Kishali Pinto Jayawardene
The Sri Lankan political establishment’s ‘dirty tricks’ department seems to be in full swing as the nation is presented with a dizzying array of constitutional amendments, variously titled ’21st Amendment’, ‘21A’, ’21B’, ‘22A’ and so forth.
Constitutional Babel, ‘a confusion of tongues’
It says much for the combined idiocy underlying this process of ‘constitutional reform,’ (for want of a better term), that even the originators of these amendments are uncertain as to which clause belongs to what. Their bewildered faces and incoherent explanations when microphones are brandished before them, illustrates this very well.
Other politicians sitting in the opposition benches meanwhile enter into violent quarrels over the correct numbering of the amendments. All in all, this is constitutional Babel, in the Biblical sense of that term.
That is, ‘a confusion of tongues’ with no one meaning what they say and very few knowing what they mean. Clearly, there are two strands of disparate opinion which have emerged among the ‘faithful.’ The first urges the conditional acceptance of the Ministry of Justice’s constitutional amendment, one hesitates to give this a number in good conscience.
This looks at resuscitating the yahapalanaya’ inspired 19th Amendment with some devious twists. It disregards even the minimum balance of the 19th Amendment with the President being enabled to hold ministerial portfolios.
This is even as President Gotabhaya Rajapaksa returns to public prominence as he recovers from the unsettling fury of the youth’s ‘Aragalaya’ (struggle) and consolidates himself. Increasing number of state institutions are brought under his control while he lectures secretaries of ministries on productively using state land to grow crops to prevent a food crisis.
This is rich in manifold respects. The very reason why Sri Lankans are facing the spectre of starvation is due to intemperate Presidential policy making, not only in forcing a ridiculous overnight ban on commercial fertiliser but also refusing to reverse that policy.
Constitutional ‘concessions’ that do not yield power
Desperate farmers begged for relief. Instead, they were told that the Army would be used to ‘compel’ them to farm. But let us put that aside for the time being. The Government’s constitutional reform proposals are being touted by a Minister of Justice, the same worthy who, during the ‘yahapalanaya’ period, boasted that he would never allow the incumbent President, (at the time, the former Defence Secretary), to be arrested. The magnanimity given to the President in the holding of ministerial portfolios has been strongly objected to by the Opposition.
We await with bated breath, the next act in this drama as well as the fate of the Bill proposed by the main Opposition Samagi Jana Balawegaya which went much farther in correcting the constitutional imbalance of power than the Government’s draft.
We may also beware of purported ‘concessions’ that never really concede power from the political establishment to the furious citizenry. Professional lobbies and advocacy groups have called for the composition of the Constitutional Council (CC) to be changed so that politicians or their nominees will not hold the balance of power. This was a major problem with the 19th Amendment. That is essential rectification, the 17th Amendment is a good example to follow.
But even granted all of this, there is deep and legitimate suspicion that these are patchwork attempts to deflect public anger, to turn the focus towards constitutional reform which has never actually impacted on the populace.
And so we come to the second strand of opinion which ridicules the very idea of a President and a Parliament that allowed the nation to come to bankruptcy, its citizens to be humiliated and beggared before the world, being tasked with constitutional reform. That ridicule emphasizes that this undermines the ‘Aragalaya’s call for ‘system reforms’ and for ‘Gota to Go.’
Was Sri Lanka ever a true Republic?
So, whence the Republic as its Fiftieth Anniversary arrives and departs without anyone the wiser? To answer that question, it must be recognised that the ‘Republic’ has never been a ‘Republic’ in the true meaning of that term. This is not only in the Rajapaksa age as some would like to believe.
Before the advent of the Rajapaksas, the ‘denial’ of the Republic was just better papered over by the gloss of ‘apparent’ conformity to the Rule of Law even when the same constitutional games were being played. The difference was that those games were far more sophisticated than the rough and tumble with crooks, charlatans and conners now.
I say this with force for there is a larger thrust to this argument. Even when the best judgments were being handed down by the Supreme Court (think, the mid to late eighties) upholding constitutional rights, from the right not to be arbitrarily arrested to freedoms of speech and expression, those were victories limited to constitutional theory scarcely percolating to the street. As public interest lawyers then, (not to be confused with the ugly commercialisation of public interest litigation later), it was thrilling to see constitutional rights advanced.
Even so, much depended on which President was in power at the time, even the (so-called) best legal brains thought strategy in that light. Little wonder then, that the ‘independence of the judiciary’ received short shrift as the apex court of the land and the Office of the Chief Justice became the target of unprecedented controversy during the Kumaratunga Presidency and after. So when the state of the Republic is reflected upon, awkward questions must be asked. How and why not only the Bar but also legal academia (largely) silent when the Bench embroiled itself in the thickets of political controversy?
Flawed amendments that ‘reinvent’ the constitutional wheel
Or when contempt of court was openly threatened against dissenters and when the judicial institution was taken in a determinedly political direction, was a Nelsonian eye turned? Those dagger thrusts were aimed at independent institutions while ‘many slept.’
In later decades, the very many ‘impeachments’ of Chief Justices and the loss of lustre of the judicial institution were all illustrative thereof. From that great sin comes all lesser sins including the crucifixion of Sri Lankan constitutionalism on the altar of political expediency, the monstrous growth of the Executive Presidency, the warping of the Offices of the Attorney General and the Inspector-General of Police (IGP).
The IGP has gone on record stating that he cannot control his own officers due to political appointments to key posts. That pathetic state cannot be simply rectified by ‘restoring’ an ‘independent’ National Police Commission or the ‘independent’ appointment of the IGP. Those inclined to argue the point may be encouraged to recall the ‘yahapalanaya’ example of an eminently unsuitable IGP who later went to jail over failures of command responsibility regarding the 2019 jihadist attacks on churches and hotels. All this is precisely why the 19th Amendment to the Constitution was doomed at the very point that it was born.
Needless to say, this will be the fate of yet another amendment which reinvents the wheel. The same Prime Minister in whose term, the 19th Amendment was birthed, has returned to that same seat to the hurrahs of some, issuing warnings of ‘worse times’ yet to come.
His warnings have little impact on the youth of the ‘Aragayala’ who celebrated their fifty days of struggle with a tad more colour than the Republic, protesting at a circus of constitutional amendments as hospitals run short of medicine with some instances reported where relatives of critically ill patients have assaulted doctors.
There are no saviours’ for Sri Lanka, let it be said plainly.