Columns

Undoubtedly there is a palpable sense of discomfort in the air.
Much like the curate’s egg

For close to a decade, the gross capture of state power, gathering of immeasurable wealth and discarding of civil liberties by the Rajapaksa Presidency and its acolytes put Sri Lanka under extraordinary strain. It was natural therefore, given the high octane promises of the Sirisena election campaign, that swift and surgical strikes in consonance with the Rule of Law were expected post-election against those responsible. We were promised nothing less after all.

Yet with time rapidly passing on the much vaunted 100-day reforms programme, the performance of this Government has been much like the curate’s egg, redeemably good in parts but less so in others.

There is a deeper meaning to the use of this particular idiom. Those of us who had been unrelentingly critical of the Rajapaksa administration find ourselves in a predicament somewhat similar to that of the unfortunate curate who, when his bishop commiserated with him on being given a bad egg at breakfast, responded hastily that parts of it were, in fact, excellent. The absurdity in this is self-evident.

Emphasising home truths
So certain home truths need to be acknowledged. First, the Rajapaksa Presidency needs to be put in its correct place as a democratic aberration of the worst kind. Brought about by a combination of unprecedented factors, (including the upsurge of ugly ethno-nationalism on ending of the Northern war) and underpinned by the personal and political greed of one family, it put Sri Lanka’s democratic systems in a disastrous tailspin.

The self-pitying laments of the former President, his son and his brothers that they are now being victimised needs to be dismissed with profound contempt. This former President has not undergone the humiliation and degradation that he meted out to onetime Presidential candidate Sarath Fonseka, to give one example.

Having acknowledged this in the spirit of the peoples’ victory of January 8th 2015, valid questions arise in regard to this Government’s good governance thrust. More than a month after the election, popular discontent is rising against the apparent safeguarding of drug dealers and rampant corruptors. The Cabinet’s backtracking on development projects such as Colombo’s Port City despite Prime Minister Wickremesinghe committing himself on record to stopping this, is part of the same discontent.

Dissonance between the Presidency and the Government
This week, President Sirisena let slip his regret that corruption investigations were not moving forward as they should, stating consequently that he intended appointing a Special Presidential Commission of Inquiry. This draconian law from the JR Jayawardene era has been historically critiqued by civil liberties advocates for permitting disregard of fair procedure and rules of evidence. Its invocation at this point of time merits a different discussion. For the moment though, it seems that these statements indicate not only a certain dissonance between the Sirisena Presidency and the (virtual) United National Party Cabinet but also a lack of understanding regarding the direction that the law needs to take.
Indeed, we see unpleasant and worrying paradoxes where observance of the Rule of Law is concerned at other levels. The President’s calling out of the armed forces to exercise police powers under the Public Security Ordinance (PSO) is another case in point. Heavily critiqued during the Rajapaksa tenure, this emphasises the continued militarization of law enforcement which the Sirisena campaign promised to redress.

Moreover, the Presidency’s shielding itself behind the very aspects of the Office which Maithripala Sirisena steadfastly campaigned against evokes concern. Foremost is the constitutional immunity attaching to Presidential acts. This was the protective bar that shielded the Sirisena Presidency’s order declaring (onetime Chief Justice 44) Mohan Peiris ‘as if he had never been.’

Setting a dangerous precedent
At the most simplistic level, it affronts the legal mind when an executive order is deemed to declare a particular act as ‘null and void.’ This is purely a judicial function, no more and no less. The Government’s citation of submissions of senior lawyers in support is no answer.

No doubt the manifest unsuitability of this onetime Chief Justice 44 to function as the head of the judiciary was assured. His degrading of that Office was unprecedented and his claims about maintaining the decorum of the judiciary need to be dismissed summarily. Nonetheless, deviation from the declared constitutional process of dismissal sets a dangerous precedent as pointed out editorially in this newspaper. This week, former Army Commander Sarath Fonseka, (who was himself treated as if ‘he had never been’ by the Rajapaksa Presidency), also asked that President Sirisena declare the loss of his parliamentary seat as ‘null and void’ in that same way.

Further, the acceptance by some counsel in the activist lawyers’ movement of positions within the Government detracts from the appearance of objectivity that is essential if credibility is to be preserved. Sri Lanka is not alone in the region in regard to the dilemmas that arise thereby. In Islamabad last week, this columnist became acutely aware of the moral and institutional collapse of the Pakistan lawyers movement which toppled former President Pervez Musharraf and brought an evicted Chief Justice back into office amidst jubilation. This energy has now dissipated with cynicism occupying the public mind. These are good lessons that we can learn from.

Systemic accountability needed
As repeatedly pointed out in these column spaces, our governance failures are systemic and structural. At its most basic, the 18th Amendment to the Constitution was approved not only by Chief Justice 43 Shirani Bandanaranayake but also by sitting Chief Justice K. Sripavan. Certain appellate court judges were named as bribe-takers by civil society figures including Venerable Madulwawe Sobitha in the run-up to the elections. What has happened to all this? Have we suffered convenient amnesia? Equally, the problem of effective law enforcement cannot be met by bringing back the death penalty contra the Justice Minister’s alarmingly sprightly claim recently. More enlightened responses are needed to these questions of systemic accountability.

These are emergent Rule of Law paradoxes that the Sirisena Presidency and his Ministers would do well to address forthwith.