Thursday, 18 September 2014 00:00
“Disorder was the order of the age, ideas a precious food; with humour always dressed in tears, crunching a red apple. Disorder flashed vivid as a fire in a far-off village, a wan wind blew in the crumbling castle” – Takashi Tsujii (Age of Disorder – New writing in Japan)
It is emblematic of today’s Sri Lanka that we are left uncertain and confused even as to whether the incumbent President is entitled to contest for the post a third time. Not that Sri Lankans are strangers to constitutional quibbling, uncertainty or confusion. In fact the whole scheme of affairs in this country seems to be designed to keep the people guessing as to what is in store for them each day and every step of the way.
But what is particularly bizarre about this situation is that the whole country is aware, cloaked by constitutional jargon as it maybe, that this particular amendment was moved to enable one man and one man alone to be eligible, even after serving two terms as President.
It is now argued by none other than the former Chief Justice Sarath Silva himself, that the 18th Amendment to the Constitution cannot be used by the incumbent President Mahinda Rajapaksa to throw his hat in the ring again. So sure is he of his position that the former Chief Justice says quite portentously that he will argue the matter personally in the Supreme Court. We cannot say how the courts will react to his arguments. One of the assumptions on which our edifice of justice rests is that a court of law will not be unduly influenced or overawed by the personality of the advocate or that of the parties.
A restraint on abuse
In 2010, when the 18th Amendment went before the Supreme Court, it did not think that the opinion of the people ought to be sought by way of a referendum on a matter which notably altered the scheme of the Constitution and the franchise.
Arguably, the two term limit on the incumbency was a restraint on the possibility of the continuous abuse of the process. The wisdom of such a limit, particularly in an underdeveloped democracy, is underlined by the events unfolding in countries such as Egypt and Syria. In these countries the incumbent had no difficulties in obtaining electoral endorsements repeatedly.
The “grateful” peoples of Egypt and Syria were seemingly even willing to accept the spoiled sons of leaders like Hosni Mubarak and Al-Assad as their rightful leaders. It is perhaps a pointer to the abject quality of its institutions that an Egyptian court recently moved to sentence to death more than 500 of the ousted President Morsi’s supporters. Obviously elections alone cannot make a democracy, leave alone a decent society.
Even at the presidential elections of 2010, held just prior to moving of the 18th Amendment, the idea of such an amendment was not canvassed before the voter. Since the Government commanded a two-thirds majority in Parliament, upon the ruling of the Supreme Court, the outcome became inevitable.
The Supreme Court does not seem to have given its mind to the reality of the two-third majority prevailing in Parliament. It is no secret that a very large number of those who constitute the two-thirds today are in fact from the Opposition, having been elected on quite a different mandate.
As per the Constitution as well as the elective principle, they have no business to be voting for policies that their voters have not endorsed. This very fundamental constitutional/elective concept now seems to have become a dead letter.
A true constitution
It is for future historians and jurists to determine the extent to which the concept of the division of power prevailed in this era. A true constitution is not a thin volume printed by the Government Printer. It is a living idea in the hearts and minds of the people.
Chapter 1 of the 1978 Constitution suggests the division of the people’s sovereignty in the three arms of the State. As the interpreters of the Constitution, the Judiciary, while interpreting it, has a paramount role in the protection and strengthening of the fundamental rights as well as the franchise of the people.
Many would have wondered whether a person, who for years was in the thick of shaping a particular judicial character, as we have come to experience in the last two decades, has suddenly done a turnabout.
Just a few days before he raised the issue of the 18th Amendment, the former Chief Justice had raised an apparent constitutional objection to the President’s grant of $ 1 million to the Palestine State.
Role of the Judiciary
Even though among jurists there are many opinions on the role of the Judiciary in a given society, few would differ on basics like intelligence, integrity and independence.
Since of late some have taken a revisionist view arguing that the role of the Judiciary is to assume that the government of the day is acting in the overall interest of the country and therefore to be supportive of their efforts whenever possible. An irresistible and perhaps flattering corollary being that any appointment made by the government, including judicial, is in the interest of the country!
Others however point out that the system works best when judges act as independent umpires and decide whether the government/or any other party is playing according to the rules. The latter approach enables any individual to challenge the actions or policies of the government if it is seen to be acting outside of accepted rules.
If we take the case of Egypt, it is clear that the courts have gone all out to destroy those who are in the way of the present Government. Any investor or even a visitor in that country ought to take into consideration his situation if he were to fall foul of a Government official. It may even go down to a Customs officer demanding a bribe. Obviously, the foreigner cannot turn to the courts for protection. But at least he has the choice of not going there. For those born in Egypt and cannot leave, it is indeed a tragic fate having to face such courts.
War and the Constitution
There is no denying the fact that the 1978 Constitution was soon followed by one of the saddest chapters of our modern history. In the 30-odd years since, we have witnessed deadly insurrections, soul-sickening race riots, bloody internal wars, rampant corruption and the general breakdown of social standards in the country.
Some may argue that whatever development we achieved in the period was due to the concentration of power enabled by the Constitution. There are many other countries in the region, Thailand and Malaysia being two examples, which developed much faster without such a Constitution.
Nor can it be argued that the winning of the war was due to constitutional provisions. On the contrary, the war dragged on for nearly 30 years under the same Constitution. Israel which has fought so many wars has no executive president.
Winning is key
One need not be a political analyst to observe the many disorders and injustices prevailing and ever-widening in this country. It is an observable fact that most elections conducted here have become carnivals of violence and abuses, raising a fundamental question of their validity.
But as things stand, as long as a person can win an election, nothing else matters. Once elected, he can then use public money to obtain a lifestyle for him and family which borders on the vulgar. Starting from the most expensive cars in the world, state-of-the-art communication equipment, richly-furnished houses to every other creature comfort, it all becomes his entitlement.
Those elected can ensure plum jobs for family and friends in public institutions with no selection criteria applicable whatsoever. The politician’s power has now been extended to private institutions such as banks, through pension funds used as weapons and not investments.
The elected can also use public institutions to conduct non-stop self-promoting propaganda in the Government-controlled media while stifling by every possible method an alternative media. The blatant blocking of websites has become standard practice. It seems that there is a belief that our right to information or even expression is a concession given by Government bureaucrats and may be withheld by them at will.
Culture of impunity
A culture of impunity is enjoyed by those in power. All institutions of law and order have been broken and subverted. We can now never come across a politician who has become poorer while serving the people! The reality is the very opposite!
Given the prevailing cultural outlook and personal attitudes of the average politician in the country, there is no reason to believe that a change of government would change this bleak scenario. It will only mean a new body in the sleek intimidating convoy.
In such a hopeless setting, arguments about the interpretation of one amendment to the Constitution, especially when the legislature with a two-thirds majority can easily remedy any defect, sounds like meaningless chatter, just talking cabbages and kings…
(The writer is an Attorney-at-Law and a freelance writer.)