Kishali Pinto Jayawardene
Much like the covid-19 virus which attacks the respiratory systems of victims with lethal force and has brought the global North virtually to its knees, Sri Lanka is being invaded by an anti-democracy virus. We are told that, democracy leads to bickering, that a strong man is needed to rule with a rod of iron, that civil liberties do not matter and that constitutional amendments that fetter the powers of rulers are a nuisance.
A deadly familiar cry
That chant is drummed into our ears as Parliamentary elections approach in a backdrop of undermining whatever little democratic checks and balances left. Re-installing authoritarianism cloaked in the thin garb of decisive rule to benefit the country has reached feverpitch. The Pohottuwa cry to give us a two-thirds majority in the Parliament so that we can repeal the 19th Amendment and restore stability to the country is disingenuous if not contemptible for that very reason.
Indeed, this cry would be amusing if it was not so deadly familiar. This is exactly how politicians commandeered the country for their ruinous purposes in the past. This ranged from leftist politicians who dismantled Sri Lanka’s judiciary and the public service to become subservient handmaids of the political establishment in the early seventies to the Jayewardene installing of a monarchic Executive Presidency. The Rajapaksa decade of enthroning one-family rule underlined by brute thuggery and overt racism for political gain was an organic development in that background.
In between, the Kumaratunga Presidency epitomised huge promise of democratic gain at the start, much like the face of 2015, which was soon undermined by coercion, confusion and most chillingly of all, the politicisation of the Supreme Court from which the Court has never quite recovered, even two decades hence. Yet even with all that unhappy history, what faces this country at this juncture is markedly different.
Legal charades and the Rule of Law
The 2019 Presidential victory of Pohottuwa backed candidate, former President Mahinda Rajapaksa’s brother, Gotabaya Rajapaksa was made possible by bumbling idiocies and criminal failures of the Sirisena-Wickremesinghe combine during 2015-2019. Even after that victory, lessons have not been learnt.
Poisonous squabbling between the leader of the United National Party Ranil Wickremesinghe and his deputy Sajith Premadasa has left the Opposition in disarray. The UNP-led Wickremesinghe and the Sri Lanka Freedom Party (SLFP)-led Maithripala Sirisena have both placed themselves firmly beyond the pale of being considered as credible national leaders.The brave front put up by the Premadasa led alliance, including minority parties will not suffice to cover the credibility gap.
Consequently astrologers need not be called upon to prophesy the result in the upcoming Parliamentary elections though many may argue that a two-thirds victory in parliamentary seats for the Pohottuwa will be far fetched. Even so, there is little doubt that the path will be left wide open for the Rajapaksa-led Pohottuwa. So what will that lead to?
For months, we have looked on dumbfounded as a peculiar charade is conducted before our eyes as arrest warrants issued by court on many a state personage are disregarded with ease by law enforcement officers even while these personages frolic at state events.
First it was a missing Admiral of the Fleet, who is still ˜missing” in court despite repeated warrants being issued. Government politicians defend this atrocious flouting of the Rule of Law by inferring that the fact finding Presidential Commission of Inquiry (COI) into political victimisation could basically take over the judicial function of determining if the prosecution in issue was proper or not. Let us not forget also that the case in which the warrant had been issued relates to one of the most shameful abuses in Sri Lanka’s history during the Rajapaksa (the First) Presidency when innocent individuals including teenagers were abducted for money with the connivance of state agents and then a disappeared.
Undermining of the Court
Then we had perhaps for the very first time in Sri Lanka’ s chequered history, a Secretary of this COI being summoned before the Permanent High Court Trial-at-Bar through an arrest warrant. This was to enforce the court directive to hand over files pertaining to a case of illegal elephant possession by politically protected individuals, being heard before it. That extraordinary move was as a result of her avoidance of the court directive.
This week, a former Minister of Finance implicated in the infamous Central Bank bond scam who went “missing” after an arrest warrant was issued, presented himself before the Magistrate’s Court with relief writ all over his face only after the Court of Appeal ordered this week that the Magistrate’s Court should not proceed to take any action against him until the matter was decided in the appellate court. The Court ruling was in response to an application filed by the former Minister arguing that the warrant to arrest him was illegal.
These are not isolated occurrences, as strange and as bizarre as they may seem even to those long used to the tortuous convulsions of law and politics in Sri Lanka. The unequivocal refusal of the Attorney General to halt ongoing prosecutions in court on a direction of the COI is just another facet of this same problem. Simply put, when arrest warrants issued by courts are disregarded, it is the Rule of Law that is mocked at.
Frightening pointers to the future
And as frequently observed in these column spaces, there can never be a clash between a COI and a Court for the law places each in separate categories of functioning. In fact, even though there has been many instances where a particular case has been concurrently inquired into by a COI and a court in the past such as the case of the disappearances of schoolchildren in Embilipitiya during the second youth insurrection in Sri Lanka, an unseemly tug-of-war over files between both would have been unthinkable. The fact that this is now happening speaks to the degradation of our systems, nothing more, nothing less.
So for those who are still too blind to read the signs, these are frightening pointers to the future. It is too soon meanwhile to say if the best laid plans of mice, men and Sri Lankan politicians to get rid of bothersome constitutional obstacles and annoying judges will go astray if the forthcoming elections are impacted by the spread of the covid-19 virus.
Regardless, what must be kept in mind is that replacing oftentimes chaotic democratic governance with authoritarianism only results in a nation being unable to breathe with its respiratory systems of protest and dissent becoming choked off. It does not lead to things working properly. Those who protest to the contrary are fools, to put the matter mildly.
But have we not learnt this lesson many times, each time surrendering hard won democratic victories in the face of state repression? Are we doomed to relive past agonies of those many evils over and over again, as if this land is inflicted with a strange and lingering curse?