A pale shadow of democracy

By Kishali Pinto-Jayawardena

(May 24, Colombo, Sri Lanka Guardian) Are we destined to endlessly repeat history, each time losing a little of what it means to be Sri Lankan along the way?

Proposed constitutional reforms

Now we hear talk of homegrown constitutional solutions and yet another Commission, this time most piquantly termed on ‘Lessons Learnt and Reconciliation’ prompting this columnist to question whether there are separate teams employed by the government working on imaginative titles for these most useless bodies. We are further privileged to learn that the new proposed ‘Constitutional Council’ in terms of the constitutional reforms will consist of none other than the President, the Prime Minister, the Opposition Leader and the Speaker.

This would be most amusing if it was not so tragic. So what reasons are we given to think that this body which consists predominantly of key government figures with an Opposition Leader who (lamentably) is most distinguished by a basic inability to take effective leadership of his vote base, will not be a mere rubber stamp for the Rajapakse Presidency? And in terms of this much vaunted constitutional reforms package, are we now hearing echoes of the United Front government’s farcically ‘autochthonous’ or homegrown Constitution of 1972?

The arguments in 1972

In 1972, this argument was fantastically simple in its rationale. The people are supreme. Parliament is comprised of the representatives of the people. Therefore, Parliament ought to be supreme. All constitutional and legal institutions should give way. Are we now seeing a resurrection of this rationale, with the one change being the concentration of power in the hands of a political family and their dominance of the Parliament to an extent never seen before? This is indeed, dangerous thinking.

Let us see what this meant in the past since we appear to be a people with notoriously short memories. In 1972, constitutional institutions were deliberately undermined. The judiciary was systematically stripped of its power to the extent that the judges of that time were even deprived of their traditional trappings of office such as their robes and wigs.

Taking out the Governor General, the government handed the power of appointment of appellate court judges to a non elective President acting on the advice of the Prime Minister. The Attorney General’s Department was subordinated. A politically subverted Judicial Services Advisory Board (JSAB) and an ineffective Judicial Services Disciplinary Board (JSDB) was established in place of the earlier Judicial Service Commission under the Independence Constitution.

There was no doubt that immense damage was done to the country’s constitutional institutions during this period despite attempts now by some of the key players then to whitewash these events.

The responsibility of the UNP

But all this is not to say that developments were rosy after the United Front was ousted from power in the late seventies by the UNP. On the contrary, the UNP (under JR Jayawardene) took the subversion of judicial institutions into unplumbed depths when, despite theoretically safeguarding the independence of the judiciary under the current Constitution, the higher courts were radically “reconstituted” and seven out of the nineteen judges holding office were not re-appointed, thus reducing their guaranteed tenure.

Police officers found responsible for the violation of fundamental rights were promoted and their damages and costs ordered by the Supreme Court were unconscionably paid by the Government. Procedural obstacles in judicial officers taking the oath of allegiance under the Sixth Amendment resulted in the police locking and barring the court houses and refusing entry to judges. The houses of judges who delivered ‘unpopular’ judgments were stoned and they were verbally abused by thugs.

So it is quite true that the UNP has scarcely any right to shed crocodile tears over current attempts by the executive to trespass on the independence of legal and judicial institutions in Sri Lanka. Therefore, its statements and pronouncements on matters such as safeguarding the independence of the Attorney General’s Department should be treated with the contempt that this deserves.

After all, some of the most striking instances of direct political interference with the Attorney General’s role in conducting impartial prosecutions took place under the UNP watch in the eighties and early nineties, including the assassination of Richard de Zoysa as well as the failure to prosecute those responsible for the massacre of prisoners at Welikada. The Attorney General and his officers at that time, as is now well documented, tamely submitted to political commands to subvert the relevant prosecutions.

The crucial importance of the prosecutorial function

We have seen these allegations leveled against state prosecutors in recent times as well, most particularly concerning the prosecution of JS Tissanaiyagam and the action taken under the Army Act as well as under the ordinary criminal law against Sarath Fonseka.

All being said and done however, this is absolutely no argument to say that bringing the Department of the Attorney General under the President (as constitutional as it may undoubtedly be in terms of J R Jayawardene’s highly problematic Constitution) is the right or the proper thing to do. True, it merely formalizes what had been practically happening before. Yet, is this an excuse to justify direct political interference in the prosecutorial function?

Neither is it an excuse to point to other countries operating on quite different constitutional conventions and traditions and say quite simplistically that the Attorney General is a member of the cabinet there, so why not in Sri Lanka? The point is that even if the Attorney General is a political animal in those systems, he or she is required to act wholly independently in exercising what has been termed as ‘quasi judicial’ functions or prosecutions, according to well established constitutional conventions and traditions (see Sir Elwyn Jones, the Office of the Attorney General, 1969, CLJ, 50 referring to the English Attorney General). In the vast majority of cases in these jurisdictions, this function is indeed performed independently.

Checks and balances v a complicit silence

In the small number of cases where it is not, there are sufficient indignant voices naming and shaming those who are responsible for the politicization of the function to rein the politicians back. This we saw both in the United States and in the United Kingdom in respect of arbitrary prosecutions of ‘terror suspects’ Can we boast of similar vigilance here in enforcing these essential checks and balances? Can we even say that constitutional conventions are respected? Look at what happened most singularly to the 17th Amendment to the Constitution which was initially welcomed with loud huzzahs by both the parliament and the public but has since then been discredited most unjustifiably and most successfully by this government.

So what we have instead of checks and balances is a complicit silence on the most part or an easy justification of what should never be justified. This is the essential difference between democracies in other countries (as flawed as they are) and that pale shadow which prevails here.