By Shyamon Jayasinghe –
Should the President be informed about former defence personnel been summoned by corruption investigating independent commissions?
I can understand such a privilege being applied to key serving defence personnel. By definition such cadres are crucial to the maintenance of national security and the rule of law and it would be both problematic and enigmatic if they are summoned without the Commander-In-Chief knowing in advance. But for the retired who are summoned to explain some serious allegations relating to their time in office?
If the charges pertain to robbing state funds, to money laundering, to serious sexual abuse or to murder itself? All done while they were in service? Why not? Right now there are serious charges that smell the air about retired defence and army personnel over million-dollar purchases of MiG aircraft. There are charges that retired army personnel had been employed to carry out murder. The Thajudeen murder is prominent among the latter. There are allegations that slush funds of the intelligence arm of government had been used to pay such retired personnel masquerading under spurious names. That these charges may be proven or not is not the issue. That they are very serious ones constitute the issue. If confidence in government is to be re-established it is crucial that independent commissions be allowed to investigate them all without interference from the executive or legislature. Yahapalanaya cannot be established without building public confidence in government. Besides, there is a futuristic aspect about yahapalanaya in that consequent to the vibrant working of independent bodies whose independence is guaranteed by the constitution there would be a detrimental effect on potential crimes of this nature by anybody and any government set-up of the future. Thus it is good for now and good for the future health of government-this government or any other.
What are the options available to the President if he is informed prior about the summoning of such service personnel. Can he give an order to stop it? No; for that would not only be illegal but would undermine the independence of the independent commissions. On the other hand, if the President fails to stop action then he will be made a victim of the anger of the serviceman concerned. What this means is that the President gets unwittingly embroiled in the issue.
At the back of this whole crisis symptomised by President Maitripala’s famous speech is an unwillingness of our politicians in general to accept the modernity, validity and necessity of having operating bodies independent of their control. The deep-rooted value, amplified no doubt during ten years of rule by the former regime, is that politicians who run government own the country as their personal property. One witnessed this political cultural trait in the notorious act of brutal bullying of the former Chief Justice, Shirani Bandaranayake. Even before former President Mahinda Rajapaksa we had President JR Jayewardene who remarked in public that he had all the powers to do anything except to make a gender change.The privatisation of government decision -making had been carried to the extreme by the President Mahinda Rajapaksa. The danger was that this right to government as private property trickled down to the entire political bureaucracy. We are stuck in it still-although some measurable progress has been made
I believe it is vital for yahapalanaya to rectify this fundamental canker in our body politic. The President, Prime Minister and all Ministers must set the example and the model. A constitution should create the required legal framework. The Nineteenth Amendment was indeed a breakthrough but it must be followed up by a totally new constitution.
There is another important issue here: There is a dilemma involved in this transformation. I think President Sirisena’s provocation had been a reaction to the dilemma. Independent bodies should not be perceived as acting as law unto themselves. If this does happen and if personnel driving such bodies try to foster their egos then a new form of injustice will be perpetuated.
A good illustration of apparent bad practice was the allegation made by President Sirisena that Mr A. H. M. Fowzie, was interrogated before rookie cops. This allegedly diminished the stature of the venerable political leader. Appearances of fairplay on the part of independent commission are crucial. If such an occurrence did take place the appearance did not look good.
It would be pertinent to conclude with a quote from Australia’s Chief Justice-The Honourable Sir Gerard Brennan, AC, KBE:
“The reason why judicial independence is of such public importance is that a free society exists only so long as it is governed by the rule of law – the rule which binds the governors and the governed, administered impartially and treating equally all those who seek its remedies or against whom its remedies are sought. However vaguely it may be perceived, however unarticulated may be the thought, there is an aspiration in the hearts of all men and women for the rule of law.
That aspiration depends for its fulfilment on the competent and impartial application of the law by judges.”
This statement, meant to relate narrowly to the Judiciary is applicable in spirit to the independent commissions.