20 January, 2019

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Judiciary’s Message: Constitution & Democracy First

By Jayadeva Uyangoda

Prof. Jayadeve Uyangoda

In two judgments delivered in two consecutive days, Sri Lanka’s supreme court has sent out a firm message to the country’s quarrelling political leaders: constitution and democracy first.

The judges have also assured Sri Lankan citizens that in their fight to defend Sri Lanka’s endangered democracy, the judiciary is now a reliable arbiter. 

The Supreme Court has also said a firm ‘no’ to a narrow and personal agenda of President Sirisena who has, by a series of bizarre words and deeds, repeatedly proved himself to be a liability to the whole country.  

In fact, the issue that came before both the Court of Appeal and the Supreme Court for arbitration was a very simple one: Should Sri Lanka’s president, and by implication other political leaders, honour the letter and spirit of the 19th Amendment, or should they act on the pretext that the 18th Amendment, despite its abolition in April 2015 by Sri Lanka’s parliament by a two-thirds majority, was still in force. Actually, all the legal arguments presented before the judges by lawyers of parties to the constitutional dispute amounted to this elementary, yet fundamentally important point.

The Court of Appeal’s interim order as well the Supreme courts’ two determinations had no ambiguities about what outraged democracy-loving citizens as well: President Maithripala Sirisena’s actions and utterances on October 26 and after grossly transgressed Sri Lanka’s Constitution. 

What is most welcoming amidst all the setbacks that Sri Lanka’s democracy suffered during the past seven weeks is the emergence of the judiciary as a stable, reliable and independent protector of Sri Lanka’s democracy, its institutions and practices, as well as the rights and freedom of citizens. 

This is a very significant achievement made possible by the 19th Amendment.

It has occurred at a time when the head of the executive, in alliance with a coalition of ambitious power-grabbers, was in a mad rush to tear down the constitution and bring the legislature to its knees. They may have hoped that the judiciary would also capitulate. And the Supreme Court delivered, on Thursday and Friday, two of the most decisive of its verdicts in the entire history of independent Sri Lanka. These are not just landmark judgments, as law students would usually describe them. Rather, they are two future-defining verdicts.

From this Sunday onwards, Sri Lanka’s politics will enter a new phase with renewed hope for democratic consolidation. Citizens can now relax during Friday evenings with a sense of assurance that at least one branch of the state, the judiciary, is there to protect their rights and freedoms against ambushes in the dark by political adventurers. 

Fragile Gains

However, it is too early for vigilant citizens to drop their democratic guard. Democracy’s gains in the current context are fragile. There are two inter-related reasons for the fragility of democratic gains. The first is that the coalition of the power-grabbers that has been forced to retreat will re-launch their project of return through elections due next year. Secondly, the UNP, which will form the new government on Monday, is not likely to be a force strong enough to ensure democratic continuity, unless it drastically alters its disastrous economic and social policies. 

As long as parliamentary democracy – or political democracy — that the UNP is good at defending is not strongly backed by a programme of economic democracy and redistributive justice, there is no guarantee that the majority of voters in Sinhalese society would not be dazzled by the allure of right-wing ethno-populism of the Rajapaksa family.  

Given the massive economic crisis the country is already in, the UNP will have no choice but to ask the people to further tighten the belts. A crumbling economy can only offer any ruling party a recipe for electoral disaster. Thus, the 2019 will be a crucial year for Sri Lanka’s democratic future.

Amidst these uncertainties in the horizon, the citizens’ movements will have to be doubly resolute in defending their democratic gains. That calls for redoubling of democratic vigilance and activism on the part of citizens, political parties, civil society groups, and the moral communities. 

Revival

The past seven weeks of activism against President Sirisena’s madness also saw a host of positive developments in Sri Lanka’s contemporary democratic revival. Foremost among them is the role of citizens in resisting President Sirisena’s brazenly undemocratic decisions through vigorous political participation, humour, vibrant and active interest in politics, and the verbal resistance in animated conversations with fellow citizens. 

Similarly, citizens committed to defending constitutional governance, democracy, and freedom found themselves spontaneously mobilized. Most outraged by President Sirisena’s actions were the thousands of youth who voted for the yahapalanya project in 2015. There was also political re-awakening of citizens from all social classes who began to seriously discuss political themes that are usually ignored or taken for granted. 

This was also the time when political humour –creation, enjoyment, and sharing of it — emerged as the sharpest political weapon of citizens. In brief, there was a Republicanist surge of citizens’ political consciousness, education and activism in defence of political freedom. 

The preservation of the democratic space thus widened during the past seven weeks through continued and peaceful political resistance is a major task ahead. It calls for the consolidation and sustaining of citizens’ political activism as an independent political fore, not tied to the electoral agenda of any political party. 

In fact, only the constitutional part of the crisis has reached the stage of some resolution at the moment. The political side of the crisis and the intra-elite power struggle is far from over. 

Meanwhile, the peaceful resolution of the constitutional-political crisis through judicial intervention marks the beginning of a new era of democratic resurgence in Sri Lanka. How long will this new era of democratic revival last?

The ways in which the deeply divided and hostile factions of Sri Lanka’s political class might manage or intensify their unresolved conflict in the coming weeks and months will be crucial for determining the continuity and survival of Sri Lanka’s re-affirmation of democracy’s indispensability. 

Meanwhile, odds are obviously in favor of resurfacing in the open the intra-elite conflict in some new form. It might even be even as bizarre as renewing the old enmity between the Rajapaksa camp and President Sirisena. Mahinda Rajapaksa’s reaction to his current predicament might be a feeling that he has been double crossed by President Sirisena and his team. Can he come to terms with a political setback of such disastrous magnitude and sulk in silence?

New retreats from democracy can from a new UNP government too. Most immediate of them would be the UNP’s returning to the old tricks of covering up of corruption, renewing the secret deals with the Rajapakas, and taking citizens, particularly ethnic minorities, on a ride about constitutional reform.

 Democratic vigilance on the part of the citizens is most needed in the period ahead too.  

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Latest comments

  • 6
    0

    It is customary for the UNP to cover other parties corruptions for fear of a boomerang.
    If they had only taken to task the Mahinda government as promised before the elections, Srilanka would have been a decent democracy today. Knowing the past history of the UNP one cannot expect anything better now. Although UNP and Mahinda appears to to be foes they are actually a ‘friend in need’ for each other when corruptions are brought to light.
    UNP appears to be a friend of TNA but an actual foe when sorting out Tamil problems.

    • 0
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      KA
      What about UNP’s own corruption?

    • 0
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      K. Anaga, The last thing you said in “although UNP and MaRa appears to be foes, they are actually a ‘friend in need’….. by this everyone now knows the game theory of this whole drama. Its a game the ruling Elite Mafia is playing with our future, as they have already destroyed our past during 70+ years of rule conducted by the same team in turns. The MaRa team experimented their usual Racist/Fascist agenda and the UNP playing a defensive role in showing the “helplessness” card. Garbage Sira played the villain role by violating every norm and niceties of the democracy thereby showing the world and the world and to the future Racist leaning corrupt politically ambitious mis adventurers that anybody can do anything and come out safely without any harm if there is a window of opportunity to do the WRONG thing. This is a social engineering that was experimented. Also, they realised that the majority of the people are not ready to allow to destroy the system by the crooks who call themselves as the so called ‘Leaders’….

  • 1
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    Thank you prof ..you have been writing in sport of democracy and rule of law .
    It’s is great success for you as well.
    We all wish good for Lanka .
    But some got it wrong .
    It is not about politics of some but it is all about good governance and rule of law

  • 0
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    ::”This was also the time when political humour –creation, enjoyment, and sharing of it — emerged as the sharpest political weapon of citizens””—-Indeed Social-Media was a Tremendous driving force..but Not in the manner you describe.

    JAYADEVA UYANGODA You are under stating how much of Neo-Sinhalese-Buddhists have spoken in favour towards Mahinda-Rajapaksa throughout Social media…

    it’s fair to compare it to Buddha’s Second Reincarnations (whatever that is…)

    It’s Like MR is back with a Vengeance to Save the mother-Land….But that’s not all MR was dubbed Heavily as BAUDDHA-PUTHRAYA – Great Buddhist Savior……what I am puzzled Every Time I came across this What the Hell has MR HAs Done to be Recognised with Buddhism ??? People who come across these Social media posts should be alarmed & Disgusted. But they are not they actually approves this. Nobody says this is Buddhist-Sinhalese Extremism IN IT’S FLESH…….you english journalists are Underestimating & Cleary afraid to speak out about Sinhala-Buddhist Extremism…

  • 2
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    What a pity we did not have a similar process in 1971 when lives of thousands of innocent youths were sacrificed by a dishonest gang of criminals who are now trying to be the vanguard of democracy protection!

  • 0
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    Excellent piece. I am someone, who had totally lost interest in Sri Lankan politics….until 26 October. The greatest abuse of power, on that day, by a Head of State in Sri Lanka in our living memory, sparked my interest in wanting to know and participate in the conversation about what’s happening.

  • 1
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    It is not only Sirisena’s image that got damaged beyond repair, but it is also the image of Ranil Wickremesinghe that got dented. Ranil is personally clean like Sirisena, but allow others to indulge in corruption. The Bond scam is one example. Knowing Arjun Aloysius is the son-in-law of Arjun Mahendran, Ranil should have asked the latter to stay away from the sale of bonds. There was a conflict of interest.
    Of course, Mahendran also let down Ranil who appointed him as the Governor of Central Bank. Even after the scam got exposed he tried to save Mahendran.

    We expect more from a politician who is in parliament from 1977 and became the youngest Prime Minister in 1993 and as leader of the UNP since 1944. Yet there is nothing to crow about his achievements. Unlike Rajapaksa, Wickremesinghe’s communalism is subtle.

    After coming to power, he raised the salaries of public servants by Rs.10,000, gave away duty-free luxury vehicles to MPs, doubled the number of members to the LAA that burdened the Treasury.

    People think it was Ranil and not Sirisena who shielded the Rajapaksas for what reason/reasons nobody knows.

    Now after owning up past mistakes, he promises he will charter a new course devoid of corruption.

    Judging from his past record many people will remain sceptic.

    We should build a country where there is democracy, rule of law and good governance. Where every citizen should feel proud about his country, flag, anthem. Sadly today this is not the case.

  • 1
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    There is no room for complacency. Unless the grievances of masses of suffering people are addressed this victory for democracy will be short lived. There was severe economic set back during last 7weeks. Billions lost by currency losing its ground, foreign investors pulling out and selling treasury bonds and credit agencies downgrading Sri Lanka. Thus burrowing has become even more expensive. The new govt. should develop stratergies towards achieving economic freedom.

    Equally important is bringing the perpetrators of crimes to justice and not to shield them or protect them. Unless these issues are addressed people will come back with vengence at the next election, which is not far away.

  • 0
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    Lankawe started to travel on wrong direction from Don Stephen time. There is no leader to give U turn.

    If Stephen had sincerely developed market economy from the beginning now Lankawe, if not like Singapore, would be much better than this. It is talked repeatedly about 1953 Hartal in CT. It took place after that time Lefts observing how obstinate the UNP on its iron fist handed actions. But 1953 did not become revolution to set up a labor culture. That started on destruction of Tamil laborers. So 1953 Labor action only enabled the Pancha Maha Balawegaya party to be a formidable force. Instead of a unified ideal labor movement be born. SLFP, Jathika & Pivithuru Hela Urumayas, NFF, Vije’s JVP all came out of that Don Stephen’s destruction. They all believe that they all are left oriented labor activists, there to save Sinhala Mahajan. Country every day, because of lack of ideas, lack of a development philosophy, overflowing racial tension, taking advantage of the mass illiteracy by political leaders, has walked into the failed democracy path. Lankawe is a failed country politically, in internal harmony on language, religion and culture, and economically.
    Today Old King indicated that Tamils’ party staying in the parliament is problem for him. They say “if you can’t beat them join them”. If TNA cannot fix them it should leave them alone them and get out.

  • 0
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    This is a well written essay by a learned man. It is professional and objective. It addressed the outcome of the current crisis and future direction. The protection of democracy, rule of law and establishing amendment 19 as an important modification to the constitution were dealt with as well as the judiciry’s impartial and professional attitude to these important issues. The need for non political public to get involved in main issues were recommended.
    Cost of living, corruption, behaviour of the elite and prevention of ethno-populism were also discussed in the paper.
    Though all these issues affect Tamil people, ethno-populism causes great fear in them. The north already has the lowest standard of living and there is a large police and army presence there. They fear violence and greater discrimination. However many people expect that unlike before, ethno-populistic utterances may not have great vote buying power this time. A leading Sinhalese politician recently said ‘…..politics of hate & racism has no place in #SriLanka anymore. ’ Hope this comes true. In 1775, a famous English writer Samuel Johnson made this famous pronouncement ‘patriotism is the last refuge of a scoundrel’. Alas this is still relevant.

  • 0
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    As in 1982 referendum, my democratic franchise is robbed of resurrecting and rectifying a failed governance that continue to sell and rob my country. There is no elections for provincial councils and if the 20th amendment is brought successfully, my democratic franchise of electing a president will be lost too. Uyangoda and others can laud the judiciary and the parliament for it until the next irruption occurs.

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