By K. Mukunthan –
The historic judgement by the Supreme Court of Sri Lanka that President Sirisena’s decision to dissolve Parliament on November 9 was unconstitutional and illegal is to be wholeheartedly welcomed. Though this ruling may not signal the end of the constitutional crisis, it should be recognised that this is the first time in Sri Lanka’s history the judiciary has made a momentous decision in the adjudication of the conflict between the legislature and the executive. It appears that the 19thamendment to the constitution, championed in 2015 by progressive polity including President Sirisena himself, has allowed some space for creating independent institutions, which now have the capacity to resist arbitrary actions by the Executive President.
While this progressive outcome is welcomed and respected, a learned judgement on the independence and effectiveness of various important institutions can only be made when human rights and political issues that are important to the numerically minority communities are also addressed promptly and impartially. The litmus test for the independence and impartiality of the judiciary will be when serious cases of human rights violations and war crimes are heard – particularly when the victims are Tamils and the perpetrators are security forces and those linked to the establishment. Until those responsible are prosecuted and punished, the clarion call for credible international participation will not subside.
A reflection on the recent constitutional crisis shows that for far too long Sri Lanka has been wrongly believed to be a respectable democracy, often with descriptions such as ‘the oldest democracy in Asia.’ Whenever politically inspired brutality reached alarming proportions, often with the connivance of the state, it is this façade of democracy that gave the country a convenient cover. But a deeper analysis of post-independent Sri Lanka reveals, at best, it could be described as a notional electoral democracy where transfer of power occurred after periodic elections. Realistically though, it is a highly superficial quasi-democracy with weak democratic traditions and vulnerable institutions. The violence and armed rebellions by both the Sinhala radicals and Tamil rebels – that plagued the country for decades – are testaments to this appalling mess.
‘Ethno-centric majoritarianism’ and ‘constitutional manipulations for short term self-interest’ are two fundamental faults in Sri Lankan democratic practices, which extracted a heavy toll on the Tamil community. Disenfranchisement of close to a million Tamils living in the Hill Country (1948-49) and unilateral abrogation of Pacts signed with Tamil leaders to satisfy extreme Sinhala-Buddhist nationalistic elements (1957 and 1965) are prime examples of the former. The refusal to faithfully implement the 13th amendment to the Constitution (1987) that provided limited autonomy to Provinces, and the lack of interest in accommodating Tamil aspirations in a truly pluralistic Constitution illustrate the later. Such sectarianising of governance practices continues to date as manifested in the refusal to share political power with Tamils more than nine years after the end of war, just as with the politicising of accountability processes aimed at addressing wartime human rights violations. All these lead to the burning questions among Tamils: Even if a constitutional outcome is achieved, what are the chances of it being genuinely implemented, or worse, reversed in the not-too-distant future?
It is indeed an irony of the highest degree that the Parliamentarians from the Tamil National Alliance (TNA), which represents the Tamil community from the North-East of Sri Lanka, find themselves in a position to play a crucial role in restoring the constitutional governance of the country – despite the undemocratic practices to which the Tamil community has historically been subjected to. Though morally and legally warranted, the risks of antagonising the Sinhala nationalistic elements which are predominantly associated with the constitutional coup cannot be underestimated. Under such polarised and poisoned political atmosphere, a constitutional outcome that would address the long-term concerns and aspirations of the Tamils is highly unlikely. The recent statement from the TNA leader and Leader of Opposition Mr. Sampanthan that “Tamils are likely to become the worst victims in Sri Lanka’s political crisis” articulates just that. TNA also had to withstand hard-line opinion among sections of Tamil populace that Tamils should sit out of the crisis in the South. It is in this context, that the pivotal role played by the TNA in restoring democracy should be valued and reciprocated by the Sinhala political constituency and key international players. It is hoped that the TNA’s timely gestures will turn out to be a useful political capital capable of delivering tangible outcomes for the future wellbeing of all communities, including the Tamils of Sri Lanka.
The constitutional coup and illegal transfer of power was entirely predicated on the perception that by hook or crook an artificial parliamentary majority could be proven, and it is the hollowness of this ‘wisdom’ that opened other possibilities including the monumental judicial intervention. In this context, in addition to the historic role played by the TNA, a broad spectrum of small but significant political parties representing different community interests and political philosophies including the Janatha Vimukthi Peramuna (JVP), and several progressive NGOs and social media played key roles. And they all deserve commendation.
Equally important is the international community, in particular the key western countries and India, taking an active and principled stand, which included non-recognition of the newly installed government and explicit articulation of potential economic repercussions. The economic impact of President Sirisena’s misadventure was swift and severe. It included: holding off discussions on nearly $500 million US aid program and a soft loan arrangement of $1.4 billion from Japan; EU warnings on GSP+ concessions; credit rating downgrades by Moody’s, Standard & Poor’s and Fitch; continued decline of the Sri Lankan currency; freezing of hundreds of millions of private investments and sharp reduction in tourist arrivals. In fact, the present constitutional crisis and the effectiveness of the economic leverage at the disposal of the international community provide a useful blueprint, and if needed, could be replicated to deal with potential governance and accountability challenges in the future.
The twin issues of Sri Lanka’s democratic governance – the constant tug-of-war between authoritarian tendencies and independent institutions and resolving the national issue by accommodating the Tamil community into the constitutional fabric – have never been successfully addressed. In many ways, the escalating erosion of democratic governance resulting from these major faults has precipitated the present nadir. The shock to the informed citizenry and the system of governance is so severe, that perhaps this is the trigger that was needed to force an upward trajectory in the constitutional governance agenda of the country.
Driven by all the right-thinking people, institutions and leaders of the country, with active participation and support from the international community, it is hoped that Sri Lanka will embark on a new journey of justice and fair play for all its peoples in the New Year.
Dr K. Mukunthan is one of the Executive Directors of the Australian Tamil Congress (ATC). He is also a Director of Global Tamil Forum (GTF) where he is a Senior Member of the Strategic Initiatives Team.