Kishali Pinto Jayawardene
Existential perils to the democratic, constitutional model on which the Sri Lankan Republic was constructed now quickening apace, does not even have the excitement of novelty to spark the imagination.
Familiar patterns of militaristic governance
There is nothing very special in the creeping militarisation of governance that we are witnessing. From increasing numbers of miltary men who are elbowing public servants out of positions of high state responsibility sans national protest to a President who commands the remainder in the public service to ‘obey or else…’ and a global health pandemic being unquestioningly conflated with fighting an enemy with our brave troops, this is a familiar pattern. So too is the phenomenon of militaristic monks who openly announce that covid-19 has made elections irrelevant and that the country should just be ruled by the President and his men.
Alas, there are no redeeming romantics here, no flourishing figures of mettle roaring against popular historical injustices who may have at least enlivened the singular boredom of this common or garden path transition from a flawed democracy to a militaristic model in all but name. This is the same reasoning on which it seems that a nation has accepted the arrest of an attorney by state agents citing no other reason at the time of arrest, than being ‘directly in touch’ with suspected terrorists, apart from other grounds now being advanced to justify the same.
And legal doctrines of great importance, which would have been ordinarily fiercely contested with moral authority, striking a chord in the democratic heartbeat of the nation have become nothing more than sullen and undistinguished choruses, recited by party lawyers fundamentally lacking credibility irrespective of whether they are for or against. Take the application of the ominous Doctrine of Necessity, advocated variously to justify the non-summoning of Sri Lanka’s old Parliament and to excuse actions of the executive argued to amount to a constitutional crisis.
Havoc wreaked by unprincipled application of law
It is not as if we are unacquainted with the havoc that this doctrine has brought about, from Fiji and Grenada to Nigeria and Pakistan, as was editorially noted in the pages of this newspaper recently. It is also not as if we are any stranger to the accepted principle that the Doctrine of Necessity is strictly straitjacketed in law to apply only in situations where there is no existing remedy to respond to an extraordinary crisis. Indeed, the medieval jurist Henry de Bracton who first proposed that ‘that which is otherwise not lawful is made lawful by necessity’ would have possibly been aghast at the variety of convenient uses for which his doctrine has been employed, ranging from strongmen to judges palavering to a new political status quo.
Unsurprisingly these have been in less than healthy situations and by less than democratic states. The widely discredited judgement by the Supreme Court of Fiji justifying the actions of the Commander of the Fijian Military Frank Banainarama in dismissing the lawfully elected Fijian Prime Minister and legalising the 2006 military coup is a case in point. In a consciencelessly adroit sleight of hand, this decision legalised actions of the Military Commander saying that he was protecting the Republic in a context where ‘foreign military forces were in Fijian waters and advancing towards the Republic.’ Closer at home and far more recently than the example of the Pakistani judiciary’s use of the doctrine to justify the extra-constitutional use of emergency powers, there are more cautionary tales.
The Supreme Court of Nepal (SC) employed the same reasoning to extend the term of the Constituent Assembly (CA). This was even though the Interim Constitution had clearly declared that unless and until the CA dissolved itself earlier, the time period should be two years, subject to a state of emergency being declared and even so, the extension can then only be up to six months. Regardless, an amendment (Ninth Amendment Bill) seeking to extend this period for a further three months was upheld by the SC on the basis of the doctrine of necessity despite public outrage which persists to this day.
Law does not exist in a vacuum
Across the Palk Straits, adventurous Indian judges have sometimes gone so far as to apply this legal doctrine to the point of absurdity in administrative law to justify disposing of the rules of natural justice in some remarkably problematic decisions. But as such debates take place in this country, those who grumble that constitutional matters are not accorded the proper weight that is their due, need to be reminded ofa stark fact. The law does not, of itself and by itself exist in a vacuum. From 2015-2019, the rejuvenation of Sri Lanka’s constitutional and legal systems as the lodestar of governance was dangerously undermined by crafty, cynical minds, motivated largely by political considerations.
This is a period irreversibly remembered for the Central Bank bond scams and the 2019 Easter Sunday attacks as punctuated by constitutional drafting that went nowhere, a transitional justice process that was still born and political deals that saved those who had robbed the national purse regardless of a trumpeted anti-corruption drive. Thus, screeching at this point to mind the Constitution when the other side is in power is not guaranteed to have much popular appeal.
That is precisely why this predictability, this insufferable and intolerable boredom has come about as abstract arguments and counter arguments rage above the heads of a covid-19 stunned population. Again, it is this vacuum of moral authority which has put us into a situation where the President can command the public service to do his will while at the same time and naturally so, prefacing his command by reminding that he will not order any illegal acts. Yet the problem is that, in a state where the source of authority traces itself to a single point, who is to determine what is legal and what is not.
Not the ideal tonic for dysfunctional rule
Four and a half years of a Government (Ranil Wickremesinghe) and a Presidency (Maithripala Sirisena) violently at odds with each other which led calamitously to a collapse of governance, the standard of discipline above all and unquestioning adherence to orders may seem to a disgruntled citizenry like the ideal tonic that the doctor ordered.
But as deceptively appealing as this may seem, that is exactly the same path followed by many other failed nation-states, let us not forget. As they have learnt to their cost, dysfunctional rule canot be sent to rights by military style commands. If this project of up-ending the constitutional Republic succeeds, Sri Lanka will just be one more to add to that number, despite boasts of our past civilisational glories, our ancient histories. For that, not only the Rajapaksas are responsible, let it be said.
We may bristle angrily at this indictment but richly deserve it nonetheless.