Independence of the Elections Commissioner is equally important

|  by Shrinath Fernando

( January 2, 2013, Colombo, Sri Lanka Guardian) There has been a flood of articles about the impeachment process and some have condemned outright the procedure adopted by the Parliament, whereas some have given vague and slanted messages not meant to antagonise the ruling authorities.

The impeachment crisis has now turned into a battle between the Judiciary on one side and Executive and ‘Executive-led’ Legislature on the other side. The Judiciary has recently said that a ‘chaotic situation’ would emerge if decisions of the Judiciary are not respected.

Some academics and legal luminaries have presented very strong points against the impeachment process. Some Ministers with leftist political ideologies and who had championed many a political causes in our history have been somewhat muted in making their positions clear.

It is very unfortunate that these types of people have resorted to silence and their silence in the past had indeed contributed to the deterioration of the rule of law in our country. Senior politicians need not worry about their ministerial portfolios but should be candid in their views and make their presence felt by expressing their thoughts freely – irrespective of the fact that it might cost their ministerial portfolio. After all it is the Government that would benefit from such exulted political wisdom.

Impeachment crisis

The impeachment crisis has now turned into a battle between the Judiciary on one side and Executive and ‘Executive-led’ Legislature on the other side. The Judiciary has recently said that a ‘chaotic situation’ would emerge if decisions of the Judiciary are not respected.

This statement is unprecedented in our post-independence political landscape and might impinge on country risk ratings. It looks like that Judiciary has been watching the public dramas being enacted in broad daylight without any regard for public sentiments and waiting for an occasion to express their disgust.

One legal luminary had drawn an analogy from a Roman description of its enemies in his written submission to Supreme Court which is yet another historical statement in our court history. Yet another retired justice has delivered a speech highly critical of the incumbent Government. These words of Judiciary and legal profession seem to have escaped as if it has been kept ‘bottled up’ for some time.

Political columnist Darisha Bastians once wrote an article aptly captioned as ‘Breaching the last line of defence’. Yes indeed the Judiciary is the last resort against injustice, discrimination, oppression, exploitation, expropriation, and political deception (golf course case).

The whole country, including this writer, salute the Rajapaksa family for the magnificent war victory brought about against the ruthless terrorists who did not represent the real Tamils or their grievances. However this historical victory does not provide a carte blanche on political decisions on other areas of good governance.

There are serious issues involving good governance, transparency, media freedom, justice and fair play. Perhaps this is why the entire Judiciary is up against the Executive and the ‘Executive-led’ Legislature. People have been jolted against the absence of fair-play in public affairs.

The State media institutions have been excessively used for propaganda purposes and in some cases to sling mud at opposition and dissenters. The Government is of course entirely free to provide space for its own version of the impeachment imbroglio but there should also be space for counter arguments or provide an opportunity for other side to respond to allegations.

Call for fair play

No one says that the CJ is innocent but the clamour is for fair play and natural justice. The lawyers and the Judiciary know very well that this sudden decision to impeach the CJ stems from the adverse judgment delivered by the Supreme Court over Divi Neguma Bill.

The pertinent question that begs an answer is, what guarantees would there be that the next CJ would always fall in line with the philosophy of the Government of the day? Will there be impeachments every now and then? That would make the whole Parliamentary system of impeaching judges a mockery.

If the next CJ does something indigestible, the Government will not be in a position to impeach at all as the Government will have lost credibility for yet another impeachment. He or she will be even more powerful and assertive than the incumbent CJ. It would be prudent for the Government to mend fences and avoid an open clash with Judiciary. It is also the art of drafting Bills so that no provisions of the bills will be found to be inconsistent with the constitution.

Commissioner of Elections

Has anyone thought about the importance of the independence and integrity of the Commissioner of Elections? The Elections Department has an onerous duty of conducing elections in a free and fair manner and people of this country have an inherent right to elect a government of their choosing and if the outcome of an election does not represent true will of the people what would be the situation?

What remedies are there to rectify such a situation? How will we ever know if the elected are the ‘true representatives’ of this country who have been elected ‘freely’? The Parliament cannot be supreme if the elected representatives have dubious credentials and the election itself is not free and fair.

True meaning of ‘Parliamentary Supremacy’ must therefore necessary mean that it is an august assembly composed of people with integrity and learning. The current Parliamentary affairs, as seen and understood from media reports, does not pass muster even the minimum criteria.

Some sections of the Parliamentarians believe in the ‘doctrine of Parliamentary supremacy’ but this has long since been diluted and considered as an archaic interpretation. There has been a plethora of literature produced by Constitutional lawyers and scholars on the question of Parliamentary sovereignty.

The British Parliament which is often called the ‘cradle of democracy’ or the ‘Mother of Parliament’ has undergone tremendous changes owing to the adoption of European Convention of Human Rights into domestic law through Human Rights Act 1998.

The judicial interpretations of the European Court of Human Rights (ECHR) and European Court of Justice (ECJ) too have impacted on Parliamentary supremacy. It is the Constitution that is supreme as far as Sri Lankan context is considered. 1978 Constitution clearly shows the separation of three pillars of government and each must respect the other. This requirement is derived from the Constitution itself as such constitution is supreme.

Undermining credibility

Abolition of 17th Amendment was a grave mistake and it seriously undermined the credibility of the Government. Even foreign observers are monitoring the situation in Sri Lanka very closely and with the advent of latest electronic and social media networks it takes only seconds to reach news at the desks of foreign policymakers worldwide.

The Government should have been a little more circumspect in embarking on a process which is patently not transparent. It would perhaps be politically wise to enact legislation on the impeachment process or removal of judges and recommence the impeachment process with a clear procedure in place.

There are however far more serious issues that Government must look into. The Tamil Diaspora and the pro-separatist lobby are making mammoth strides overseas on the public diplomacy front and government does not seem to have any coherent strategy in countering the pro-separatist lobby overseas.

If the Government remains passive on the public diplomacy front, especially in countering pro-separatist lobby overseas, it would one day pose a grave threat to the sovereignty of Sri Lanka. External intervention in our domestic affairs would then be inevitable. The ethnic reconciliation exercise seems to have put on the back burner and it has got be revived sooner rather than later.

(The writer is a freelance journalist and a political lobbying and Government affairs consultant. He is also a columnist with the Financial Times, a daily based in Sri Lanka, Where this piece was originally appeared. )

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Independence of the Elections Commissioner is equally important Independence of the Elections Commissioner is equally important Reviewed by Sri Lanka Guardian on 02:26 Rating: 5
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