The ‘legal requirement’ of being immortal

There is an image from the last Presidential Election that I have saved as the ‘wallpaper’ of my political mind; that of Elections Commissioner Dayananda Dissanayake at the post-election briefing expressing the wish that he would be allowed to retire. ‘At least now,’ I remember him saying.

This was two years after the then Chief Justice, one Sarath N. Silva, responding to Dayananda’s plea for retirement delivered a historic determination. The bench, for the record, also included Justice Dr. Shirani Bandaranayake and Justice P. Edussuriya. On the 17th of May 2003 Silva explained that subsequent to the 17th amendment to the constitution the continuance in office of the Elections Commissioner until the Elections Commission is appointed is a legal requirement.

He said that the Elections Commissioner, Dayananda Dissanayake was in a peculiar situation since Article 27 (2) of the constitution subsequent to the 17th amendment needs him to be in office and did not lay a time limit for the appointment of the Elections Commission by the President on the recommendations of the Constitutional Council.

Dissanayake was even then over 60 years of age and in poor health having suffered several heart attacks. That of course was irrelevant to the court. Silva did not observe that the delay in appointing an Elections Commission by the then president was a serious violation of the spirit of the 17th Amendment.

Six years have passed and Sri Lanka is getting ready for another Presidential Election. Dayananda Dissanayake, is still the Elections Commissioner. According to that strange court determination, he cannot retire because a full Elections Commission has not been appointed as per the 17th Amendment to the Constitution. Well, we are not going to get such a Commission until we get a Constitutional Council.

I was thinking about Dayananda Dissanayake and wondering about the conditions of his being, his work, his non-retirement and the politics that require him to be immortal.

Let me state my biases here. I think the 17th Amendment is a flawed document with too many holes in it and therefore easily subverted. I believe however that it is an important base document in correcting institutional flaws and moving towards more efficient and democratic governance structures. It contains loops that bring us to Square One on many counts. Perhaps the 17th Amendment along will not do the trick and perhaps it will not be enough to add ‘ethics’ either. Still, it cannot be rejected outright without offering an alternative mechanism to address those issues that the 17th Amendment was supposed to cure. Furthermore, since it is part of the constitution, its full implementation should be actively sought by all concerned (including the Supreme Court) in the interest of keeping constitutional anarchy at bay.

Getting back to the Elections Commissioner, I was wondering how a man gets ‘sacked’. The Supreme Court has determined that the man cannot retire. Now it seems that the Government and indeed the entire system require Dayananda Dissanayake to live forever. Dissanayake (may he live long!) while he could cite the SC decision and remain un-retired and indeed justify that status, must understand that his every living moment is an affront to the democratic spirit and an obstruction to curing process of our diseased institutions. Not his fault, of course, but he is an instrument nevertheless. What can he do about it? He can say ‘weak karma’ in explaining the punishment of being denied retiring rights.

Maybe I am being unfair. Let me assume that Dayananda is some kind of demi-god who doesn’t have to worry about being picked up by some underworld hit-squad; that he doesn’t have to worry about the repercussions of the things he does and does not. What would his options be, if he considers the public interest to be all-important?

He could commit suicide. That would force the system to do whatever it takes to get the Elections Commission constituted. It would therefore force the system to deliver the long overdue baby called the Constitutional Council. If this were to happen today, we will not be able to hold the Presidential Election. No society should be in this situation where its franchise is absolutely dependent on the ‘immortality’ of a single individual.

We have to understand that Dayananda Dissanayake, given these realities following the Supreme Court determination is clearly one of the most powerful individuals in our society. He can demand anything he likes and we should all be extremely thankful to him for not having done so. I can think of lots of people who, finding themselves in Dissanayake’s situation would have grinned and milked that particular SC determination to the maximum.

Dayananda Dissanayake is not that kind of suicide-bomber and I am not sure if we should be thankful or not. His situation, however, shows us one thing. Our system is utterly fragile. That fragility did not fall from the sky. It was legislated by Parliament, executed by various individuals who enjoyed executive powers and was legitimized by a highly politicized and short-sighted judiciary.

Malinda Seneviratne is a freelance writer who can be reached at malinsene@gmail.com.