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This ecstatic rolling about in the Diyawanna mud to celebrate the passing of the 22nd Amendment to the Constitution defeats logic if not common sense.

No cheers, vigilance needed

Constitutional yo-yo games of the 17th, 18th, 19th, 20th and now 22nd Amendments demonstrate how stupendously unfit the members of Sri Lanka’s Parliament are to hold their seats. Each of these amendments were diametrically opposite to its predecessor in its varying democratic or anti-democratic thrust. Yet they were approved by the same parliamentarians raising their hands in the House, in obedience to passing political winds. This is the pathetic state to which the Constitution, the supreme law of the land, has been reduced.

What is to say that, next year, we will not have a 23rd Amendment that will restore the 20th Amendment’s ferociously anti-democratic status quo? If at all, this Amendment should have given rise to solemn introspection on our own sins. The bankruptcy of the country and its ranking as a governance ‘basket case’ in South Asia and beyond, are due to monkeying around with the Constitution by greedy, venal and supremely ignorant political leaders.

Business leaders, professionals, academics and civil society’s collusion in ‘yahapalanaya’ or ‘viyath maga’ charades, played their own part. So, as far as the 22nd Amendment is concerned, there is nothing to be ecstatic about. Sobriety must attend its passing and vigilance must govern the aftermath. The working of the Amendment in practice must be monitored and critiqued. Will a diluted Constitutional Council stand as a safeguard to politicisation of constitutional commissions and important public offices? That is a key test.

Anti-corruption law reforms to fool the public?

But as if all this drama is not enough, we have the continuing circus of law reforms, from anti-corruption to prevention of terrorism and ‘rehabilitation.’ Anti-corruption has been the quicksand in which many a Minister if not a Government has struggled and drowned. Typically, the problem is not the absence of adequate laws but the abject failure of the law enforcement, the prosecutorial machinery and the judicial process. Those signal flaws persisted during the Sirisena-Wickremesinghe regime (2015-2019) despite all the excitement around ‘genuine change.’

As we may recall, one parliamentarian of the ruling party (later convicted for contempt) went around recording his conversations with judges on sensitive corruption cases. And a senior official of the Commission to Investigate Allegations of Bribery or Corruption was caught in the crosshairs of an unpleasant scandal involving conversations with corrupt Ministers and wheeler-dealers of ‘Avant-Garde’ fame. The point here is not the ‘doctoring’ of recorded phone conversations but as to why such conversations took place at all?

So we have seen it all, from glowing – and grossly failed – promises of the Kumaratunga and Wickremesinghe cum Sirisena regimes to supreme contempt for the law by the Rajapaksas. This is why a proposed anti-corruption law to replace the Bribery Act, the Commission to Investigate Allegations of Bribery or Corruption Act and the Declaration of Assets and Liabilities law, has awakened little interest. Seen as ‘useless’ exercises, Sri Lankans fret and fume in the wake of severe tax burdens, passed to the public in order  to ‘compensate’ the coffers depleted after politicians robbed the public purse.

An ‘unambiguously’ atrocious ‘Rehabilitation’ Bill

Indeed,  either the Sri Lankan State reinvents the legislative wheel in matters of anti-corruption and the like with zero actual impact or – and more disastrously – it proceeds to make bad laws. This week’s ruling by the Supreme Court on the Government’s proposed Rehabilitation Bill is an object lesson on the latter. The Attorney General (AG) was dealt a rap over the knuckles for contending that, if the provisions of a Bill are ‘unambiguous’, the Court cannot examine the arbitrary exercise of powers in implementation thereof.

Dismissing that contention, it was pointed out that, despite ‘unambiguity,’ if adequate safeguards are not provided for the exercise of powers, Article 12 (1) of the Constitution will be violated. ‘Vague provisions prevent persons from understanding the ambit of the law,’ the Court said. Thus, judicial authority to decide if there is ‘clarity and precision’ to enable a ‘reasonable person’ to understand what actions are ‘forbidden’ as well as for State officers to know ‘the ambit of their powers,’ was re-stated as a definitive proposition of law.

This is all the more important given that Sri Lanka does not have post- enactment review of Bills. In critical scrutiny thereto, this proposition laid out by the judges is not startlingly new. Vague clauses cannot, in any event, be reconciled with ‘unambiguity,’ whatever that may be. The profoundly bad impact of such clauses on citizens and state officers alike, are two sides of the same arbitrary coin. The law Office must refrain from parroting such absurd defences of the indefensible in the future.

‘Sabotage’ by the State? 

Certainly, this Bill is calamitous from start to finish. It takes a lot of stupidity to get even the preamble to a Bill wrong but this is the case here. That ‘unambiguously’ atrocious preamble refers to ‘regulating the rehabilitation of misguided combatants, individuals engaged in extreme or destructive acts of sabotage and those who have become drug dependant persons.’‘Misguided’ by whose definition, pray? And what exactly is meant by ‘extreme’ or ‘destructive’ acts of sabotage. The legal meaning of sabotage is clear. Where do the other hyperbolic ‘add-ons’ come in?

Clause 3 meanwhile, equally ludicrously, expands the remit of the Rehabilitation Bureau to include ‘members of violent extremist groups…’ Substantively, the Bench declined to accept the position of the AG that the Bill represented only ‘a framework law for future enactments to specify the categories of persons that will come within its ambit.’ On the contrary, it was observed that the Bill had (unconstitutionally) already identified the ‘groups of persons’ that it targets but with no defined criteria as to identification.

That raised the possibility that persons classified by the executive as belonging in these ‘groups’ may not be subjected to a judicial process, the Court warned. Further, the Court pronounced that it cannot evade its constitutional duty on the basis that a future law may fill in ‘all the blanks’ of the Bill. Again, this puerile argument of ‘maybe lacunae now, will be rectified in later laws’ is astounding. The judicial consensus was that, if at all, the reach of the Bill must be limited to defined categories of drug-dependent persons.

Who takes responsibility for the Bill?

Other aspects of this Determination must await analysis in a different space. Concerns that the administration and management of not only the governing council but also the entire Bureau could be entrusted to members of the armed forces by the President upon the request of the Minister, also reverberated with the Court. Lack of clarity as to the ‘status’ of these members of the armed forces within the Bureau, was a key factor. The ‘Rehabilitation’ Bill is now assigned, we must hope, to the gutter where it belongs.

But there are larger questions of legislative accountability that arise. Called upon to defend bad Bills emanating from the stupidities of politicians and military officials, the AG is placed in a sorry state, it must be conceded.  Even so, we must have no more of this nonsense. That such a clumsily evil document came to the actual Bill stage is a grave question. Is the President, the Prime Minister or the verbose Minister of Justice responsible? If not, who? This question must be answered to prevent a repeat of this fiasco.

In the meantime, the Government may well look to its own ‘rehabilitation’ rather than venture into ill-advised military adventurism to deal with those who legitimately  – and constitutionally – disagree with the State.