Two blows in the battle for governance: Against Immunity and for Impunity

by Dr. Pakitasothy Saravanamuttu

(October 15, Colombo, Sri Lanka Guardian) The Supreme Court has struck again and this time, reinforced by the Doctrine of Public Trust, at the powers of the executive president.

The judgement against the former president clearly demonstrates that the constitutional provision of legal immunity for the executive president only provides a cover to the holder of that office whilst in office. Once out of office, there is every likelihood, that executive excesses will be brought to book and even more than the Doctrine of Public Trust invoked against former chief executives.

The Commission to Investigate Allegations of Bribery and Corruption will as ordered go into the matter and decide on what further punitive action is to be taken against ex President Kumaratunga.

The highest court in the land, has found her actions to be illegal, and judged her to have abused power, the constitution and the public trust to profit an individual frequently described as a crony.

In this respect, ex President Kumaratunga has not got off lightly as some have opined in response to the three million rupee fine the Supreme Court has imposed on her. There could be more to come in terms of punishment.

The long-term issue remains that of the powers of the over mighty executive under the current constitution and the extent to which the Supreme Court judgement will deter abuses of power into the future. Probably not, since there is no discounting that the politicians who are the holders of this office will see the judgement and their situation in purely political terms and chance their luck accordingly.

The temptation to abuse power at the end of the day goes hand in hand with the belief in being able to "get away with it" – or in common parlance, that every illegal and unconstitutional act can be "shaped up" if necessary. Subsequent courts may not act in the same way as this one and this one has not always acted the same way.

The focus should be on the now forgotten PA cause célèbre of yore – the abolition of the executive presidency which at points even the UNP that introduced it, has conceded must be reformed.

Is it not time to make the executive accountable to the peoples’ representatives in the legislature when the illegal and unconstitutional, even criminal act is committed, than have to rely on the judiciary to rectify a past wrong, years later?

Getting rid of the presidential immunity clause is necessary. It will be a start, but this alone will not do to reap the fullest benefits and lessons for governance from this landmark judgement. As it stands, too much of public trust has to be invested in the chief executive in our structure of government, for governance.

Our political culture, clearly demonstrates that this is a very risky proposition indeed. There have to be checks and balances and the practical, guiding principle for constitution making should be a healthy suspicion of power and those who wield it, without exception.

Another area of governance brought to the public’s attention in the last week is the appointment of the TMVP Leader, Vinayagamoorthi Mualitharan alias Colonel Karuna as a UPFA Nationalist MP.

This highlights the issue of as to whether the electors in a functioning democracy have a right to know who their potential representatives will be at the time when they choose them. The practice which flies in the face of any notion of representative democracy is for party secretaries and leaders to choose at whim as to who should be appointed to a vacancy on the National List, regardless of whether the electors were aware of that individual being a candidate on the National List in the first place.

The Elections Commissioner appears to go along with this on the grounds that this is an internal party affair, begging the question as to why any National List should be made public at any time at all.

Another issue is that of the purpose and objective of the National List in the electoral system. The ostensible justification is to bring into parliament individuals of distinction who could contribute towards better governance and to ensure or augment the representation of groups that should, but would not have their say in the governance of the country, if they had to rely exclusively on a direct competition for votes.

No doubt, the argument will be made that Vinayagamoorthi Muralitharan fits the bill in that it is of the utmost importance to ensure the fullest integration of the TMVP into the democratic mainstream, irrespective of the crimes and atrocities of its leaders. This is the essence of compassion and reconciliation; conflict resolution and peace, demands it.

The objections to this and at the heart of the Amnesty International statement on the subject is that Muralitharan is a suspected war criminal who allegedly tortured, held hostage, conscripted children and killed hundreds throughout his ‘career,’ both as part of the LTTE and as an ally of the Sri Lankan state.

There is also the matter of his traveling to the UK on a false Sri Lankan passport. That he should be made a MP as opposed to being investigated and tried for the war crimes he is alleged to have committed, only reinforces the culture of impunity in respect of human rights violations.

Peace, nor conflict resolution nor reconciliation demands the sustenance of a culture of impunity.

Why the haste and hurry in bringing him into parliament? Should not the people of the east, now liberated, be first given the chance, in an unsullied electoral contest, to decide as to whether they want him as their representative in the national legislature?

Is Amnesty wrong in this instance about the culture of impunity?

Perhaps there will be a case and a judgement that strikes at the very heart of this as well. Soon.
- Sri Lanka Guardian