Kishali Pinto Jayawardene
Close to one year since the change in political leadership in Sri Lanka, glaring peculiarities of bad law-making decisions have begun to cling to this Government much like an unpleasantly persistent odor.
Almost without exception, each and every draft law presented to the House displays a manifest lack of clear-headedness. Such laxity may be excused in respect of a singular instance or two. But when this becomes a matter of general habit, it is exceedingly worrying even with all the good will displayed towards an administration inheriting a decade of Rajapaksa misrule as an unenviable legacy.
Interjection of bad laws into the mix
And when confusion is evidenced in relatively uncomplicated matters, more complex processes of accountability attract greater doubts. Even as the Minister of Foreign Affairs talks winningly of special judicial mechanisms ensuring justice for war-time abuses, the dissatisfaction of the Northern polity increases day by day. The Witness Protection law remains largely confined to theory. Policy makers have expressed little willingness to amend its more obvious flaws, such as the lack of independence of its Protection Division. In the alternative, it is a mystery as to how one can talk of effective truth and reconciliation processes?
Beset on all sides, the fear is that before long, this Government will be caught pincer-like between the rumbling discontent in the North and the seemingly dormant but simmering Rajapaksa-tide in the South, with much of the ‘peoples’ power’ movement being diluted through the co-option of its members into government ranks.
The interjection of bad laws into this unhappy mix, conceived of without public consultation by a few misguided spirits makes matters even worse. I must stress that this concern is not confined to the Government’s proposed hate speech amendments to the Penal Code and the Criminal Procedure Code, though that example is bad enough. Tabled in the House by the Government with grandiose ceremony this week, the amendments were hastily postponed immediately thereafter with far less grace. The spectacle of a government presenting and postponing Bills with the disconcerting rapidity of a boomerang is not a pleasant sight.
Attracting unlikely partners in dissent
The storm of protests provoked by the Bills included incongruous partners, each on the extreme far end of Sri Lanka’s religious and ethnic divide. The Tamil National Alliance (TNA) and the radical Bodu Bala Sena (BBS) protested unsurprisingly from directly divergent perspectives. The TNA expressed strong concern that the proposed amendments replicated feared provisions of the Prevention of Terrorism Act (PTA) under which journalists, politicians and dissenters had been summarily jailed through a subversion of the judicial and legal process. The fact that the Bills would have permitted arrests without a warrant in respect of new offences buttressed these concerns.
On its own part, the BBS objected to the proposed laws evidently fearing their impact on inflammatory statements inciting religious and racial hatred which it excels in. The point, of course, is that sufficient legal provision, including the Penal Code and the International Covenant on Civil and Political Rights Act (ICCPR Act, 2007) exists to quell such incitement. The BBS was allowed to dance unrestrained under the Rajapaksa Presidency not due to the lack of law but according to a political decision of that Presidency to use hate mongers for political gain. In any event, the ICCPR Act has been virtually unused since its enactment in regard to its other provisions as well.
In the midst of the melee, constructive interventions took place through an exceptionally well timed statement by the Human Rights Commission of Sri Lanka (HRCSL) as well as a letter signed by members of the public, drawing attention to the ill wisdom of these amendments.
Greater coherence needed in government
The fact that the parliamentary debate on the Bills was postponed could perhaps be taken positively in that it is responding to public scrutiny. But a larger and far more obstinate question looms large. Why is greater care not taken before such laws are presented to the House in the first place? Indeed, it is a mystery as why the Government insists on cluttering up Sri Lanka’s statue book even as prevalent law is treated as if it is non-existent to all intents and purposes.
Undeniably there must be greater coherence in government as well as in law-making. The draft Right to Information (RTI) law, approved by the Cabinet this month, is perhaps one exception to what is fast becoming a general rule of ‘yahapalanaya’ (good governance) law-making disarray. But those associated with the drafting process will be aware of the difficulties that emerged when it was sought to bring the draft into consonance with modern RTI standards in the region and across the world.
Even so, the drafters of the 19th Amendment, now a part of the Constitution, included a retrograde constitutional provision on RTI which significantly contradicted the RTI Bill, also being drafted in parallel processes at the time. Ironically even though government lawmakers congratulated themselves in enacting a constitutional RTI, the simple fact was that this detracted from the strength of the separate RTI law. Denials to information in the constitutional RTI provision were archaic, overbroad and vague, as pointed out editorially in this newspaper and these column spaces.
If this constitutional provision is not amended, a conflict may well emerge in the interpretation of dual RTI regimes. Lacunae in other respects in the 19th Amendment have been dissected at length. At that point, the excuse was that an uncertain interim government was in power. But the sympathetic leeway which one gives a honeymoon coalition is fast yielding to a far harsher assessment that does not bode well for the future.
These should not be choices before us
Where former president Mahinda Rajapaksa was concerned, one did not expect such niceties. The Bills presented during that time were pushed through with the force of a sledgehammer, directly or indirectly aggrandizing his stranglehold on power. Then we had abuse of power. Now we appear to have what some may uncharitably label as incoherence in power.
It may be debated by those inclined towards the nonsensical that incoherence in government is better than abuse of government.
Certainly however, these should not be the choices put before us by a Presidency and a Government elected to office on vastly different expectations.