By Basil Fernando –

Basil Fernando

Now, there is a new Attorney General and a new Inspector General of Police. Whatever be the disputes about the manner in which their appointments were made, they are now the operators of two of the most vital systems of the state apparatus in Sri Lanka, the Attorney General’s Department and the police service.

That both of these vital institutions have been in a state of serious crisis and even decline, are a fact that is known to everyone; and is also acknowledged by the political and all other authorities. For at least the last 16 years, there had been a constant discussion on the state of collapse of the state institutions, including the Attorney General’s Department and also the policing service. An important landmark in this discussion was the debate in the Sri Lankan Parliament on the 17th Amendment to the Constitution.

Reading the literature of the debates surrounding the move to introduce the 17th Amendment we find a very in depth discussion on the extent to which all the basic institutions of the state have been very seriously undermined due to the constitutional adjustments by way of the 1972 and the 1978 Constitution. That debate was made around particularly; the vicious impact the executive presidential system has the entire state apparatus of Sri Lanka. The key word that was used during this time was ‘politicisation’. The word politicisation was connoted as much of a danger signal as HIV Aids or terminal cancer. The problem was so serious.

The 17th Amendment was passed almost unanimously because of the consensus that existed even then, that unless something radical was done, the country was heading towards a serious peril. The 17th Amendment proposed a change of the manner of appointments to the most important functions of the state, having impact on various sectors of life in the society, so that the people who are really suitable for being the leaders of these various institutions will be appointed by following a methodology of merit rather than political preference.

The idea of merit based appointments is a product of human reasoning which has undergone many forms of refinements over the centuries. It became quite an accepted premise that without a suitable person leading a social organisation, that organisation cannot thrive; the more likelihood was, that such an organisation will head towards a serious crises.

The concept of merit is directly related to the idea of quality. One of the characteristics of the modern world is the highest consideration given to quality in all aspects of life. Quality control goes into everything, be it in the selection of a machine, a plane or even a small household itemsuch as a coffee maker. It can be said that a modern man is obsessed with the idea of quality.

A product of this admiration for ensuring quality in everything was the idea of quality control. There are all sorts of methodologies, mechanisms and individual skills that have been promoted in order to ensure that there is supervision over the quality of products. Many a Universities offer graduate and post graduate programmes for studying methods of ensuring quality. Huge sums of money is being spent by many corporations to ensure that not only the quality of products but also that the quality of their staff, match up to the expected quality. It is assumed that the quality of selection will ensure the product will reach the expected quality levels.

It was unfortunate that the political leaders of Sri Lanka did not show their capacity to understand this basic idea of the importance of quality over everything else. They took many unwise decisions which in fact caused a considerable loss of concern for quality in any of the services provided by the state. How there was such a lack of wisdom on the part of the political leaders in the post-independence period is a subject that is worthy of discussion and some day or the other such a study needs to be conducted if not for anything else, at least for self-understanding of what happened to this nation.

It was not some unimportant political leaders who took decisions that undermined the quality of services of every agency of the state. In the Cabinet of leaders that decided on the amendments to the Soulbury Constitution in 1972, and to the 1978 Constitution were persons, who were considered as eminent for their intellectual achievements in the country. Dr Colvin R. De Silva, Dr N, M.Perera, Felix Dias Bandaranaike were among the intellectual luminaries that were in the 1972 Cabinet. However, they could not understand that the removal of the judicial review, as they did, for all virtual purposes through this constitution, would seriously undermine the very notion of the separation of powers and the possibility of a judiciary that daringly exercises the independence of the judiciary.

Among the makers of the 1978 Constitution, were several persons such as J R Jayewardene who was considered – mistakenly for a long period – as the best representative of the elite class of Sri Lanka, and his brother H.W. Jayewardene, who was at the top of the legal profession in Sri Lanka and was once the President of the Bar Association; and many other persons who were considered to be highly intelligent individuals.

However, all these and other leaders involved did not even understand the most elementary aspects of the architecture of a constitution. They did not grasp that if a fundamental aspect of the proposed structure contradicted the rules of the construction of the nation then, the whole structure would collapse sooner or later. It was this level of ignorance on the part of these former leaders that caused the situation that the people are faced with today. Ignoring the fundamentals of a structure is a prescription for peril. We know it now by our own experience within the context of the modern day Sri Lanka.

It is the recognition of this peril that was the source of discussion when the 17th Amendment was made in 2001. However, measures taken in 2001 were grossly inadequate and even such limited measures, were soon to be completely ignored with the emergence of the Mahinda Rajapaksa government.

In opposition to the Mahinda Rajapaksa government there again emerged, the old debate about the quality of the basic institutions of the country. This debate was quite central to the opposition during the entire period of the two Rajapaksa governments; and it surely was a very vital consideration in the electoral debates on January 8,2015 and in August 2015.

A hope was once more generated that perhaps this ongoing problem will be addressed on a serious footing by the new government. Therefore, the appointments that are made under the 19th Amendment into various posts including the Attorney General and the IGP should be seen as a response to the debate on which there is national consensuson –that we need to revitalise the fundamental institutions of the nation.

It is in the hands of the Attorney General to revitalise the Attorney General’s Department which also plays the role of Chief Prosecutor in Sir Lanka. That the prosecutorial system is grossly inadequate on the one hand and has been seriously abused for a considerable period of time on the otherneeds to no longer be laboured. The issue is how to address this problem and to provide the services of a good Attorney General’s Department to many vital institutions including the functioning of the judicial institutions. The new appointment is therefore,not for the purpose of just carrying out routine tasks. The routine tasks in any way cannot be carried out to any degree of reasonable satisfaction,under the present circumstances. Therefore, the task of undertaking serious stepsin order to revitalise the institution is on the shoulders of the new Attorney General. Upon his retirement, he will be judged. And the judgment will mostly be as to whether he made a difference to an institution facing peril and revitalise that institution or that he failed to do so.

The task facing the new IGP is even more formidable. He is a leader of an institution that the whole nation knows, is full of internal contradictions. It has contradictions such as,providing a quality service with a large numbers of officers who do not have any capacity to provide such services. The extremely irresponsible manner, in which large numbers of police officers have been recruited in the past, particularly by recruitment of at least 29,000 reserve police officers and assimilating them gradually into the entire policing system, is one such problem. The problem of such inappropriate appointments were not only made for reserve officers but also for other posts by means such as advertisements, just before the last presidential election for the appointment of sub inspectors, who were selected in a hurry, obviously for political purposes than for anything else. And then, there is the assimilation of the STF (Special Task Force) – which is aparamilitary service – into the mainstream policing service. These are just a few issues relating to the dangerously inappropriate recruitments so made, but the list all other such prevalent issues could be a very long one.

The first question that the IGP, as well as the Attorney general is facing is as to whether they are bent on developing a policy framework for the necessary changes. Without the initialpolicy development, we cannot expect anything to happen in the future. What are requiredare not statements to the press stating that even the mountains will be moved to achieve the aims of these institutions, but to do the humble task of sitting with colleagues and others who are knowledgeable about the institution’s vital functions, in order to work out a policy for change. This policy must also be placed before the people, so that they could, from the very start understand the new direction, of these two intuitions. Cooperation is the essential element that is required for the functioning of any public institution.

All this is not possible unless the government which appointed them provides them an assurance that the financial requirements for this change will be met by the government. The budgetary allocation for change within the Attorney General’s Department and the police department is the sine qua non for the success of both the AG and the IGP.

As the weeks go by the people will watch. The People will soon begin to say whether they see a change in the air, or they see only a repetition of the very things that they are fed up with. Such is the challenge faced by the new Attorney General and the IGP; and same challenge will need to be faced by the Government of President Maithripala Sirisena and Prime Minister Ranil Wickeramesinghe.