Hypocrisy in the name of Democracy

‘I’M NOT HERE FOR RANIL, I’M HERE FOR DEMOCRACY AND GOOD GOVERNANCE.’ This was a poster or rather sentiments that appeared to be popular at the demonstration in Kollupitiya last week following President Maithripala Sirisena’s decision to sack Ranil Wickremesinghe and appoint Mahinda Rajapaksa as Prime Minister. 

Really? Really, really????

One of the better definitions of democracy is that it refers to ‘a government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections.’ And yet, this definition does not speak to the political economy in which the democratic process unfolds. For example, we know that people have to vote only for those who actually contest, and candidacy is not a squeaky clean matter. Only a certain kind of person can contest or rather only a certain kind of person has a good chance of winning. There are exceptions, but this is the rule.  

Different countries have different systems where representation is obtained. The United States of America, for example, selects rather than elects her Presidents. There are other realities which rebel against the fundamental tenets of a sound democratic process best exemplified by the outright robbery that took place in the 2000 US Presidential Election. Malcolm X saw this early. Well, it was not a secret as far as African Americans and other non-white peoples in that country were concerned. Malcolm X didn’t mince his words: ‘This is American democracy and those of you who are familiar with it know that in American democracy is hypocrisy.’

More caustic was the following observation which factored in the reality of an uneven, unequal and unjust polity: ‘democracy is an exercise in which the majority of people choose the sauce with which they are to be eaten.’

Nevertheless, ’democracy’ is the word in the streets. To put it more accurately, ‘democracy is the word in the Opposition Street.’ Democracy does not begin when parliament is dissolved and does not end when results are announced. However, since it’s representation through elections that’s being talked of it is good to think about how democracy has been played (and ignored) over the years.

When the first post-Independence elections were held, the Father of the Nation, so-called, stood at the ballot box with a club in hand ‘to protect democracy’.  Intimidation, tampering with ballot-boxes and such became part of the story thereafter. And yet on that occasion and thereafter whenever democracy came under threat or was subverted, the beneficiaries and their loyalists were quiet for the most part. Many have to say ‘sorry’. Indeed it would be possible to come up with a list of the ‘sorrowful’ IF remorse was part of their civic make-up.

Here’s a list, incomplete of course, but let’s call it a collective apology without thinking too much about whether or not the apologetic are still around. [Note: for reasons of space, we will not detail abuse that’s common such as intimidation of voters, violence against opponents, misuse of state resources etc., and we shall leave out the 'squeaky clean' gurus of Democracy and Decency in the International Community who are no different from the kinds of people mentioned below. We will not talk of those for whom extrajudicial killing of thousands upon thousands in the eighties was ok. We will not talk of those for whom similar excesses in the North and East during the war against terrorism was ok. We won’t talk of those who uttered not a word when the LTTE blew up buses, trains and carried out suicide attacks on civilians].

‘Those of us who knew of D.S. Senanayake’s strange notions of democracy and were silent…

‘Those of us who were silent when Mrs Sirimavo Bandaranaike abused parliamentary numbers and constitutional provisions in 1975 to extend the life of Parliament by two years...

‘Those of us who were silent, on account of political loyalty, when J.R. Jayewardene and the United National Party promulgated the Second Republican Constitution in 1978 which is widely recognized as being responsible for much of the democratic deficits on account of which there’s been much suffering.... 

'Those of us who were silence, on account of political loyalty, over the skullduggery and horrendous violation of basic democratic principles in the Referendum and Presidential Election of 1982...

‘Those of us who were silent, on account of political loyalty, when the Constitution was amended no less than 16 times during the J.R. Jayewardena years, mostly for partisan reasons, including the 13th Amendment that gave credence to Eelamist myth-modeling among other tragedies… 

‘Those of us who were silent, on account of political loyalty, when the Janatha Vimukthi Peramuna (JVP) warned that the first person who dared vote at each polling station in the various elections held in 1988 and 1989 would be shot dead and did in fact shoot hundreds…

‘Those of us who were silent, on account of political loyalty, when the Chandrika Kumaratunga regime orchestrated a move to get Chief Justice Sarath N Silva to facilitate crossovers in Parliament… 

‘Those of us who were silent when a group of Parliamentarians crossed over to the UNP in 2001, thereby tilting numbers against the elected government…

‘Those of us who were silent, on account of political loyalty, regarding the flaws of the well-intentioned 17th Amendment in 2001…

‘Those of us who were silent, on account of political loyalty, when the United National Front (UNF) Government of Ranil Wickremesinghe, with the support of President Kumaratunga, bypassed Parliament and the people to sign an agreement with the LTTE in February 2001…

‘Those of us who were silent, on account of political loyalty, President Kumaratunga took over three key ministries and thereby scuttled the UNF Government in 2003…

‘Those of us who were silent, on account of political loyalty, when Mahinda Rajapaksa introduced and got Parliament to pass the patently anti-democracy 18th Amendment in September 2010…

‘Those of us who were silent, on account of political loyalty, in all party elections under constitutions that favored the particular leader, especially that of the United National Party…

‘Those of us who were silent Those of us who were silent, on account of political loyalty, when President Sirisena appointed Ranil Wickremesinghe as Prime Minister in January 2015 when, at that time, he commanded a parliamentary strength of only a little over 40…

‘Those of us who were silent, on account of political loyalty, when parliamentarians of the Sri Lanka Freedom Party (SLFP) expressed support to the Yahapalana Government, again in January 2015…

‘Those of us who were silent, on account of political loyalty, when the Yahapalana Government Sirisena and Wickremesinghe in April 2015 promulgated the horrendously flawed 19th Amendment and especially the deliberately vaguely-worded term ‘National Government’ which is at the heart of the current political and constitutional imbroglio… 

‘Those of us who were silent, on account of political loyalty, when the Yahapalana Government dissolved Parliament in June 2015 to stop the damning COPE report on the Central Bank bond scam was to be presented to Parliament…

‘Those of us who were silent, on account of political loyalty, when President Sirisena arbitrarily sacked the Secretaries of the SLFP and the United People’s Freedom Alliance (UPFA), appointed loyalists in their place and effectively crucified the relevant Central Committees through a court order days before the General Election in 2015…

‘Those of us who were silent, on account of political loyalty, when President Sirisena arbitrarily sacked Ranil Wickremesinghe and appointed Mahinda Rajapaksa as Prime Minister on October 26, 2018…

‘Those of us who were silent when Ranil Wickremesinghe (on behalf of the UNP) and Maithripala Sirisena (on behalf of the SLFP) postponed local government elections and provincial council elections…

‘All of us, without exception, individually and collectively, are sorry. Sorry, democracy, we have abused your name, we have ranted and raved about you being violated only when we found ourselves at the receiving end of villainy and were silent and indeed not averse to cheering when such violence benefited the camps we belonged to or supported.’ 

Perhaps every single citizen who has voiced objections in the name of democracy and good governance selectively, can converge on Galle Face Green one of these days, each carrying a placard with the following legend: ‘I ONLY SAY “I’M HERE FOR DEMOCRACY AND GOOD GOVERNANCE, BUT I AM REALLY HERE FOR <add name of preferred politician or political party>’.  

Bottom line, if you are serious about democracy, you just cannot be a hypocrite, you cannot be selective. It just sounds stupid. 

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When government plays Enlightened One

This was first published in the Daily Mirror (January 15, 2015) under the title 'Bikkhu Vinaya: who should decide?'

There are moves to bring in new laws to define what is kepa (permissible) and what is akepa (prohibited) for the Buddhist clergy, i.e. theBikkhus.  Whether or not this has been prompted by requests from the Buddhist Order as represented by the Maha Nayaka Theros of the three Nikayas, we do not know.  In any event it is an initiative that resurrects the old discussion about the relationship between state and religion, whether the relevant institutions should operate independent of one another or, if not, what the rules of engagement should be. 

There are some primary objections and these should be dealt with first.   Nirmal Ranjith Dewasiri has made a relevant observation drawn from the notion of citizenship rights and the principle of equality (in a Facebook post): “All those who value religious freedom should unconditionally oppose the proposed laws related to the conduct of Bhikkus.  It is the particular religious community that should decide on the affairs of that particular religious community, subject to the laws of the country.  For example, it is not the state but the Buddhist Order that should decide whether or not a Bikkhu can apply for a driving license. If the state rejects the application for a driving license submitted by a Bikkhu it is simultaneously a violation of that Bikkhu’s rights as well as the Bikkhu’s rights as a citizen.  What is important here is his citizenship and not his status as a member of the clergy.” 

In other words, the state cannot set the rules and regulations of any organization, be it religious or otherwise, and can intervene only if these are out of order in terms of the overall legal framework of the country.  The state will not and cannot move to amend the rules and regulations, the articles of faith if you will, the articles of association etc., of scout troops, welfare societies, trade unions, blue chip companies or the bulathvita kade  tucked into an alleyway off a busy street.  The state will not and cannot dictate to the Chairperson or CEO of a company what the dress code ought to be.  As such this move is an infringement of and an affront to the basic principles of freedom enshrined in the Constitution, for example, Article 10 of Chapter III, ‘Freedom of thought, conscience and religion’.   

The state can and does set general rules for various sectors, for example companies (and within them sub-sectoral institutions such as banks and insurance entities for example) and cooperatives, but does not and cannot interfere with the details of the particular organizations with respect to behavior.  It cannot specify the menu for lunch, whether women can or cannot drive, or determine that only men can hold positions in the top management.  That’s silly, unethical and violates fundamental rights.

Perhaps a counter-example and the objections it could prompt might help.  Suppose an Act is presented to Parliament to say that the Catholic Church or any other church of a Christian denomination cannot own or run a school?  Suppose there’s an Act proposed to bar clergymen of such institutions from applying for a driving license? Suppose there’s an Act to open the Catholic priesthood to women?  What would we have?  First there’ll be howls of protest from the Religious Freedom NGO brigade and it’s academic and other adjuncts.  The US Embassy will express grave concern. The Asian Human Rights Commission will issue a statement as would Amnesty International and Human Rights Watch.  The Permanent Representative of the country’s mission in Geneva would be summoned by the head of UNHRC and perhaps even Ban Ki-moon.   That they are pretty much silent on this occasion tells of their selectivity and their mostly unspoken but clearly evident anti-Buddhist sentiments. 

Nirmal, in a phone conversation, brought up the valid issue of the insertion of ‘Buddhism’ into the Constitution, i.e. Chapter II (Article 9), regarding the foremost place given to Buddhism and the ‘duty of the State to protect and foster the Buddha Sasana’.  Nirmal argues that this is an invitation for interference of the kind that he objects to.  Well, firstly, it is one thing to ‘protect and foster’ and quite another to play class monitor, head mistress, ombudsman and the Vinayarakshaka  Sabha.  Also, just as there are constitutions and laws, there are also things like culture, history and heritage which inform their making.  “Secular” is not god-given, after all and neither is a constitution (or state) culture or religion free in word or application.   

Anyway, since the issue is discipline and applies only (therefore selectively and illegally) to the clergy of a single religion, Buddhism, there are legal as well as political and doctrinal objections.  The movers of this Act are assuming to have knowledge superior to the Buddha on matters pertaining to Bikkhu Vinaya or discipline. Whether or not the Buddhist Order and its membership in word and deed subscribe to the relevant tenets is of course something that the Buddhist Order should discuss, but it’s all there in the Vinaya Pitaka. 

The basic rules of conduct for bikkhus and bikkhunis (Patimokkha) are set out in the Suttavibhange and these are complemented in the Mahavagga and the Cullavagga with relevant elaboration for instructional purposes in the Parivara.  Whether or not the clergy abides by these or violates beyond the point of what is accepted as permissible in today’s context either through ‘error’ of omission or commission, is a matter for the Maha Sangha to deliberate and act upon.  It is NOT the business of the state, NOT the business of legislators.  

Law makers, whether Buddhist or otherwise, in addition to recognizing the fundamental error of this move in terms of articles enshrined in the Constitution, would do well to reflect on the arrogance of assuming equality or even superiority to the intellect of Siddhartha Gauthama, especially on matters of the Order he founded. 

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

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Constitutional reform and the underside of ‘enabling’ mechanisms

Towards the end of 2009, Sarath Fonseka, convinced he would defeat Mahinda Rajapaksa, spoke of turning Parliament into a Constituent Assembly.  Today, six years later, there's talk once again of going for a similar option.  These thoughts written six years ago might be of use to those interested in constitutional reform.  

History is a fascinating subject.  History teaches us so much, especially in the patterning of events, the reappearance of personages and so on.  It also alerts us to the possibility of re-enactment and therefore allows us to act in ways to prevent tragedy.

These days I am thinking about the Nazi rise to power and the circumstances that saw the end of the Weimer Republic and the rise of the Third Reich and of course a man called Adolf Hitler.  Hitler, an Austrian-born German politician was a decorated veteran of World War I and leader of the National Socialist German Workers’ Party better known as the Nazi Party.  Fundamentally opposed to the democratic post-war government of the Weimar Republic and the Treaty of Versailles, Hitler advocated extreme nationalism, Pan-Germanism (the equivalent is Sri Lanka could be Pan-Sinhalism, a ‘let the Tamils go to India’ kind of view articulated recently by someone who aspires to be the all powerful executive president) and virulent anti-Semitism.

The key to Hitler’s hold on political power was the Enabling Act of March 1933.  This came after the Great Depression saw the economic and political collapse of the Weimar Republic.  A fire in the Reichstag (which the Nazis blamed on the Communists) on February 27, 1933 resulted in the Government issuing a decree suspending constitutional civil rights.  Hitler convinced President Paul von Hindenburgh to take strong action against the ‘Communist threat’.  Elections and behind-the-scenes maneuvering saw Hitler being appointed as Chancellor.

The Enabling Act gave dictatorial authority to Hitler’s cabinet for four years.  Article 1 stated that the Laws of the Reich can be promulgated by the Reich government apart from the method prescribed by the Constitution, and Article 2 stated that laws decided upon by the government of the Reich can depart from the Constitution of the Reich, in so far as they do not touch the existence as such, of such institutions as the Reichstag and the Reichsrat, which of course were rendered irrelevant by the Enabling Act. 

In April 1933, the government abolished self-government in the German states by appointing governors responsible to the central government in Berlin. The states lost even more power in January 1934 when the Reichsrat, the upper house of the parliament and which had represented the states, was abolished.

In May 1933, the Nazis ordered the abolition of the independent labor unions. Both strikes and lockouts were prohibited, and a system of compulsory arbitration of labor-management disputes was established. All workers were compelled to join the German Labor Front, an agency of the Nazi Party, which was designed primarily to promote labor discipline rather than the interests of the workers. During the spring of 1933, the Nazis moved to eliminate opposition political parties. In July, the Nazi Party became the only legal party.

Following the death of President Hindenburg on August 2, 1934, Hitler abolished the office of president and assumed the president's powers. The members of the armed forces were now required to take an oath of allegiance to Hitler. This oath represented an important step in the establishment of Hitler's control over Germany's armed forces.

This is the nutshell-version of the rise of the Third Reich and Adolf Hitler.  What has this got to do with Sri Lanka in the year 2009?  Simple: talk about constitutional reform.

Everyone knows that the 1978 constitution is utterly flawed.  Everyone knows, also, that it is next to impossible to amend it.  This is why I find it amusing when some people talk about abolishing the executive presidency as though it can be done by presidential directive.  Knowing very well that the two-thirds parliamentary majority that is prerequisite for initiating constitutional amendment cannot be obtained, some of these abolitionists are proposing alternatives.  Some say that the manifesto will include a commitment to abolishing the executive presidency by turning Parliament into a Constituent Assembly.  The ‘mandate’ given by the people would make it ‘legal’ they argue.  Not true.

Manifestos are not one-item affairs.  They are made of multiple promises and there’s no earthly way of determining which element(s) were in mind when someone voted for this or that party.  As for turning Parliament into a Constituent Assembly and using the device called ‘simple majority’ to amend the constitution, that is a clear undermining of constitutional integrity.  It means that any and all uncomfortable constitutional articles can be dealt with by this ‘Constituent Assembly Mechanism’.  That’s a recipe for anarchy. 

Frustration is a powerful generator of aggression.  Constitutional blocks are frustrating. They make people look for extraordinary means of circumvention.  Like Hitler.  I am not saying that Parliament will be burnt and some party blamed and forced to keep away so that Parliamentary arithmetic could be cooked in favour of the pyromaniac and dictator-in-the-making.   Stranger things have happened, though, when it is sought to change constitution through means not enshrined therein.

Take a hypothetical case: imagine a man who becomes President but does not have a political party and therefore finds himself at the mercy of every single Member of Parliament when it comes to passing the budget.  Such a man will have to find a way to trip the constitution and has to do it in an extra-constitutional manner, i.e. by violating the constitution or tweaking it in a way that trips the democratic spirit.  That would be going against campaign rhetoric of course but then who said that manifestos and mandated mean anything! 

There is something we should not forget. Power is not something that is yielded by constitution alone.  There are other sources of power than can be mined to make constitutional provisions or lack thereof irrelevant.  A President, as Commander-in-Chief of the Armed Forces could, for example, in the name of restoring democracy no less, engage in such ‘irrelevancing’.  Hitler wanted 4 years.  That much time is not needed.  One could ask for 4 month or 4 weeks or even 4 days.   What is required is actually 4 seconds!  Once you got it, you’ve got everything and those who did the ‘giving’ get nothing, have nothing and cannot have anything either. 

Did I hear someone say ‘No, he is not like that!’?  Well, men are made of circumstances and sometimes that alter circumstances and that’s how history is made.  Certain circumstances limit options and both change and method of change are shaped by these realities.  It is useful to read the signs.  We know that the 1978 Constitution is extremely resistant to alteration. We know that there’s a candidate who vowed that he leaves pistol, epaulets, medals and what-not at home and don civilian garb.  We see, in poster, tone, content and everything associated with candidacy a marked fascination with a military past/present. 

Should we be worried? Well, the positive thing is that it is unlikely that he will win.  What’s the ‘negative thing’ then?  Hmm…the fact that this society by and large prefer slogan to substance, rhetoric to reality and can therefore easily find itself in a situation where there will be only one option: subjecting itself to tyranny.  It is quite possible to give ‘Enabling Power’ in a moment of giddy euphoria.  We know what the Third Reich did.  The universe of the ‘possible’ is therefore blood-laced.  It is certainly something we need to think about these rhetorical days of constitutional reform, for there is a name for the underside of ‘enabling’: dismemberment. 

malindasenevigmail.com.

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The death-wish of a constitution

Constitutions are made, talked about, cursed and amended.  They never speak although they frame much of what happens in a country.  In a parallel universe constitutions would talk.  They would, as the Americans of the US say 'kick ass'.  They would complain of aches and pains.  In a parallel universe the Second Republican Constitution of Sri Lanka (democratic, socialist, let's not forget!) or the 'JR Jayewardena Constitution' would have a lot to say.  We could but transcribe. 

No one is made perfect.  Even things of ‘top quality’ decay and perish.  It’s just a matter of time.  Of course there’s a lot of resistance.  When there’s ‘break’, there’s often an attempt to ‘mend’.  Patch-up. Even when there’s no perceivable flaw, things are done to enhance.  Upgrade.  In my case, both patch-up and upgrade have one name: amendment. 

I was birthed in 1978.  There were a few at the time who wanted me strangled at birth, but the movers and shakers of the time had enough push and pull to get me out.  I was no perfect baby.  I came with many flaws that were etched into my DNA by my makers.  Even those who blindly cheered my birth, in time, concluded that I was not as pretty as they first thought and that I didn’t live up to my promise. 

So, from time to time, I was fixed.  Tweaked, some say.  They all said it was for my own good.  It was as though everyone who tinkered with me wanted me to live forever.   But I know better.  It was not my longevity that the ‘tweakers’ were concerned about, it was theirs.   It reminded me of that old song by Lobo, ‘Love me for what I am’.

I can’t give any more of my soul away

And still look myself in the mirror everyday

I can’t change any more

Of what makes me be myself

And still have enough left

Not to be somebody else.

Only, I had nothing to do with it.  It was all done to me.  Not only was I twisted and turned, I was read and interpreted.  I was named and identified.  It’s the worst thing I can think of.  I was never myself but always what others saw me as.  For their own purposes of course.

So I am not fooled by this mending talk.  Amending, rather.  It’s not about me.   I have a grandaunt on the other side of the world.  (A)mended 27 times in 225 years or roughly once every 9 years.  Well, she had a serious birth defect and had to have some 10 operations in her first year.   So if you don’t count those it’s about on ‘repair’ every 13 years.  And here I am, just 36 years old and already ‘fixed’ 18 times.  That’s once every two years on average.  I am beginning to think that this is because no one realized I was deformed at birth. 

Anyway, now there’s talk of further fixing.  I’ve suffered 18 operations.  It takes a toll on the old body you know.  I don’t think I can go under the knife again and survive.  That’s only so much a body can take.    I am done.  I don’t want it.  I want out.  I want out like that dramatic line in Kingsley Peiris’ catchy song, Podi Kale Maranda Welle. 

රුචිරානනී අහන්න.....එක පාර මා මරන්න

“Listen, beloved!  Kill me once and for all!”

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The original sin of selection

The fate of the Chief Justice is now officially in the hands of the Parliament and thereafter the President, in the event that Parliament recommends removal from office.  The fate of the dignity of her post, parliamentary procedures, impeachment processes and the nature of power separation between the executive, judicial and legislative arms of the state will remain a matter for constitutional amendment, interpretation and the extent to which the primacy of public will and public trust congeal within these institutions and processes. 

Time will tell. 

For the last several weeks the rhetoricians have ruled.  The law and due process have been overshadowed by a preference for emotional outburst.  The nation Is used to parliamentarians behaving like hooligans, so their outbursts don’t surprise any more.  However, when lawyers (individuals who are supposed to ponder words spelled out in black and white) resort to smashing coconuts and appealing to astral entities whose existence is fictional, only those motivated by narrow political objectives can cheer. 

All things in this world are subject to the timeless truths of birth, decay and death. People come and go. Institutions are more resilient but are themselves subject to alteration.  Individuals can resign or be sacked, but the posts they hold survive them.  One can impeach a Chief Justice or a President, but one cannot retire the post of Chief Justice or sack the Presidency without risking anarchy unless alternative structures of justice-determination and executive authority, respectively, are legislated. 

While political circles have been busy pontificating on the legality of process, pointing fingers about vindictiveness and high-handedness, the manufacture of guilt and so on, there’s been a conspicuous silence about the genesis of the current tension between executive and judiciary, which has translated into a legislative-judiciary battle. 

The Constitution provides for appointment and removal.  The current debate focuses on ‘removal’.  The point is that ‘removal’ is consequent to appointment.  The public service does have recognized and established procedures of appointment.  Over the years, these rules have been bent for reasons of political convenience. On certain occasions even laws have been changed to facilitate appointment and promotion of favorites and the politically and administratively pliant. 

If the CJ is found to have been out of order, then the question that needs to be asked is ‘was she not properly screened?’  It goes for other ‘high posts’ too, including diplomatic postings.  Whatever the confusion regarding propriety of impeachment process may be, there is absolutely no doubt that this country woefully lacks a process of screening candidates to important positions in the administrative service and of course the senior most position in the judicial system. 

For all its many flaws, the system in the USA is far more stringent when it comes to screening candidates.  There are congressional and senate committees where candidates are grilled not just on track record, but decisions made and all manner of affiliation, official, semi-official and private.  In Sri Lanka, the notices for submission of public query come late, in small print and are largely ignored.  The signature of the process, if there be one, is rubber-stamping. 

In the case of CJ-appointments, especially since 1978, we have seen ‘friends’ being favored over seniority and competence.  This has led to an erosion of trust in both appointer and appointee.  The current tensions make for an ideal situation to revisit the appointing-moment and correct the obvious flaws which have at least in part snowballed into what some have called a constitutional crisis or worse a crisis of the state. 

Individuals come and go; systems are more sustainable.  Flaw in system naturally lead to error in selection and exacerbate the ill effects of a flawed appointee.  The entire script then has to be revised.  From scratch.  ‘Scratch’ here would be ‘appointment moment’. 

If one positive is to emerge from what has turned out to be a bitter and invective-filled process that is unhealthy to society as a whole, then it is a firm decision by all concerned to correct the relevant statutes on selection.  If we get it right at the proverbial ‘Square One’, future generations will be spared the hooliganism from all quarters as such we are witnessing today. 

['The Nation' Editorial, December 9, 2012]

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A note on resilience

Sri Lanka is a resilient nation.  The people of Sri Lanka lived through two bloody insurrections, three decades of war, and all manner of natural disasters capped by a tsunami that left hundreds of thousands homeless and over 40,000 dead.  And still we smile. 

 

When we talk of disasters, however, there is one which we routinely overlook: the 1978 Constitution.  This is strange, especially since the 1978 Constitution, both in article and lacuna, veritably presides over the playing out of tensions between the executive and judicial branches of the state (which have spilled over and found expression as tensions between the judicial and legislative branches).

The bone of contention is of course the Parliamentary Select Committee (PSC) appointed to investigate allegations against the Chief Justice (CJ).  The Supreme Court (SC) is currently in the process of hearing a petition querying the constitutionality of the PSC, a process which rebels against the principle of natural justice (where the CJ essentially is part of a process determining the legality of a course of action initiated against her).  Those against this move offer that it is pregnant with selectivity and vengeance.  Parliament has summoned the CJ to respond to charges and the SC seeks to summon the Speaker. 

As things stand, if the contentions of lawyers petitioning the SC are upheld, we would have to conclude that the CJ is above the law.  Since integrity, ethics and respect for institutions and posts such as the ‘Chief Justice’ have left the building a long time ago it is unlikely that any of the parties will back down from positions.  In a post-1978 Sri Lanka where the executive, legislative and judicial arms of the state have on numerous occasions encroached on one another’s territory, acted in high handed manner, shown unconscionable parochialism, selectivity and malice, the only word to describe things is ‘unfortunate’.  One should qualify thus: the only ‘generous’ word. 

All this serves only to turn playing ground into happy hunting ground for forces pursuing narrow political agenda which could very well result in Sri Lanka’s sovereignty being compromised and the people’s vulnerabilities further exacerbated.  The issue has been politicized from the beginning by all key players, a state of affairs which naturally provides a lot of ammunition for detractors of the regime and general Sri Lanka haters. 

Much of it is beyond control of course.  Sections of the Opposition, for example, sorely lacking in the proverbial straws to cling to, would naturally find in the CJ a new pretender (like it flirted with former CJ Sarath N Silva and like it leased out, in Sajith Premadasa’s now famous words, the presidential candidacy to Sarath Fonseka).   Those who saw the LTTE as a convenient ally in destabilizing the country (and later the Rajapaksa regime) and who now have lost that little money-spinning toy are likewise straw-clutching.  Let there be no doubt whatsoever that this issue will be taken up in Geneva in March 2013, even though there is nothing ‘unprecedented’ or horrific about a CJ being impeached. 

The best that the Government can do is to resist temptation to play the politicization game. 

The poster that was put up in Colombo this morning, with the legend ‘Lajjai Methiniyani’ (Shameful, Lady!), referring unabashedly to the CJ is an example of unnecessary (and distasteful!) politicization of the issue.  There is constitutional provision, one can argue.  If there isn’t then there is room for relevant amendment.  There is a process that’s underway.  The Government ought to let it run its course without frilling process and feeding those elements that would make things darker than they really are. 

To get back to resilience, it is pertinent to ask whether the current ‘impasse’, so-called, has the attention of the masses that some may say it deserves.  If there is ‘concern’, it seems largely hidden.  As prominent lawyer and political commentator Gomin Dayasri pointed out if the CJ is not ‘hero-to-be-followed’ in the way that Sarath Fonseka was (for some at least and for some time at least), it has something to do with how the people view the judiciary and the Army respectively.  The latter, people feel, they owe something to.  Not the former. 

What’s happening in the SC and in Parliament therefore has not prompted anything close to mass objection.  Moves against the CJ is not covering anyone in glory, true, but on the other hand the CJ’s moves to turn the Judicial Services Commission into a trade union is not eliciting any cheers either.  Lawyers and judges have already desecrated the courts by turning them into places where coconuts are smashed to obtain succor from deities who are supposedly amenable to vengeance extracting contracts.  The Parliament is and has been home to a lot of hooliganism.  If there’s more ugliness in store it wouldn’t surprise anyone.  It probably will spill into Geneva in March but that won’t surprise anyone either. 

Regimes thrive, become unpopular, survive unpopularity and give way.  It has happened throughout history, and as President Mahinda Rajapaksa is reported to have recently told MPs of his party, no one should harbor the illusion of political immortality.   Judges, likewise, have and will have their day. They too will pass. 

The people remain.  They have suffered much and survived much.  They are resilient. 

 

 

 

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How about a third Republican Constitution?

I read with interest Laksiri Fernando’s avuncular response (‘Devolution Talk’) to a comment on the 13^th Amendment I had written a few weeks ago.  He’s asked me to ponder the 17^th and 18^th ‘syndrome’ of the Rajapaksa administration.  So, first things first, I will respond to this suggestion.

I have written dozens of articles on the 17^th Amendment, from the time it was passed in 2001, pointing out its errors and lacunae and suggesting corrective measures.  As for the 18^th, my objections were recorded in the Daily News as well as other newspapers I wrote for at the time.  So the ‘political past’ that he talks of is as much an imagination-figment as the idea as ‘pondering’ is ‘difficult’ for me.  I put it down to ignorance, which of course is no crime.

Fernando believes that the abrogation of the 13^th would spell disaster for Sri Lanka’s external relations.  I believe otherwise.  He believes that the 13^th ‘appears’ as imposition due to inept legal drafters.  ‘Appears’, he says and it astounds me.  India thrust it down our throats and JR conveniently ignored Supreme Court directive with respect to the referendum clause.  The document was only part read before the vote was taken in Parliament.  Fernando also ignores the fact that the 13^th sought to resolve a problem that had nothing to do with territory.

I have written extensively on the ‘white elephant’ element of the 13^th.  Two thirds of monies allocated for the Provincial Councils go to maintain them, for instance.  The logic of multiple economic centers in regions that are extremely unequal in terms of resource endowment rebels against devolution.  And if devolution is taken to its logical conclusion, we could have the Western Province (which contributes close to two-thirds of GNP) asking why it should subsidize Uva (for example).  A lot of regional ills can be dealt with by expanding administrative decentralization and does not require power devolution.   

Fernando wants me to admit that my perspective on the subject has little to do with the weaknesses of the present system.  There is nothing to ‘admit’.  I’ve been clear about it.  I oppose the 13^th for multiple reasons, the economic ‘logic’ (or rather lack of logic) being but one element of my opposition.  The only logical way to devolve would be in accordance to a model where provincial lines are re-demarcated so as to correct for anomalies in resource endowment.  I’ve spelled this out many times.    

It is a pity that Fernando hangs on to sarcasm and doesn’t get it either.  Indeed he confuses my objections to his gonibilla posturing regarding the international community with contentions about the 13^th .  Sad. 

And yet, Fernando is not wrong when he says, ‘The main detractors of proper development, stability and people’s sovereignty, if those are the concerns, are within the country and within the ruling clique itself’.  He could also add the UNP, the JVP and many anti-regime thinkers who are slaves to development paradigm even as they object to its executors.  The whines about the 17^th and 18^th come from those who have a sorry track record when it comes to democracy and freedom and Fernando strangely doesn’t seem to notice this.

Fernando misses the political implications of horizontal democratization via devolution in a cartography that is nonsensical and pandering to secessionist myth-makers.   It is natural for someone who has blindly accepted the Eelamist position on devolution to be happy about current demarcations.  He won’t use ‘white-drawn’, he says.  It’s white-drawn and brown-accepted.  That’s a brown sahib thing, but Fernando is perhaps not schooled enough in cultural and social politics to understand such things or how the affirmation of a colonial error when cuffed to land-grab logic of myth-mongering communalists necessarily exacerbate problem and postpone resolution.

I am happy that Fernando has put it down in black and white that there’s no connection between Tamil grievances and territory-based solution.  Yes, it is unfortunate that elections for the Northern Provincial Council have not yet been held.  The excuses offered are thin.  Elections need to be held.  It won’t erase the errors of the 13^th, but there is (as I have said many times) danger in refusing the implement constitutional provisions (even if they are erroneous) or being selective in implementation.  What is required is the abrogation of the 13^th.   

What is required, over and above that, given all the problems of the 13^th, the hope and flaws of the 17^th , it’s nullification by the 18^th , all of which have separately and together turned an already anti-citizen document (the 1978 Constitution) into a made-to-make-and-entrench-dictatorship, not to mention widespread agitation about the Proportional Representation system and decades long calls for doing away with the Executive Presidency, is for a new constitution. 

 

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Sorting out Executive-Judicial tensions

There is the executive.  Then the legislative. And there is the judiciary.  ‘Separation of powers’ refers to lines demarcating territory and jurisdiction.  These are certainly not hard lines, but nevertheless the very existence of boundary makes for checks and balances.  When the lines are soft and pliable, when they are porous, it means that anarchy of the worst kind is around the corner.  Thankfully we are nowhere close to that.  There are tensions, yes, and there always have been, not just in Sri Lanka but all over the world.  When tensions are not sorted out through established procedures, democracy inevitably suffers. 

A ‘situation’ has arisen with respect to this ‘territoriality’.  The Judicial Services Commission (JSC) perturbed by allegations that the Chief Justice (CJ) had been ‘summoned’ by the President, issued a statement demanding that the executive keep its hands off the judiciary.  The Secretary of the JSC, who authored that demand, was later beaten up by unidentified assailants.  The response from Government spokespersons have ranged from condemnation to trivializing. 

It has been pointed out (see ‘This is my nation’, September 30, 2012) that ‘if there was a concerted effort to undermine the independence of the judiciary, this would not be the first occasion and more pertinently, this is a government that has the least need to do so’. 

It is not common for the executive to be peeved by the judiciary and vice versa.  J.R. Jayewardene’s hand-picked CJ, Neville Samarakoon, upon appointment steered clear of executive reach, prompting harassment from JR.  Samarakoon was brought in from nowhere in 1978, when the 2^nd Republican Constitution came into effect.  JR brought down the number of Supreme Court judges from 19 to 7, effective demoting 12 of them to the Court of Appeal.  At the time, he let them retain the ‘Justice’ title and dismissed demotion-complaint by saying it was part of the new constitution.  Seven of these twelve were in a ‘pool’ of judges.  When the executive brushed aside a salary hike request, Samarakoon responded by detailing the President’s salary while addressing a gathering at the Raja Sinnathurai Educations Institute at Mile Post Avenue, Colombo 3.  JR retorted that the CJ was out of order.  When JR was sworn in for his second term, the CJ not only arrived late, but looked askance during the ceremony.  After Samarakoon retired, JR appointed Parinda Ranasinghe ahead of the more senior and reputedly ‘harder’ Justice Mark Fernando.

Sarath N Silva, who was similarly hand-picked by Chandrika Kumaratunga, was certainly not a yes-man.  His determinations certainly helped Mahinda Rajapaksa win the Presidential Election, even though they may not have been designed to facilitate this outcome.  Silva was not just independent to a fault, he even transgressed boundaries, venturing on several occasions into executive territory. 

There are two points that need to be made.  First, that even though the President does the appointing, once appointed, the CJ, on account of position-stature and probably acquired standing warranting appointment in the first place, comes into his/her own.  It is not impossible to remove a CJ constitutionally, but quite about the legality of such an eventuality, good faith needs to be established and obtain general public approval.  The latter is easier said than done.  Impeaching a CJ is out of order for many reasons and it is heartening that Minister Nimal Siripala Silva has effectively squashed such rumors. 

Secondly, Chief Justices show a pattern of being more assertive and less concerned about hurting executive sentiments when the relevant President is at term-end.  Sarath N Silva’s ruling on when Kumaratunga ends her term came late in the day.  Similarly, he started chewing on executive territory only when there appeared to be a possibility of Rajapaksa being defeated by Sarath Fonseka.  The current tension may be traced to similar perceptions.

These tensions are therefore not abnormal or unprecedented.  A sense of responsibility, especially with respect to the need to separate powers, by all parties generally helps iron out issues which also tend to be subject to media-inflation.  Harassment is possible by both parties but is best avoided.

One thing is clear.  Problems between the Executive and Judicial arms of the state should not be resolved by Choppe Aiya.  That would spell doom for both spheres and the general public too. 

 

 [First published in 'The Nation', October 14, 2012]

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