that even in a primitive society; tribal chiefs have to abide by their basic laws.

The 17th Amendment was enacted in 2001 when it was felt that the country was fast going - as we Sri Lankans say - down the pallang. It was unanimously accepted by all parties in parliament including Mahinda Rajapakse's own party, the SLFP. The basic objective of this amendment was to prevent the abuse of power by the executive president, executives of government, legislators and even the judiciary. It was to prevent the executive president saying: 'I am the State' like the French monarch of yore did, and bring about a democratic form of government compatible with other modern democracies of the 21st Century.

The Constitution Council, under the amendment, was to appoint four eminent persons to head four independent commissions to the Police, Public Service, Judiciary and the Elections Department. After its appointment in 2001 it did work but on President Rajapakse assuming office, the work was stalled. Initially it was due to the failure of minor political parties to reach an agreement on their nominee to the CC. Now the parties have agreed on S.C. Mayadunne, a highly respected former Auditor General to the post and all the President has to do is to appoint him and get the CC going.

At the meeting last week between Opposition Leader Ranil Wickremesinghe and President Rajapakse when the President cited the need to await the Select Committee report as an excuse for delaying the appointment of the CC, Wickremesinghe has rightly pointed out that the immediate need was to get the CC going and that the law could be amended once the Select Committee report was out. Indeed there should be no difficulty in that respect because of the rare unanimity among political parties to reactivate the CC.

The communication of the Congress of Religions signed by leading Buddhist monks, heads of the Roman Catholic and Anglican Churches, President of the All Ceylon Hindu Congress, General Secretary of the Jamiyathul Ulama, President of the Organisation of Professional Associations, distinguished lawyers, retired supreme court judges, chairmen of chambers of commerce and industries states: 'The Congress of Religions urges the President to name his nominee and reactivate the CC immediately failing which it would be tantamount to violating the constitution. The President, Prime Minister, Speaker, Leader of the Opposition and all other parliamentarians have taken an oath of allegiance to uphold the constitution. Failure and delay will result in anarchy.' They have urged the President to uphold the constitution by taking the necessary steps to reactivate the Constitutional Council.

President's Counsel K.N. Choksy has given a legal opinion to Ranil Wickremesinghe that the non appointment of the Constitutional Council can be an impeachable offence in that the constitution demands that there must be a council in place at all times and indeed the constitution specifically states the intentional violation of the constitution is an impeachable offence.

And if the President continues to turn a deaf ear to the joint call of the religious leaders, civil society and the political parties to appoint the CC, serious thought will have to be given to this option to free the country from dictatorial tendencies and set the country on the path of democracy.

The failure to implement the 17th Amendment has international fallout as well in that foreign powers as well as organisations are now telling the government that if it cannot protect its own citizens, they have a right to intervene and protect the victims under the new concept of humanitarian intervention which is being accepted by Western political leaders. The threat of intervention is not only due to the possibility of violation of human rights in armed conflict but the inability to protect civilians from abduction, kidnapping and murder.

This category of offences falls within the ambit of police protection of civilians and the President who has taken over the appointment of the head of the police in the absence of the CC has to bear full responsibility for this state of affairs. The recent transfers of key officials of the Bribery Commission by executive order without reasons being given are glaring examples of the abuse of Executive Presidential power. Looking at this development, one can even be forgiven for saying that such problems arise when a small mind is given big powers.

Thus despite the mounting pressure on the President to reactivate the CC he is stonewalling stubbornly and going behind the parliamentary nicety of awaiting a report of a Select Committee. What for example would be the case if he does not get the majority required to implement the Select Committee recommendations? Does that mean the 17th Amendment will be suspended for the entire tenure of his Presidency?

He does not listen to what the media or political parties say but the least he can do is to listen to the advice of religious dignitaries he is constantly seen with - trays of flowers in hand - on TV and the front pages of newspapers. If not all the efforts to seek the blessings of the divine may fail.