Political picture becomes nuttier and fruitier

Editorial-May 16, 2015

Nobody, except President Maithripala Sirisena, knows when the incumbent Parliament will be dissolved. Various political players, of course, have their preferences often depending on astrological factors and other mumbo jumbo that too many of our politicians, past and present, have depended on. However that be, elections are due in the short term and the manner in which various events are panning out suggests every possibility that they would be sooner rather than later with many expecting Parliament to be dissolved some time this month. No sooner that happens - and President Sirisena is the sole determinant of when that will be - the constitution sets the timeframes for the relevant parameters. Nominations must be called on the 10th day following the proclamation of dissolution and close of the 17th day; the polling date will be not less than five weeks from the closure of nominations and not more than seven weeks thereafter.

Last week’s Supreme Court order on former Defence Secretary Gotabhaya Rajapaksa’s fundamental rights application preventing his arrest before the conclusion of that case and the fixing of the next date of hearing for Oct. 6 provoked Prime Minister Ranil Wickremesinghe to express his view that this order had prevented both him and the cabinet from responding to contentious averments in the petition before the parliamentary election. Wickremesinghe is on record saying that the president had said elections would be in September although there has been no clear public expression of a likely date by Sirisena. Wickremesinghe says that he could "easily and adequately" reply to the issues raised if given the opportunity. But the long date given by the court for the next hearing precludes him from doing so before the election. The prime minister is well within his rights making the observations he has on this score. Certainly a clear and early determination on whether the Financial Crimes Investigation Division (FCID) of the police now examining activities of several high profile personalities is legal or not would be most relevant to an election campaign.

However, his remarks about consulting Commonwealth judges on these matters would have, in our view, been best avoided. Most Lankans would not wish to see external pressure applied on matters concerning our courts although impeccable standards on the appointment and conduct of judges would be widely desired. This, unfortunately, has been sadly lacking in recent times. How quickly such consultations can be done and how soon an opinion could be obtained is also relevant. If such opinion suggests an error has been made, it is not for an external body to apply the correction. That would be matter for a fuller bench here to deal with. It has been reported that the premier will be consulting the attorney general on his concerns on this matter. That is perfectly in order. Depending on the AGs advice, further measures including consulting a fuller bench, could be taken if appropriate. It has been stated that a two-judge bench could not have given the order made in this case. If such order had been made per incuriam (literally through lack of care) it could presumably be revised. But it must be remembered that the available time line, certainly before the next election, will be extremely tight and whether these matters can be resolved in time for an election campaign debate seems most unlikely.

The decision of the court restraining the police from arresting Gotabhaya Rajapaksa does not halt ongoing investigations including questioning him further. Rajapaksa’s counsel told the bench that 10 persons under investigation who had been summoned to the FCID did not go home after questioning and the former defence secretary anticipated a similar fate. We are all too familiar with the police tactic of locking up suspects on Fridays so that they do not have to be taken to court before Monday. Anticipatory bail being sought by persons fearing arrest is not uncommon. Sometimes such applications are granted and at other times denied. Restraining the police from arresting a suspect, as has happened in the Gotabhaya Rajapaksa matter, is less common. Now that a fundamental rights action had succeeded in obtaining a restraining order on arrest, others under investigation will most likely seek the same relief. Whether such applications would be granted or not are open questions.

The resignation of one of the members of the Bribery Commission for "personal reasons" came hard on the heels of the Supreme Court’s restraining order on the arrest of Gotabhaya Rajapaksa. This, it seems, would not halt ongoing bribery investigations. However, it would not be possible to serve indictment on a suspect against whom there is prima facie evidence if the commission is not fully constituted. Now that the 19th Amendment to the Constitution, duly certified by the speaker, is part of the basic law of the land, a Constitutional Council that could fill the vacancy in the Bribery Commission can be appointed. But the president is not likely to want to do that in a hurry or delay the dissolution of Parliament pending the appointment of the Council comprising mainly of MPs. It is therefore likely that no bribery indictments can be made before the next election.

These are obvious movements on the political chessboard and more are likely between now and the dissolution of Parliament and, possibly, till a new government takes office at the conclusion of the next election. Whether these are intended for the good of the nation or the interest of justice are matters on which most Lankans will take the cynical view.