Editorial

Events in Pakistan earlier this week coincided with the first anniversary of the events that reverberated throughout Sri Lanka bringing out an eerie resemblance; a grim reminder of how close countries can get to a state of anarchy.

Not that Sri Lankan democracy has been a bed of roses, but Pakistan has been a long-suffering victim of military rule and political rivalries that have taken violent twists and turns. This week, when armed paramilitary forces smashed through a court of law and took former Prime Minister Imran Khan into custody, it shook even the hardened Sri Lankan polity.

Last year’s mass uprising in Sri Lanka that ousted a sitting President through ‘People Power’ had its dangerous moments. The Sri Lanka State was on the brink of collapse. The Human Rights Commission (SLHRC) on Friday released a report on how the State acted in quashing that uprising which was spiralling out of control from a “Go Home” call to the President to a “System Change” demand, whatever that meant. The HRC says the Police tasked with upholding the Rule of Law were “unsure” at what point to intervene and restrict civilian protests.

The sometimes excessive use of state power to retain the status quo – only when the agitators confronted the armed forces, drew the ire of human rights defenders backed by Western embassies in Colombo. The debate is an eternal one; where can the line be drawn between the State that must ensure law and public order and those who demand unfettered individual liberties, and freedom of expression, and what are the limits both sides have without stepping on each other’s toes?

These are not issues limited to Pakistan or Sri Lanka, but a perennial problem multi-party democracies are grappling with, more so nowadays. These are not headaches for military dictatorships and countries with a one-party rule where individual liberties are disregarded and the right to protest is met with a heavy hand of suppression.

There is an ongoing high-level investigation in the United States into the storming of its parliament (Capitol Hill) by a group that protested against the results of a presidential election. France has been bedevilled by protests for months over pension reforms and other issues, and the British Parliament fast-tracked the Public Order Act in time for last week’s coronation of King Charles III giving powers to the Police to proactively head-off disruptions by stopping and searching protestors if they suspect they are setting out to cause chaos by blocking roads, railways, airports, buildings, endangering national events, major sports and cultural events. All such offences carry 12 months behind bars and unlimited fines.

As the dividing line between protests and the State stamping its authority keeps getting blurred, with aggression on both sides rising in tempo, the balance of power dynamic appears to be shifting more towards the State’s authority and responsibility. That seems to be the trend now in the democratic world.

This week’s report by the SLHRC invites stakeholder opinions that offer guidelines to the Police, but then, what about protestors? During physical confrontations between state security agencies and non-state actors, how these guidelines survive the test in the heat of the moment, is anybody’s guess. Troops fighting the northern terrorists not so long ago were also supposed to hold their rifles in one hand and the Geneva Convention in the other.

Badly drafted Bills

Judging by the number of Bills that are being returned by the Supreme Court pointing to one constitutional deficiency or another, one is hard-pressed to locate the source of the problem. Are these drafts being handled by trigger-happy ministers who do not send them to the Legal Draftsman’s Department or to the Attorney General for proper legal scrutiny in advance – or is the ball being dropped by one or the other of these two Departments? Or both?

Wherever the fault may be, it has become embarrassingly routine for the Speaker to read out that a Bill has been stopped in its tracks by the Court due to grave constitutional flaws. This speaks to the confusion in key agencies tasked with subjecting Bills to legal scrutiny before they come to the House. What happens instead is a mad scramble after a Bill is judicially assessed as not passing the constitutionality test when ministers, responsible officials and state lawyers rush around trying to purify the draft.

Take the so-called Central Bank Bill as an example. The Court has determined that the Bill needs a long list of amendments, 45 in all, to be constitutional. In fact, it has gone so far as to say it ‘does not set out a criterion to resolve a possible deadlock situation between the Central Bank and the minister… and is arbitrary and capricious.’ Elsewhere, the Court has observed that the Bill is silent on monetary policy of an anticipated economic disturbance where situations warrant the intervention of the Government and lays the blame fairly and squarely on the drafters.

These are serious omissions. The Parliamentary debate on the Bill has been postponed. The Government has proposed that the Bill be discussed further at the Parliamentary business committee meeting.

And so we ask again, did not this Bill pass the eagle eyes of state agencies with expertise to spot the shortcomings? Is there a dearth of such experts? Or are they being bypassed? Is the Supreme Court called upon to perfect the drafting process in each of these instances? This has become an unwelcome and absurd pattern. The Minister of Justice recently withdrew the controversial Anti-Terrorism Bill from the House after analysts and lawyers pointed to significant contradictions and lacunae.

Pet bills of the Government, including the Port City Commission Bill, have been found wanting resulting in the Attorney General moving the Court to assure a host of amendments at the committee stage. Does the state law office not exercise a mind of its own in regard to these matters or do its officers just rubber stamp ‘bad bills’? Did not the Ministry of Justice have teams in place to examine the reform of Sri Lanka’s laws as a much-hyped publicity exercise?

Where is the accountability for this waste of time and effort? Where does responsibility for these badly drafted laws lie?