Columns

As we ready ourselves for a package of reforms in yet another stage of our profoundly unhappy history of constitution-making, particular cautions appear to be timely.

Cynicism in regard to constitutional changes
Sri Lankans are generally cynical regarding matters of the Constitution. The reason for this is simple. Unlike across the Palk Straits for example where the Indian Constitution was conceived of by visionary thinkers who had the interests of their teeming multitudes at heart, at no point did Sri Lanka’s Constitution, (in its various displeasingly political avatars), actually work for the benefit of the people.

On the contrary, strengthening a Leviathan State has invariably been rigorously planned and meticulously executed by our constitution-makers. Attempts to pull back state power, on the other hand, have always been timorous, giving little in actual fact but appearing to give much.

Even during rare moments, solid progressive strides such as the 17th Amendment to the Constitution were defeated not through some piffling problem with its substance but as a result of a diabolical meeting of corrupt political minds. Then as now, much euphoria preceded the enactment of that constitutional amendment. Its ultimate negation was purely to the reluctance of politicians to give up their powers. Given the distasteful tug and pull of political power play that we see even after January 2015, can we honestly say that our political culture has changed in that regard? That much must be explicitly questioned.

Need for the Presidency to live up to its mandate
So, regardless of whatever constitutional convulsions taking place in Parliament, the hearts and minds of those who voted in the South and in the North for change in this country must be won elsewhere than in the dry arena of legal theory. The Sirisena Presidency must engage in firm handling of the reins of State to address the growing unease among the citizenry and the lessening of that euphoric post election optimism.

To be clear, this assessment is informed and compelled by the very nature of the vote for this President. This was no ordinary displacing of one Government and replacing it with another. Rather, for the first time in years, the inveterate skepticism of Sri Lankans regarding their politicians was transformed to heady expectations that after suffering such ravage under a decade of Rajapaksa-rule, things might be different. These expectations have not been defeated but they are certainly becoming progressively muted. 

So while it is refreshing to see the President embodying a vastly different persona to his predecessor in the simplicity of his Office, a distinct responsibility rests on him to justify the people’s mandate. Where the North is concerned, an isolated visit to the Northern electorates will not accomplish this end. As a necessary first step and under Presidential direction to the Government if needs be, a thorough review must be undertaken of all detainees languishing in indefinite detention under the Prevention of Terrorism Act (PTA). The legal question is very clear. PTA detainees must either be charged or released. This is due process of law in its most basic form. It is unpardonable that this state of terrible limbo regarding PTA detainees should continue. 

Why the reluctance to displace immunity wholesale? 

Where the South is concerned, pushing constitutional reforms through in Parliament must be taken with that proverbial pinch of salt. These are antics that we have seen before. The important element here as to how these reforms will be practically implemented. As much as there is many a slip between the cup and the lip, there is a good distance between the worth of a law in theory and its actual implementation.

From the drafts of the proposed 19th Amendment being circulated informally, it appears that the current provisions relating to the immunity of the President have been revised only to the limited extent of being open to challenges on fundamental rights violations during office in terms of Article 126 of the Constitution. If so, the reluctance to strip away immunity intoto is bewildering. Why has this same relaxation of immunity not been extended to the filing of writs under Article 140 of the Constitution, given also the close link that exists between the two jurisdictions as judicially affirmed?

Certainly this fond holding on to superior status can bedevil the best of us. For instance, it was a matter for immense wonder that members of the first Constitutional Council established under the 17th Amendment, including generally well regarded jurists, deliberated with much seriousness at one point on the need to have legal immunity for their decisions. When this thinking was challenged in public in these column spaces and elsewhere, the Council’s jurists beat a hasty retreat. But the question remains as to why immunity is upheld in any manner whatsoever when the very basis of the Rule of Law is that all are amenable to the law?

The proposed 19th Amendment needs to be dissected in detail elsewhere. Suffice it to be said for now that its proposals must be taken in an informed spirit of caution rather than wild jubilation, similar to what should be our preferred response to that other (in) famous executive order declaring a Sri Lankan Chief Justice as if ‘he had never been.’

Avoiding electoral punishment in time to come
All this is also not to make any comparison between what we had now and what we had earlier. Such comparisons are nonsensical. What this country underwent under the Rajapaksa Presidency was abuse of power in the ugliest and most monstrous sense of the word. It is ridiculous indeed to engage in these comparisons for we fall into the heresy of expecting less from those currently in power on the spurious explanation that ‘well, anyway, they are better than what existed before.’

Let it be firmly said that it was not on this dangerously lopsided measuring scale that Sri Lanka tilted towards the dark horse challenger in the Presidential elections. And on its own part, this Government and this Presidency also must not measure themselves on this basis.
This mistake can only invariably translate itself to electoral punishment in time to come.