Focus on Rights

Who is to blame for the deterioration of Sri Lanka's institutional democracy?
The steady eating-away at one's internal strength and the sapping of one's will to resist are classic psychological phenomena exhibited in concentration camp victims. When such phenomena are reflected in the collective psyche of an entire country, and particularly in the behaviour patterns of its professionals, its intellectuals, civil society, and the media, the time has come to be truly frightened.

This is the case now in Sri Lanka, which once boasted of a literate people and a proud legacy of democratic rule in Southasia. Now, this boast is no longer valid. President Rajapakse's bypassing of constitutional imperatives mandated by the 17th Amendment in his recent direct appointments to the National Police Commission and the Public Service Commission was only the long awaited icing to an already maggot ridden democratically putrid cake, pictorially nauseating as that metaphor may be.

Predictably, it appears that the Government is seeking to justify itself by invoking the doctrine of necessity. But this is a transparently obvious ruse to retrospectively defend a direct constitutional violation. In previous columns, it had been pointed out that a strong argument could be advanced as to why the Council, as it is, could have been constituted even without the member that remains to be appointed by the smaller parties.

On the face of the constitutional provisions, (see Article 41E(3)), the quorum to be satisfied for meetings of the Constitutional Council is six members. This is already satisfied if the President appoints the five nominations sent to him jointly by the Leader of the Opposition and the Prime Minister several weeks back. The primary enabling provision regarding the CC does state in Article 41A that the Council "shall" consist of the following members which includes the single member nominated by the smaller parties in Parliament not belonging to the part of either the Government or the Leader of the Opposition. Granted, that nomination has not been made as yet.

But given the constitutional violation occasioned by the Presidential direct appointments to the Commissions, would not the more imperative alternative have been to prefer an interpretation that allows the constitution of the Council even without this remaining member? Should the parties that have the duty to nominate that remaining member be allowed to frustrate the purpose of this constitutional amendment and hold the entire country to ransom with their intransigent and hypocritical refusal to come to a consensus on who should be nominated?

Further, Article 41A(5) of the Constitution stipulates that the President, upon receipt of a written communication of the five nominations made jointly by the Prime Minister and the Leader of the Opposition or of the one nomination by the smaller parties "shall forthwith" make the appointments. As said time and time again in this column previously, the disjunctive wording used in this provision could be reasonably argued to support the view that the President should make the appointments as soon as reasonably possible once the nominations are sent to him.

But President Rajapakse is yet to make his appointments of the five joint nominations of the Leader of the Opposition and the Prime Minister already sent to him quite a while back. The public are then entitled to question the democratic bona fides of President Rajapakse and further, to ask whether that whole exercise of writing to the Speaker previously to urge an immediate consensus of the nomination of the remaining member to the CC was not a mere dramatic prelude to the consequent act of appointing his favourites to the PSC and the NPC?

And again, while it is true that the Leader of the Opposition is much to be blamed for his own delay in agreeing with the Prime Minister on the constitutionally mandated five joint nominations, (as this column has also condemned in the most coruscating language possible previously), it is disgusting to see Government ministers trying to justify unconstitutional actions of the Presidency by pinning the blame on the Opposition.

What happened to the 17th Amendment in the month of April 2006 is not a sudden attack on the country's democratic process, its institutions and the Constitution. There is no doubt that the destructively insecure leadership by the Kumaranatunge presidency during her eleven years in office had a direct bearing on the deterioration of the country's democratic processes.

If Sri Lanka's opposition parties - particularly the UNP, had provided an honest counterpoint to its traditional political rival, the SLFP - such deterioration might have been prevented. Unfortunately, this was not to be. Kumaratunga's successor President Mahinda Rajapakse has now taken this attack on democratic institutions on to more precarious levels of severity as his current treatment of the 17th Amendment demonstrates.

But this has a particular logic to its inevitability given the passivity with which the traditional attack guards of democratic forces, including particularly civil society, the media, the professionals and the academics reacted to assaults on democratic institutions, particularly the judiciary in recent years. In the period immediately preceding Kumaratunga's ascent to office in 1994 on a surge of people's power, there is no doubt that civil society, in particular, intervened through statements, memorandums and protest notes when threats to the democratic process were evident during a distrusted UNP regime.

Indeed, from the late 1970's to the early 1990s, immediate interventions were evidenced and strong moral opinion was constituted therein which politicians were compelled to listen to as representing the voice of constitutional governance. In contrast, from 1994 until the end of Kumaratunga's presidency in 2005, civil society interventions were markedly less evident, besides being vested with a certain ambivalence.

As a case in point, apolitical interventions were markedly lacking when she launched her attack on one of Sri Lanka's most cherished democratic institutions, the judiciary in the late 1990's, with devastating consequences for the protection of the rule of law. The zenith of this attack is now witnessed very well indeed in the period of her successor in office. As a cumulative result, Sri Lanka has been catapulted into a dangerously fragmented constitutional reality. Certainly, its consequences are as yet incalculable. And historic responsibility for this state of collapse must rest where indeed it is due.

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