| by Kishali Pinto-Jayawardena
Courtesy: The Sunday Times

( November 9, 2014, Colombo, Sri Lanka Guardian) There is considerable confusion prevalent in Sri Lanka’s urban circles. At one level, the Bar Association of Sri Lanka is confused as to how (reportedly) an in camera sitting of the Supreme Court was held to consider the Reference by President Mahinda Rajapaksa on his ability to contest a third term under the 18th Amendment to the Constitution even whilst the Registrar had called for Written Submissions by the Bar on the matter, this week.

Nothing to be surprised at

As the Bar expressed its surprise at this apparently cavalier treatment, it plaintively pointed out that it represents 14,000 attorneys-at-law and as such, deserved to be heard at an oral hearing on a constitutional matter of vital importance.

Yet, there is really nothing very much to be surprised at. This is a Government which flippantly disposed of its own Chief Justice in 2013 as ruffians danced outside her official residence. The continuation of such practices under the Rajapaksa Presidency is to be expected. Indeed, astonishment would be called for only if this Government had deigned to give the barest of nods to constitutional law, practice and convention in such matters.

The hard truth is that painstakingly constructed legal arguments as to why a Rajapaksa third term is constitutionally not permissible under the 18th Amendment have become politically quite immaterial. We may like to persuade ourselves that the garnering of legal opinions, expert or otherwise, matter and that the law serves a purpose in Sri Lanka today. But the reality is far from the case with the Government’s disdain for constitutional niceties so openly expressed. We will return to this matter later.

Cosmetic changes in the police

Then again at another level, irrepressible optimists have hailed the decision of the Department of Law and Order to change the uniform of the police to be ‘people friendly’ as a positive step. But confused cosmetic changes cannot redress Sri Lanka’s heavily politicized and militarized police service. Some years ago, the Department embarked on a programme to make police stations more ‘people friendly.’ This was as asinine as the recent proposal by a newly appointed Secretary to the Department whose record as a former Inspector General of Police was far from perfect.

As senior retired police officers have increasingly agreed in the pages of this newspaper, (some directly in response to matters raised in these column spaces), Sri Lanka’s police service can only be improved if it is taken out of the political command structure. The restoration of a professional police command hierarchy is certainly fundamental.

And as the 1946 Soertz Commission, the 1970 Basnayake Commission and lesser distinguished bodies uniformly agreed, there must be independent supervision of the police disciplinary command. Perhaps the 17th Amendment needed fine-tuning in that regard. If so, then we must attempt this in all good faith. Changing the police uniform merely smacks of the patently ridiculous.

Confusion worse confounded

At yet another and more pedestrian level meanwhile, confusion is also prevalent regarding criticism of ex-Chief Justice Sarath Silva with one argument being that, whatever the past sins of this ex-Chief Justice may be, the constitutional issue that he has raised regarding President Rajapaksa’s third term is important and should be treated as such.

This is of course, a fundamental confusing of the harsh critique relating to that infamous ‘apology’ in the Helping Hambantota case with the entirely separate constitutional issue of the Rajapaksa third term. Having said that, it must also be remarked that extraordinarily, the latter issue appears to have struck the ex-Chief Justice four long years after the 18th Amendment was brought in. This question has now become a craftily constructed red herring in the public realm.

The ensuing uproar only admirably encapsulates the (existential?) confusion of Colombo’s urban legal elites. Let us contrast the reaction of Pakistan’s legal community when it was struck by a similar political calamity some years ago. The battle was fought not merely through convoluted pontifications on constitutional law circulating in rarefied confines but in taking the terrible degeneration of the judicial institution to the Pakistani people and invoking public support. Those leading the movement guarded their public credibility jealously, deliberately shutting out discredited voices in the process.

The asking of nonsensical constitutional questions

And even though this Government, (in the portly person of Minister Nimal Siripala de Silva perchance seeking to make amends for his dismal showing in the Uva Provincial Council election), has expressed glee that Opposition Leader Ranil Wickremesinghe has refrained from jumping on the Silva band wagon of the third term, this stand is only commonsensical.

To give due credit, the Opposition Leader has merely noted the legal point involved within an overall pungent observation that the Presidential Reference to the Supreme Court is a ‘joke,’ given that the President has essentially asked if he can himself contest a third time.

This curt dismissal is justified. The invocation of the consultative jurisdiction of the Supreme Court under Article 129(1) of the Constitution in this instance is decidedly not a matter of ‘public importance’ as that Article specifies, given that the President’s ability to contest a third term arises only as a matter peculiar to him, as a politician. Perhaps at last, the United National Party is ready to differentiate itself from the rest of a confused opposition wandering hither and thither in bewilderment. One devoutly hopes so.

A constitutionally rogue State
In sum, unforgivable delusions that we are still a constitutional democracy, with recourse to a functional system for our grievances must be abandoned forthwith, as comforting as these beliefs may be. The reality that we face is that of a constitutionally rogue State. As much as Pakistan’s struggle to preserve its constitutional system was waged in the political arena, Sri Lanka’s struggle must now be likewise. Devoid of that basic element, parroting the significance of constitutional law and interpretation thereof becomes just another mockery for this Government to shrug off contemptuously.