Reflecting on 'imperfect' democracies and the constitutional process

By Kishali Pinto Jayawardena

To be sure, the very language of democracy means the language of imperfection. By its very definition, a democracy cannot be perfect, with perfect laws and a perfectly operating system. On the contrary, the give and take of different opinions in the classic 'marketplace" of ideas and the tug and pull of ideologies, indisputably and even cacophonously different but yet living in some measure of amicable co-existence, is the very essential connotation of a democracy.

In the old theories, the notion of just rule with its checks and balances was the crucial lever by which a society was fairly governed. And as much as the pendulum swung in a particular way at a particular time, history taught us that it will swing back again when the time was appropriate in any country where the people, though beset by political, social and economic problems, yet preserved their basic faith in the constitutional process.

Insofar as Sri Lanka is concerned, the centralization of powers in the Executive Presidency had been the mainstay for the deterioration of the democratic process. The overtaking of the normal legal process by emergency rule, the extreme violence generated by conflict both in the South as well as in the North and the subversion of the independence of the judiciary from 1999 onwards, was devastating in their cumulative impact. Ironically, it was the (relatively) junior members of the Bar who protested vociferously albeit vainly, against the politicization of the judiciary. Senior lawyers as well as the so called legal intelligentsia in the country, with very few exceptions, remained mum. The continued silence of academia in regard to matters that seriously affect the very teaching of constitutional and human rights law is deplorable in that same context.

The subverting of this country's constitutional process then gained momentum in 2006 when the 17th Amendment to the Constitution was contemptuously tossed into the gutter by the Rajapaksa Presidency. Like in many other instances however, the blame for this sorry state of affairs does not lie with the government alone. The United National Party (UNP) did not evidence any great enthusiasm for this constitutional amendment, as indicated most particularly by the opposition leader delaying for several months during 2005 to make his required five nominations (jointly with the Prime Minister) to the Constitutional Council (CC) and thereafter, by the UNP failing to politically agitate on the non-constitution of the CC.

The 17th Amendment, after all, is a significant fetter on the powers of the Executive Presidency, whether a Kumaratunge, Rajapaksa or a Wickremesinghe is the incumbent of that powerful chair. It requires genuine statesmanship to move in the matter, a quality that appears to be conspicuously absent from the current crop of politicians. And as predicted, the Select Committee of Parliament that was appointed by the government as a sop to offset bitter criticism of the disregarding of the 17th Amendment has become an eye wash. A news report last week, disclosed the fact that the PSC is hardly able to summon its own quorum. Even more ironically, we still have government sponsored exercises to 'improve' the constitutional rights chapter, despite the fact that fundamental rights litigation (even in terms of basic life and liberty rights) is at its bare minimum and the Constitution itself has now become a rather vulgar joke.

Disturbing similarities with such 'eyewash' exercises also arise in regard to the Presidential Commission of Inquiry into extra judicial killings, disappearances and the like, which is now confronting significant difficulties due to the absence of a conducive environment for its proper working. This warning too, was made at the start. It was pointed out that the law under which this body functions is far too inadequate to meet even the limited purpose of its mandate. Rather than a weak fact finding body, what is needed is a permanent and independent investigative/prosecutorial body that has extensive powers, including the authority to move court if that be necessary. Allied to that is a full scale witness protection program that can inspire the trust of those who have justifiably little or no faith in conventional law and order agencies. This must be established before any commission process can commence. In the alternative, as is seen now, very few persons will be willing to participate in the process.

When public faith in the constitutional process is sought to be systematically destroyed by a prevalent political order, this should invoke immediate collective resistance. In its absence, the gung ho of war drums means only very little but death, destruction and misery. Sri Lanka currently, exemplifies this stark truth.