SRI LANKA’S STATE OF EXCEPTION IN CONSTITUTIONAL GOVERNANCE – KISHALI PINTO JAYAWARDENE

Image: To combat this, a critical mass of civil society must mount an apolitical challenge to the political establishment .

28/06/2020

Governance in Sri Lanka today is transitioning from a constitutional (albeit flawed) system of checks and balances to tugs of war between competing political power centres that are constrained not by the Constitution or statute but by the sheer praxis of force. In that unseemly struggle over which looms the spectre of a militarised command hierarchy, civil liberties of individuals will receive short shrift. We see that with powerful effect today.

Transition to a state of exceptionalism

This transition must be clearly acknowledged so that expectations as well as strategies thereto are tailored to its crude realities. This would apply across the board, including to conventional beliefs regarding the promise of impartial justice on constitutional principle. Lamentations therefore when the Bench fails to deliver are useless. Let me be clear. This is not to downgrade constitutional institutions or to minimise the high importance of voices of conscience who make themselves heard above the political din, the cowardice or the self serving interests of their colleagues.

One such example was the Fort Magistrate who, this week, prevented officers of the Criminal Investigation Department (CID) from showing photographs of an attorney, arrested under the country’s anti-terrorism law, to children before the lawyer was produced to the children in an identification parade. According to the CID, the suspect had been allegedly indoctrinating the children in jihadist ideology. That clear violation of the law was stayed and the identification parade was consequently cancelled.

But this singular example does not detract from the importance of the point sought to be made above, as much as an exception does not generally prove the rule, notwithstanding the conceptual fiction to the contrary. By and large, what we have now is a state of exception in governance and the sooner that we recognise this, the better. From Task Forces to engage in civil and policing functions to an Ombudsman presidentially appointed while a constitutional office exists and all this while a Parliament is in abeyance, illustrates that point with deadly clarity.

Honest reckoning of ‘yahapalanaya’ mistakes

Indeed, the Attorney General’s quite correct response a few days ago to the Commission of Inquiry probing incidents of political victimization, that it cannot interfere with cases that are being prosecuted or summon prosecutors is an excellent case in point. In fact, this is a dispute that should not have occurred at all. In all the long histories of more than two dozen Commissions of Inquiry in this country, such a tangle between the state law office and a fact finding commission would have been inconceivable. Yet, it is happening now. Why? This is the essential problem when it is not the law but political power centres that compete, if not collide.

And as Sri Lanka is crucified on the cross of military exceptionalism, it needs to be repeated that an honest reckoning of mistakes made during the ‘yahapalanaya’ experiment of 2015-2019 is still outstanding. This is not addressed by ex post facto criticism of the Sirisena-Wickremesinghe coalition, let that be understood. Much more was wrong with that period than the personal lack of leadership of two politicians and their acolytes in the House, however disgraceful these may have been. In other words, the fault was not only with them but also with us. This was manifested at multiple levels, mostly in the eagerness exhibited by many for personal and professional profit sought through political affiliations to a select cabal of the United National Party (UNP) while wearing the cap of ‘civil society.’

It was also exemplified in the sentiment that ‘yahapalanaya violations’ of the law will somehow be different from ‘Rajapaksa violations,’ which was the premise on which a fundamentally flawed 80 page + Counter-Terrorism Bill was peddled by the Wickremesinghe regime to replace the Prevention of Terrorism Act. This was aided, as we recall, by international agencies whose farcical idea of legal drafting was to wholesale import counter terrorism laws in their own countries. That Bill provided for increased scrutiny of the Human Rights Commission into arrests which was the only redeeming factor as compared against a plethora of other extremely bad clauses including bringing in those who violate ‘unity’ within the definition of terrorism.

Valid arrests and invalid state action

Some weeks ago I asked the question as to what would have been the fate of the Muslim attorney arrested on alleged ‘terrorist’ links if that Bill had become law? The answer to that question is self evident. Indeed, its enactment, after months of secretive drafting, was only prevented at the eleventh hour when it was leaked to this newspaper, resulting in public uproar and furious backpedaling by the Government. Even after the 2019 Easter Sunday attacks, the former Premier could only bleat that this law had to be passed.

This was despite the miserable culpability of the warring coalition Government and the responsibility of former President Maithripala Sirisena which he heinously refuses to admit, being the primary reason for the poisonous blossoming of islamist jihadism leading to attacks on churches and hotels. Equally culpable were purportedly ‘academic’ critiques framed around the ‘radicalism of Muslims’ being the inevitable result of Rajapaksa-led Sinhala-Buddhist militarisation without acknowledging that militaristic ‘Wahabi-ism’ of Mawanella and Kattankudy in particular originated in another, distinctly deadly source.

However that critique is quite different from the manner in which the law is operated against individuals. If, as the state law officer had apparently argued before court this week, the Muslim attorney who had been arrested was an ‘islamist theoretician,’ then this must be objectively established on credible grounds at the time of arrest. It cannot be proved through the bullying of children by the CID after the event as even the village idiot would affirm. This legal distinction marks a valid arrest from invalid state action, which question is now before the courts for scrutiny.

The difference in law between civility and barbarism

That principle had been strongly upheld in the past by Supreme Court judges who had the intellectual capacity and a smidgen of belief in their constitutional role. In fact, as was once remarked, this caution is what stands between a civilised society and a state of barbarism. But this is fast becoming a distinction without a difference as feverish political manipulation of high profile atrocities are propelled by the approaching elections. The dreadful taint of public disenchantment with the very term ‘governance’ (‘yahapalanaya’) has sapped reasonable public discourse. Locke’s idea of the social contract between the State and the citizen will yield to a compact between villainous politicians which remains unaffected by electoral changes.

To combat this, a critical mass of civil society must mount an apolitical challenge to the political establishment and not be cajoled into one political corner or the other. Professional associations must speak up. In this regard, the silence of the Bar Association of Sri Lanka is shameful given that former greats of the profession stood up to the State even in the most chilling of times. If that silence persists on the part of citizens, we are fated to repeat the mistakes of history which, like Kuveni’s fabled if not apocryphal curses, seem determined to perpetually afflict this nation.

And our painful recovery from an exceptional state of extra-constitutional being which this country is slipping into with extraordinary speed, will become impossible.
Sunday Times