‘Democracy Still Born; Lanka’s rejection of Equal Rights at Independence’ by Rajan and Kirupaimalar Hoole offers a reflective introspection on the long road by which a promising nation-state became a bankrupt beggar of South Asia.


By

Kishali Pinto-Jayawardene

When Rajan Hoole requested a review for the book, ‘Democracy Still Born; Lanka’s rejection of Equal Rights at Independence’ (Rajan Hoole and Kirupaimalar Hoole, Perera-Hussein Publishing, 2022) in characteristically succinct style a few months ago, I demurred on seeing the weighty tome (730pp).

The twisted creature of the Sri Lankan State

‘How can justice be done to such an exercise?’ This was the first and foremost question put to him with force. But an unspoken and perchance more complex dilemma lurked therein. Put bluntly, engaging with the past is exhausting when the every-day moment is filled with the helpless trauma of witnessing a country inexorably fold in onto itself in despair as financial collapse, massive social unrest and civil breakdown form a perfect trifecta of concomitant evils.

Indeed, it is extraordinarily demoralising to rationalise what citizenship has been reduced to, in the first instance. That said, this was not a request that could be declined easily. And so, even as pressing concerns of the every-day took over, ‘Democracy Still Born’ was always at the corner of my mind, awaiting a suitably philosophical time to ruminate over labours of unmistakably (if not, love) much reasoned effort to ‘understand history’ as the authors put it.

Now, an attempt is made at long last, to read through, absorb and cull relevant thoughts from the book. This is albeit with the caveat that such reflections are in no way meant to be an exhaustive account.

Limited column spaces would render that impossible. Rather, this is more a selective extraction of what resonates personally, namely the intertwining of the law and the performance of the judiciary vis a vis the strange morphing of the Sri Lankan State.

Stage for Lanka’s destruction set long before

Hence, the initial struggle over the title of the Hooles’ tome. Was ‘democracy’ in fact, stillborn or, was it a case of cold blooded murder? Did not the ‘murderers’ belong to a collusively elite political establishment trumpeting disparate agendas but united by a thirst for power, long before the Rajapaksas of Medamulana stamped their crude mark of the maroon ‘satakaya’ (shawl) on the State?

Each of those (historical) players, Sinhala or Tamil, were educated, often highly so in the privileged institutions of the West and urbane without exception. Seductively draped in the garb of ‘speaking for my people,’ did each not prioritize power over the national interest?

‘Democracy Still Born’ approaches these questions by dissecting Sri Lanka’s labour struggles spearheaded by Ponnambalam Arunachalam, roundly rejecting the notion that Arunachalam ‘espoused or cooperated with Tamil exclusivism.’

Rather, the authors argue that his ouster in 1921 from the Ceylon National Congress had deleterious results. This led to the country’s politics becoming ‘dominated by estate capitalism…which resulted in an anti-labour stance blended with communalism.’

Marked with important discussions on interalia, the Citizenship Act and other grim departures from the standard of equitable rights, their critique is that the legal battles thereto left the Sri Lankan judiciary ‘deeply compromised.

A series of legislatively ‘cruel jokes’

So too, the seminal Bracegidle case where the Court’s vigorous affirming of the right to habeas corpus was deliberately undermined by the 1947 Public Security Ordinance (PSO).

The PSO’s subversive twin in the form of a Prevention of Terrorism Act (PTA) brought in the seventies, continues to agitate the Sri Lankan polity today. The PTA’s historic thrust against minorities has now turned to a focus on young Sinhalese protestors, arrested and detained sans proper judicial scrutiny.

And so, we have the endless cycle of history repeating itself, another being the ‘cruel joke of the ICCPR Act’ as ‘Democracy StillBorn’ terms it. In 2007, Sri Lanka’s Government thought it fit to enact a law perverting the International Covenant on Civil and Political Rights (ICCPR) a foremost instrument of human rights protections in the world. The so-called ICCPR Act (a travesty of a statutory title if there ever was one) was meant to ‘negate’ a puzzling decision of a Divisional Bench of the Sri Lanka Supreme Court in the Singarasa case (2006).

The Bench had ruled that the State’s accession to the ICCPR’s First Optional Protocol allowing Lankans to present complaints on Covenant violations to a committee of international experts sitting under the Covenant’s authority, was ‘unconstitutional.’

This was on the basis that ‘judicial power’ was being exercised by the (internationally based) committee despite its recommendations having no binding force within Sri Lanka.

ICCPR Act used to lock up dissenters

To meet (justifiable) global consternation in the wake of that ruling, the so-called ICCPR Act was conjured, much like the proverbial rabbit, out of the State’s hat. However the Act omitted certain core ICCPR rights, including most importantly the right to life. That had been recognised to a limited extent by the Court in a few inspired decisions in the 1990s as arising from Article 13(4)’s injunction that a person can be put to death only on court order.

Even so, this was a far cry from having the right expressly secured by law. One and a half decades later, one still cannot understand the antipathy of the Sri Lankan State towards the (legal) right to life. This was quite in contrast to, for example, India’s Independence Constitution which freely bestowed the right to life on its citizens. Did India’s democracy suffer? No.

Equally to the point, did the Government think that merely clumsily styling a law as ‘the ICCPR Act,’ all would be well?

Ironically, after a decade of being largely inactive, the ‘ICCPR Act’ was then used to lock up Lankans exercising their right to freedom of expression. Yet, one must not be surprised. Such clumsy ‘jokes’ are/were a feature of our ‘misgovernance process.’ The latest example is another ‘truth and reconciliation commission’ when existing bodies such as the Office of Missing Persons (OMP) have abysmally failed in their mandates.

But to return to the book, the authors have chosen to formulate their premise that Sri Lanka rejected ‘equal rights’ at independence in the form of a question.

I would have looked at that more as an unequivocal statement, reading ‘equal rights’ in the sense of the right to equality of all citizens before the law/non discrimination against citizens on the grounds of interalia, race, religion, language.

Here too, we had to stutter and stammer before the 1978 Constitution formally included that right as justiciable (again in contrast to India). Very much the lynchpin of the constitutional rights chapter, the working of the equality right was moreover lukewarm regarding minority rights.

‘The revolution of the mind’

On the whole, a recurring theme of ‘Democracy StillBorn’ is that the ‘judiciary caved into the political excesses of majoritarian rule.’ A powerful affirmation is that by utter disregard for the right of habeas corpus, we have been left with a Kafkaesque legal system where guilt, rather than innocence is presumed.

Its insights offer tantalizing glimpses as to how Lanka’s present and future may have been different. This is so had the country boasted leaders of conscience, judges of conviction and citizens with passion that transcended their communities.

The book offers the ‘long view,’ a reflective introspection on the long road by which a promising nation-state became a bankrupt beggar of South Asia. It does so, shorn of frills, by relating the collapse of the Rule of Law to events that go beyond a particular political period.

The authors’ say that faith must be put even in a ‘mangled form of Separation of Powers and of new life in a Judiciary with the courage to declare bad laws unconstitutional.’ Certainly, ‘hope springs eternal in the human breast’ (‘dum spiro spero’).

If at all, the quarrel will be with their premise that the ‘country is tired of revolutions.’ That cannot be the case.
The ‘revolution of the mind’ still beckons in this troubled isle, very much the most powerful revolution of all.

Courtesy:Sunday Times