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There is a view taken by some who are engaged in the process of constitutional reform that a new or radically revised constitutional document for Sri Lanka will be the proverbial panacea for many if not all the country’s ills.
This is however dangerously misleading. The question is simple. If provisions of the existing Constitution, (including amendments with their warts and all) are not adhered to properly, what possible faith can citizens have in a new document, the beautiful gloss of which will be limited to the paper that it is printed on?

Government doing itself a disservice
This question becomes relevant in light of practice by the Sirisena-Wickremesinghe coalition government which directly contradicts its good governance rhetoric. As pointed out in these column spaces on many occasions, the standard at which observance of the Rule of Law ought to be measured is most emphatically not by comparison to the Rajapaksa years.
This is because, during the latter term of the Rajapaksa Presidency in particular, there was literally no standard to be measured against. Instead of the Rule of Law, the Rule of Political Patronage was in operation. So when this President and this Prime Minister pat themselves on the backs for being a tad better than their predecessor, this is no achievement to boast of.

And in that context, the Government does itself a great disservice when it fails to adhere to the Constitution. This is apparent at many levels. At the highest point, this question has arisen again in view of the pending appointment of the next Inspector General of Police. As in the case of the fracas over the appointment of the Attorney General, the nation is bemused over whether it is the President who chooses the potential appointee to the positions of Chief Justice, Attorney General, Inspector General of Police and a host of other key offices or whether it is the Constitutional Council (CC)?

Sauce for the goose but not for the gander
Where the Attorney General was concerned, a ludicrous situation arose when the CC refused to consider the three names sent by the President and referred the matter back to the President to send one name to the CC for consideration, to approve or refuse. Where the pending appointment of the Inspector General of Police is concerned, we are informed through media reports that the President has again sent three names to the CC. This time around, the CC has affirmed that it will interview the three officers recommended presumably with a view to making a choice. Why was this process not formally followed in the case of the appointment of the Attorney General? What is sauce for the goose certainly does not appear to be sauce for the gander, to take some liberties with that colloquialism, as one may be permitted to.

Whatever this may be, processes of appointment need to be transparent and accountable. It must resemble a solemn constitutional process rather than an unruly football game. As the Supreme Court pronounced in an authoritative cursus curiae from the early nineteen eighties onwards, accountability needs to be evidenced during the process.
This minimum rule applies to the Constitutional Council as well. Rules regulating its procedure need to be laid before the Parliament and approved. The constitutional requirements thereto have to be adhered to as a matter of urgent imperative. It is farcical that this body has been operating in this haphazard manner for well over half a year.

Why is the law not utilized?
Other examples abound where clear non-conformity with the Constitution is evidenced. Take the issue of religious freedom for instance. Does the existing Constitution permit attacks on places of worship of Sri Lanka’s religious minorities? No, it does not. The question then arises as to why and how these attacks continue to be carried out even after the change of regime in 2015.
The question is not the scale of the incidents which is widely acknowledged to have lessened to some extent after the Sirisena Presidency assumed office. The question rather is as to why the law is not utilized against those who attack places of worship. Without the Rule of Law being enforced, the issue of severity of attacks depends on the political variability of a particular administration which is certainly not a happy point of reliance.

It may be conceded that prophets of the new evangelical traditions have often distasteful ways of acting including engaging in monetarily induced conversions which gravely offend not only Buddhists but also Hindus, Muslims and adherents of the Roman Catholic, Anglican and Methodist churches in Sri Lanka. Yet the solution thereof is not attacks by sabre rattling monks or enraged villagers. Instead, there must a methodical evaluation of the legality of these institutions and action must be taken by and under the law.

Public officers themselves acting illegally
Currently, steps taken by the police and Divisional Secretaries do not conform to the law or to the Constitution. For instance, private religious gatherings have been stopped by public officers on the basis that permission must be obtained when more than ten persons are gathered for worship. In other instances, renovations of personal residences of priests have been resisted. Police complaints filed are not proceeded with.

Governmental circulars also add to the confusion. A 2008 circular decreed that future construction of any place of worship was subject to prior permission of the Buddha Sasana Ministry and with approval of the Divisional Secretary. Later, another circular, since then revoked, stated that this applies also to existing places of worship which were deemed illegal ‘unless approved by the Ministry.

Despite the important position afforded to Buddhism in the constitutional scheme through Article 9, Article 10 and Article 14 (e) on the freedom of thought and religion and to manifest and practice one’s religion demonstrate a constitutional commitment to religious tolerance. But of what use is an effort to fine tune these provisions when even the existing provisions regarding religious tolerance are not observed?
These are apt reflections in the Avurudu days.