By P. Soma Palan –
One may call it Litmus or the Acid test, whichever it is, in simplest language it means that the success or failure of the Unity Government, will be tested by the implementation of the major/Principal commitments it pledged , and on which platform, the people supported it, to bring about a regime change in 2015. The Unity Government between the two Political Parties, UNP and the SLFP was brought about by the concerted efforts of the enlightened progressive forces of the country, the urban middle class, intellectuals, professionals, Civil Society Groups and the solitary, solid and vigorous leadership provided by the Ven. Sobitha Thero of the Sangha, which contributed to the downfall of the “Assuric” regime headed by Mahinda Rajapaksa at the Presidential election of January 8th in 2015, and followed by the General election.
This regime change was solely based on three, absolute, fundamental issues and on nothing else, namely:
1. The abolition of the Executive Presidency
2. Punitive action against Politicians/Officials guilty of Bribery and Corruption, and financial and homicidal crimes, and
3. Framing of a new Constitution, inter alia, to resolve mainly the National Question.
These three fundamental issues should rightly be the bedrock of the Unity Government. This should have received top most priority of the Government, running parallel and dominant to other multiple urgent issues, but not in a linear manner, one after the other. Accordingly, no other issues, however great or important, such as Economic and Infra-structure development, International Trade Agreements, Foreign Direct Investments, Employment generation, Cost of living of the people, and democratization and Independent Commissions etc, will determine the effectiveness and efficacy of the Government, over and above the overriding three fundamental issues referred above, which is the very raison d’etre of this Government.These three major issues, are the criteria on which, the performance of the Unity Government, will be tested.
The Abolition of the Executive Presidency
The President declared at the very outset his intention, unmistakably and unambiguously, that he will not seek a second term Presidency. The abolition of the Executive Presidency was an avowed commitment (not a promise) of the Government and a Demand (not a request) of the people, at the elections. The Unity Government has reneged on its commitment. Instead, it had compromised by pruning some of the Executive Powers. This is no substitute for the total abolition of the Executive Presidency. What is worse, the President has shamelessly shown his intention to vie for a second term in Presidential Office, despite his public avowal to the contrary, at the funeral oration of the departed Ven. Sobitha Thero. Having entrenched himself in the Presidency and enjoying the benefits of the Office such as, site seeing tours of foreign countries, so many in so short a period, in the guise of official imperatives, President Sirisena has shown an irresistible, amorous magnetic pull towards the Office of the Executive Presidency ,than a revulsion for it. Over three years have passed since this Government assumed office. One is puzzled as to what prevents the Government from abolishing the Executive Presidency. I don’t think it is the 2/3rd majority or even a Referendum. It is none, other than the greed for power and position. Once you enjoy it, you cling to it and never let it go. The only difference between the two, the predecessor and the current incumbent, is that former unashamedly flaunted power and position openly, whilst the latter, hides it deceitfully under the veneer of modesty and simplicity. Whichever it is, both are after the same thing. It is the simultaneity of two centres of Power, between the President and the Prime Minister, particularly in the context of coalition of two major political parties, which is pulling in two different directions, the cause for lack of positive action to fulfill the three fundamental issues, the Unity Government was committed to. On the Abolition of the Executive Presidency, the Unity Government has failed the Litmus test.
Prosecution and Punishment of Wrong doers
During the last three years and more, many investigations have been conducted, statements recorded by the Officers of the Bribery Commission, the Financial Crimes Investigation Department and the CID, against Politicians and State Officers for Bribery, Corruption and Money Laundering, Misuse and thieving of State Resources, torture and murder of journalists. But no firm and positive action have been taken by the Law Enforcement Agencies to indict the Offenders and punish them. One can only see dilly dalliance and procrastination in convicting the wrong doers and meting out the prescribed punishments under the Penal Code or other relevant Statutory Laws. No positive legal action taken against those in positions of power for several abductions of persons and killings, torture and disappearances of journalists, despite available direct, indirect and circumstantial evidence. We only see arrests made and some released on bail and some remanded to prison, but gleefully go straight to either Prison or other hospital for farcical medical treatment. This is a notorious recurring practice in almost all cases before the Courts. Thus Court Orders are nullified by subterfuge means with the connivance of Medical Officers. The whole Judicial system is held to ridicule and reduced to a joke. Ordinary citizens who commit criminal offences gets no bail and without power or influence to get admitted to a hospital, instead of remand prison. One example, the Daily Mirror of 28th April reports on front page “Factory owner remanded till 16th May”. While those Politicians and State Officers involved in murders and robbing Public funds are given bail or sent to Hospital. This is a mockery of the Judicial system and justice. Those facing imminent arrest, like Gotabaya Rajapaksa, file Fundamental Rights petition in Supreme Court to prevent being arrested. The Police have the right to arrest any person who commits a crime, subject to the doctrine of Habeas Corpus, and produced within 24 hours before a Court Magistrate. Isn’t the Constitutional right to equality before the law, is openly infringed by the enforcers of the Law? Lack of human resources or inadequacy of Courts, is no answer to the delay of justice. If overload of work is a bottleneck for the High Court to dispense justice, why not create another High Court to hear only cases of bribery, corruption and financial crimes and the like. I do not think there is any limitation to the number of High Courts that can be established under the Judicature Act. The real reason is that, politicians are loathsome to punish their political comrades, even if they are in the opposite camp or, they themselves have the taint of same guilt.
In contrast, the Commander of the Army, General Sarath Fonseka was indicted on made up charges and swiftly tried by Court Marshall and sent to prison by the former regime. It is granted that, it was an isolated one case. Though the criminal cases against politicians and State Officers are aplenty, this is no rational explanation for the inordinate delay by years, in prosecuting and punishing them, when the charges are not cooked up, and provable in a Court of Law. Those arrested, are bailed and released, despite the magnitude and gravity of the criminal offences. In glaring contrast, the large number of Tamil youths arrested and detained in imprisonment, on mere suspicion of links to the defeated LTTE terrorism, over a decade or more, losing their prime youth and middle age in jail, without being charged before a Court of Law for any crime committed, or released if there are no charges against them. They are kept in prison indefinitely, which is nothing but life-imprisonment. Isn’t this, a blatant racial discrimination against the Minority Tamils, and a violation of their Fundamental Rights, even if it is under the Prevention of Terrorism Act. But the Constitution supersedes all other Laws. In contrast, those who have committed grave criminal offences like Murders, tortures, abduction and disappearances of persons are arrested and immediately released, without being kept in remand prison, till they are convicted in a Judicial Court. Isn’t this, double standards in the administration of Law and justice. On this count also the Unity Government has failed the Litmus test.
Framing of a New Constitution
Framing a new Constitution is the third major commitment of the Unity Government. The Unity Government started with a bang to implement this commitment. The Parliament resolved to transform itself to a Constitutional Assembly to deliberate and adopt a new Constitution. A Public Representations Committee and Several Sub-Committees were established, with a final integrative Steering Committee to prepare a Draft Constitution for the consideration of the Constitutional Assembly for adoption. There was intensive activity and all around discussions and deliberations going on, in the beginning. There were public consultations and representations, both written and in person. All these activities have suddenly stopped, and a silence of slumber prevails now. Even the robust protagonists for a new Constitution are in a state of amnesia and forgotten the issue. What happened to the Constitution making process? No one seems to know.
Therefore, it appears that the whole Constitution making process was nothing but a staged drama to appease the International community, United Nations Human Rights Council and the European countries to restore the GSP facility and to hoodwink the representatives of the Tamil people, the TNA, with a false mirage of a new Constitution with greater autonomy of a quasi-federalist Constitution. The credulous TNA had fallen to this bait.
The Buddhist High priests of the Malwatte and Asgiriya Chapters declared an Ultimatum to the Unity Government to stop forthwith the Constitutional making process, saying there is no need for new Constitution. The framers of the Constitution have obediently succumbed to the demand of the obscurantist Buddhist Monks; Hence, the sudden stoppage of the process of making a new Constitution. Although there are progressive, enlightened and far-sighted Sinhala Buddhist politicians, mindful of the necessity of constitutional power-sharing with the Minority Tamils, they are helpless in doing so, due to the Sinhala Buddhist reactionary forces in the country, both lay and the priests. The Buddhist High priests are, in a sense, the de-facto rulers of the country.
Since there is no forward movement in the new Constitution making process for a period of time now, it is reasonable to assume that, it had been unofficially stopped and put into cold-storage, perhaps with a chance of resuscitating it. But in my view, it is beyond redemption, and in the mortuary pronounced dead. The Unity Government failed in this test also.
It is, therefore, unmistakably clear, even to the below average intelligent people, that the Unity Government had failed dismally to achieve the three fundamental objectives it was committed to, and for which specific purpose, the people voted it to power and brought about a regime change, to reverse the authoritarianism and dark era of the regime ,it replaced. There is no denial of achievements in other areas. There is no doubt ,it arrested authoritarianism and State terrorism of the previous regime and restored democracy, freedom, Rule of Law, right to dissent, democratization of public Institutions, rescued the Economy from total collapse and controlled the stranglehold of Foreign Debt and regained International respect of countries and World Institutions, and removed the public fear of the ‘White Van’ culture. These are not visibly solid and measureable things. But the atmosphere and the feeling these generated is recognizable. We were more or less under a family dictatorship, if not in form, but in substance. If the Unity Government had delivered on the three fundamental objectives for which it was voted into power or, at least, demonstrated positive actions, to (a) prosecute and punish those abused, misused and robbed the resources of the country (b) to frame a new Constitution, without provision for an Executive President, it could have passed the Litmus or the Acid test. But there were no signs of positivism or activism. On the contrary, what is worse is that, it demonstrates a reverse trend of loosening or slackening the processes, more specifically New Constitution making. It appears there is a back-slide than a forward march in this respect. If there is a political will and genuineness, the Unity Government can still salvage itself by regaining lost direction and momentum and complete to a finish (a) prosecution and punishment of wrong doers and (b) framing and adoption of a new Constitution, within its remaining period of tenure. A separate ad-hoc action to abolish the Presidency is redundant as it can be incorporated into the new Constitution. By keeping the wrong doers at liberty, instead of their rightful place in prison, the Unity Government is facilitating a return of the demons.