By Sumanasiri Liyanage –
One of the main reasons why the people in Sri Lanka decided to topple Mahinda Rajapaksa regime on January 8 was its excessively authoritarian character in governance. Hence, people expected more democratic governance from the new regime. What we understand by ‘democratic change’ may be problematic as democracy is, as Wendy Brown says, “among the most contested and promiscuous term in our modern political vocabulary” (Undoing the Demos). She further writes: “In the political imaginary, ‘democracy’ stands for everything from free elections to free markets, from protests against dictators to law and order, from the centrality of rights to the stability of states, from the voice of the assembled multitude to the protection of individuality and the wrong of dicta imposed by crowds.”
It is true that at macro level the new regime was able to implement long overdue constitutional reforms reducing the power of the executive presidency (19th Amendment) and changing the electoral system (proposed 20th Amendment). These two amendments, albeit half-baked in nature, may have positive implications in macro-democratic environment in the country that was paralyzed by the enactment of the second republic constitution of 1978. Nonetheless, the question remains as to what extent these macro-democratic reforms would change the general environment of governance. Has the way in which politicians, judiciary, police and the bureaucracy operate in real practice changed as a result of these reforms? If I put it another words: Can we see a beginning of a process of inversing the ‘real’ world practice of nearly 4 decades? Of course, it is too early to forecast what would actually happen in the future. But my submission in this article is that the current trends signify not a reversal of the process but a continuation of the past process.
Prof Carlo Fonseka, in a recent article in The Island, has shown that the way in which President acted in the appointment of the Prime Minister and the removal of Chief Justice was undemocratic and contrary to the existing rules and procedures. One may argue that the appointment of the Prime Minister is constitutional as the constitution does not explicitly say that a person who has the majority in the Parliament be appointed as the Prime Minister. Although the 19th Amendment was enacted by the Parliament, it appears that the way in which the President operates today is not qualitatively different from the way in which the previous presidents had operated. The executive presidential system, although gives enormous and unchecked power to the elected President, she or he is bound to get the support of the Parliament as it has the power to pass financial bills. Only short-term confrontations can occur, either the President wins or the Parliament wins. What we have seen in the recent past, especially under President Mahinda Rajapaksha, is that the President used both and carrot and stick in taming the power of the Parliament for which the party mechanism was not adequate. Party mechanism of the two main parties were designed following the executive presidential system. So President and the president/leader of the party to which s/he belongs have become the same person. Like Mahinda Rajapaksa, the current President, Maithreepala Sirisena is trying to maintain his hold on power by throwing many types of bread crumbs to either silence the opposition or to win their support. The recent appointments of minister from the SLFP and the appointment of SLFP stalwarts, Rathnasiri Wickramanayaka and DM Jayaratne as Senior Presidential advisors also demonstrates anti-democratic continuation of presidential system that legalize the system of bribes. Similarly, like Mahinda Rajapaksa, he has been trying to crush pro- MR elements within the SLFP by using his party presidency.
One may argue that although the steps taken by Maithripala Sirisena seems non-democratic by themselves, in the context of previous strong authoritarian rule its reversal may not be possible with using the same high-hand tactics. So the usual logic ‘end justifies mean’ can be deployed to legitimize the non-democratic actions painting them as conjunctural. Although it entails some amount of truth, it is possible for it to be a dangerous proposition. Does the President stand for democracy? Two statements ha has recently made put a strong question mark on his understanding of democracy. The first statement was made at the ceremony that announced the decision of making all the personal belonging to civil armed force permanent. At this meeting, he proposed that all young people should be given a compulsory military training in order create a disciplined society. Following president JR Jayewardene, he praised Lee Kwan Yu of Singapore not because his achievement in the economic front (as JRJ did), but because of his action to disciplined the nation. This is much more that the steps taken by the previous government to give military training to school principals and induction to university students by military persons. The second was his proposal to extend capital punishment to more offenses.
It is important to note that it was not only the actions of President that show the continuation of non-democratic tendencies. The prime Minister and some cabinet ministers have been engaging in old undemocratic practices. The best example of the way in which the government encountered student protests and other peoples’ protests. Two student leaders were white vanned; some were arrested; students protests were faced by the so-called minimum force. We have witnessed the same in Wellampitiya, Jaffna and many other places. Some people may argue that these protests were to provoke the government so that it is forced to take repressive measures. This is an absurd argument. Democracy is tested when people are given the right to protest. If all are hunky dory, protests are not needed, and even a few ‘provokers’ call for a protest, other will neglect the call. The Open University has increased its fees by 120% last year. The continuous student protests were ignored. The particular area should have system to handle its waste not to make it a problem of others. When compared with the previous government, the present government is not improvement. It appears that the police and judiciary once again is applying the same work procedure following the government’s line as it did under previous regime.
The same trend can be seen in judicial action. Arrests and keeping them in custody are a serious affair. The power to arrest is a major source of corruption and taking revenge. Many arrest in the recent past gives the impression that those decisions were not taken only on legal grounds. Here the warning given by Indian Supreme Courts seems to more appropriate.
In the Joginder Kumar v/s State of Uttar Pradesh case (air 1994, SC 1349), the Supreme Court observed: “No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen, and perhaps in his own interest, that no arrest should be made without reasonable satisfaction through some investigation as to the genuineness and bona fides of a complaint and a reasonable belief, both as to the person’s complicity, and as to the need to effect arrest.
“Denying a person his liberty is a serious matter. The recommendations of the National Police Commission (NPC) merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issuing notice to person to attend the Station House and not to leave the Station without permission would do.”
“If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith…proceed in person, or shall depute one of his subordinate officers not being below such rank as the state government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender.” Note that the words “and, if necessary” have been deliberately used, indicating that the law does not authorize the police to arrest in every criminal case. But the reality is that the moment an FIR for a cognizable offence is lodged, policemen rush to arrest and often demand money for not doing so.
How do we explain the continuation of non-democratic practice although people expect a “change” on January 8, 2015? Of course this phenomenon may not be attributed to a single course. In fact, the country was not given on January 8 a new set of political leaders; it was the same group with the same ‘habitus’ are controlling the government and the state. Maithripala Sirisena and Ranil Wickremesinghe defended the system as it existed prior to January 8. The track records of the new ministers were not better compared with the ministers of the previous government. The second reason is totally “uncritical nature” of the civil society. Even some has attempted to portray student protests and Inter University Student federation as “provokers”. This is tantamount to legitimization of repressive action by the government.
This brings us to an issue of fundamental nature. Is there a basic contradiction between political conjunctures and democratic process? In some context, political conjunctures may justify imposing limits to democratic process if the unabated democracy itself becomes hindrance to expected and accepted goals. Nonetheless, any justification on this ground should raise the issue what defines the political conjuncture. Some civil society people may argue that the political conjuncture is defined today by increasing Sinhala Buddhist nationalism. However, this argument does not hold water stronger version of Sinhala Buddhist nationalism can be seen within the government. My reading of the situation have made me feel that the democratic change is being blocked by the political conjuncture of neo-liberalism that this government intends to follow more vigorously.