Colombo Telegraph

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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