Monkeying around with the Constitution

Inexplicably and not without heavy irony, former President Maithripala Sirisena chose to dwell on crop devastation caused by monkeys in Sri Lanka when contributing to the opening debate on the Government’s Policy Statement as Parliament met this week, fresh after a sparkling polls victory by the Rajapaksa headed Sri Lanka Podujana Party (‘ pohottuwa’) alliance.

The dark comedy of our Parliament

Led by the alliance of which Sirisena is an unremarkable part, the House includes two parliamentarians on death row, several indicted for criminal misappropriation of public funds and yet others for assault. ‘Pohottuwa’ parliamentarians who threw chilli powder and chairs at the former Speaker Karu Jayasuriya in the unholy fracas during the unsuccessful grab for power in late 2018 are back and in leadership positions. A prime instigator who lobbied a chair at the former Speaker is a senior Minister and the Chief Government Whip.

This is an unmistakable message that party loyalty, despite rowdiness, intimidation and thuggery, will be rewarded in the new dispensation. Perhaps the country’s non- human primates may take umbrage at any comparisons to august parliamentarians elected through public will. Certainly the destruction caused by monkeys attacking crops is far less than the constitutional mayhem brought about by the human species.

But was there any symbolism at all in the former President holding forth on these imperatives during the policy debate? It is hard to say given other absurdities that we were privileged to witness.

Another Sirisena loyalist, narrowly surviving the electoral massacre of his colleagues in the recent polls and distinctly vexed at being deputized to handle the subject of batik, came nattily attired in something supposed to be batik but looking more like ink blots on a white shirt. Not content with that mystifying example of sartorial splendour, he then announced that a law will be passed ordering public officers to wear batik clothing to office one day of the week. No doubt this injunction to wrap themselves in exorbitantly priced batik will warm the cockles of the hearts of his intended targets. some of whom find it difficult to even feed their families.

What does ‘one country, one law’ mean?

But to more serious matters. In his inaugural address to Parliament on Thursday, the President promised, ‘one country, one law’ for the people of Sri Lanka. Now this statement can be taken in various ways. In its most positive meaning, this connotes the equality of the law, signifying that the hand of the law will be worked fairly and justly against all. Yet, with an attorney of Muslim ethnicity still imprisoned for months as his lawyers plead the absence of due process of the law and a criminal investigator legally lynched for his termerity to go against the Rajapaksas during the previous regime, it is most difficult to believe in the benign application of this ‘one law’ principle.

On the other hand, the Presidential promise may mean that a steamroller Rajapaksa parliamentary majority will absorb religious and ethnic minorities within the majority. Thus we come to the vexed matter of Sri Lanka’s personal laws, some of which are Indubitably problematic as the struggle of gender activists to reform Muslim personal laws show. However, reform and change of these laws must be in a consultative and collaborative manner, not in the majority stamping its constitutional will on the minority. Rudely cutting up, let alone snipping away at the shreds of the country’s multi-ethnic, multi-religious constitutional fabric, already in tatters after decades of vicious conflict will only lead to greater discontent, rebellion and ultimately revolt.

As previously observed, the post General Elections 2020 mantra of development over the Constitution is incredibly simplistic. How exactly will economic development be sustained in our fragile economic state if isolationist policies and an overwhelmingly majoritarian ethos is inflicted on the people through constitutional change of the Nation- State? Leaving intact other reforms as a sop to please the easily reassured will not suffice. Neither will naive undertakings of ensuring prosperity through ‘ developing the land.’ Did these policies of ‘ development as the cure’ work during the Mahinda Rajapaksa Presidency of 20102014?

Political sins and canny propaganda

What is different this time around, excepting the tremendous fury of the populace with ‘yahapalanaya’ sins? This was the unfortunate driver which handed an overwhelming mandate to the Rajapaksa-led alliance that is now being interpreted in convenient ways. Meanwhile, it is interesting that some within the Government propose to make the constitutional commissions ‘ more independent’ rather than scrapping them. Exactly how is this to be done, pray? Is that independence to be secured by giving the President the sole power of appointment of its members? That would be nonsensical.

Or will these commissions be placed under ministerial control? That would be tragic. An independent Elections Commission, despite all the sticks and stones thrown at its members, was responsible for an eminently successful election notwithstanding risks posed by covid-19. Heaping all the blame of making ‘ governance impossible’ on the Constitutional Council (CC) and the constitutional commissions is pure propaganda. Pre and post 2015, governance was made impossible because of impossible politicians pure and simple. Politicians constituted the majority in the 19th Amendment’s CC on a strategic choice of the ‘ yahapalanaya’ Government and the Rajapaksa-led Opposition.

This was a compromise that civil society, ( or elements thereto running about in the corridors of power at the time), should never have agreed to.The appointment of an atrocious Inspector General of Police (IGP) is often quoted to find fault with the 19th Amendment. But as said ad nauseam, this officer could have been removed on a mere parliamentary majority under the Removal of Officers (Procedure) Act (No. 5 of 2002) for ‘gross neglect of duty.’ This did not happen during the short- lived Rajapaksa Prime Ministership in October 2018 later ruled as unconstitutional by the Supreme Court or even after the 2019 Easter Sunday attacks. Instead the IGP was jailed and we had the farce of a perpetual ‘acting’ IGP.

Let us be done with pretty words

In the final result, Sri Lanka’s political consensus at all times has been anti- governance, which is why the 17th Amendment and the 19th Amendment both failed. At the last chance we had, the 19th Amendment’s CC, now possibly facing the executioner’s axe, should have followed transparent and regulated/ gazetted procedures. Granted, on all accounts, the CC’s functioning was consensual and amicable. The problem was in the absence of publicly accountable processes. And ‘independent’ commissions, however they are constituted, are the sum total of their members. Even if the appointment process is transparent to the highest degree possible, this is useless if men and women of capacity, commitment and principle do not consent to serve.

So let us be done with pretty words of making anything ‘more independent’ and sweeping promises of ‘one law for all.’ Let that not be the final insult to the Sri Lankan citizenry now reposing disconcertingly transcendant hope in a ‘ new’ legislative wineskin with ‘old’ wine, some waxing eloquent on monkeys and others issuing commands on the wearing of batik. As the Rajapaksa faithful cheer, a leading Buddhist prelate proclaims that ‘ Mahinda Rajapaksa is a Dhamma, a religion and a philosophy’ and the depleted if not pitifully de- legitimised Opposition whimper, the Constitution is set to be overhauled in the shadow of Sri Lanka’s return to dynastic family rule.

Dark comedy may be, in fact, all that we are left with.