Kishali Pinto Jayawrdene
As Sri Lanka’s Parliament passed the 20th Amendment Bill enhancing the powers of the Presidency on Thursday while the country erupted in covid-induced flames, there is delight in watching the Rajapaksa brotherhood being hoist with its nationalist petard. A Government which had marched triumphantly into power blaring its Sinhala-Buddhist credentials was pushed to secure a two thirds vote for the 20th Amendment Bill primarily through the crucial support of minority opposition politicians.
Consternation of the Medamulana faithful outside the House was evident. Just days ago, a hostile upsurge of a sizeable segment of the Buddhist monkhood against the amendment was evidenced in an (un) holy combine with the good Cardinal Malcolm Ranjith. The protest was led in the most glorious of ironies by the Abhayarama Temple, the headquarters from which the Rajapaksas had plotted their comeback from defeat in 2015. ‘We will never forgive this Government if it does not listen to us, we brought it to power’, the monks thundered. Well, as it so happened, the Government did not listen when it summarily disposed of the clause prohibiting dual citizens to enter Parliament.
That opposition minority votes were grabbed to pass the Bill on the floor of the House is sure to add more incendiary flames to an already scorching fire. So this ‘revolt in the temple’ had some distinctly amusing moments, one must confess. Government spokespersons extolled the virtues of a ‘global citizen’ in struggling to explain why the political entry of dual citizens is not necessarily bad as opposed to an ultra-nationalist exclusive citizenship. Suddenly screechingly anti-globalisation ‘pohottuwa’ types got more reasonable than even despised ‘liberals’ skulking in Colombo’s clubs, it appeared.
And those who once ranted that the dual citizen clause would be passed over their corpses were tamed by none other than an ‘emotional appeal’ by the President, we were told. The new Constitution will ‘not’ have this provision, they blabbered and voted ‘aye. More blustering is undoubtedly in store when ultra nationalist excitement of the South reaches fever pitch with the visit of US Secretary of State Mike Pompeo during the coming days.
What way will this revolt turn? Will it fizzle out like a damp squib or is this the beginning of a more serious disaffection of monks versus the rulers, in regard to which Sri Lanka has historical and ominously dangerous harbingers.
But there was pathos too along with the tragi-comedy, As the House painstakingly plodded on with opposition parliamentarians peppering their largely insipid speeches with warnings of the great religious teacher and philosophers that a nation which lapses into autocracy will not survive, covid-19 exploded in the streets.
Indeed, the Government’s remorseless prioritising of the 20th Amendment despite this crisis showed the iron hand in an iron glove. If anyone had any illusions about (even) the glove being soothingly velvet, those assumptions must surely be discarded.
By midday, Gampaha District and portions of Colombo District were clamped with curfew. Epidemiologists were admitting that covid-19 had now reached the stage of community spread in the country. Thirteen out of twenty five Districts were labelled as covid-infected with the others were categorised as high risk. Hospitals in Colombo faced increasing shortages in accommodating covid positive patients, quarantine camps overflowed and the fourteenth patient succumbed to the deadly virus.
Regardless, the Government was intent on ramming through the 20th Amendment Bill, come hell or high water. And the fact that the Bill, as originally presented in a far worse form, was revised later was not due to willingness of its makers to accept criticism and amend behaviour. Rational pleas made by retired judges, auditors or professionals fell on deaf ears at first. This obnoxious amendment would have passed the House as originally presented without a hum of conscience if the tide of public opinion had not inexorably gathered strength, aided in part by the Supreme Court Determination.
The Court, in its majority, stood firm at least on the vital issue of retaining the ability of citizens to file fundamental rights challenges to presidential actions. This is a significant development, as discussed earlier in these column spaces, whatever the Court’s position may be on other clauses of the Bill. These remain to be dissected due to limitations of space. And the fact that this Determination was ‘made available’ in the public arena some days earlier to the formal announcement by the Speaker on Tuesday made nonsense of a Government attempt a day earlier to claim that it had reversed its position on Presidential immunity voluntarily.
The Government sought to explain this magnanimous reversal by claiming that it had changed its mind, because it is ‘fully confident’ that the President will not violate the Constitution and that the courts would not find him liable of the same. Apart from an implied second guessing of how the apex court would rule on future presidential actions, which veers dangerously close to the legally impermissible, this was of course, pure baloney. The 19th Amendment’s relaxation of Article 35(1) was retained simply because the Court had said that otherwise, that clause needed a referendum.
This propaganda was recognised for what it was only because the Determination had fortuitously reached the public domain earlier than the unsatisfactorily short time between its formal announcing on the floor of the House and the consequent debate. Opposition parliamentarians who initially protested asking how this ‘leak’ had occurred, soon subsided in their complaints, probably as wisdom dawned albeit a bit late. They and others may be reminded that the question here is if it is ‘correctly’ confirmed that the Determination has passed the seal of the Court and the Court is functus so to speak. This must be distinguished from the passage of a Determination of the Court to the Office of the Speaker.
But to return to the primary issue, the President is now given fair warning that his actions in office is liable to be challenged for constitutionality during his term of office and (as was the case already) after he relinquishes office. That must surely be a check on aggrandizing behaviour even by a now all-powerful President. And even with the dismay that the 20th Amendment has justifiably given rise to, some perspective may be retained.
Despite the natural inclination of lawyers to believe that all hangs upon the law, Sri Lanka’s history has been to the contrary. The ridiculous hype surrounding the 19th Amendment in 2015 was warned by many, including this columnist, to be greatly exaggerated. It was repeatedly cautioned that this amendment, a compromise as it may be between warring camps, contained the inevitable seeds of its own destruction. And so it came to be.
Similarly, the 20th Amendment, soon to be grafted into our Constitution, as ugly or even as grotesque as it may be, does not spell the end of democracy for Sri Lanka notwithstanding hysterical wailings to that effect. Certainly this will threaten timid democratic gains of the past few years. But, as we may remind ourselves, at every point that this nation has reformed democratically, this has been as a result of battles outside the Courts, the Constitution and the law.
Sometimes in fact it has been despite the impact of all these three as judges failed us, as legal punditry proved miserably inadequate and voices of conscience sold themselves, as much as Judas did, for a handful of silver.
There is no reason to think that it will be different this time around.