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When democratic institutions die people become the living dead

Sep 11, 2010 4:21:00 PM- transcurrents.com

by Kishali Pinto Jayawardene

There were passing antics on display this week over the 18th Amendment to the Constitution. One considerably amusing spectacle was the unholy difficulty with which apparent supporters of this perverse amendment stuttered and stammered over their positions or the lack thereof.

Unconvincing actors and pathetic explanations

For instance, we had the Sri Lanka Muslim Congress leader Rauff Hakeem embarking on a defensively convoluted explanation of why his party is switching political hats, which hearkened back to his schooldays. His pious if not quite vain hope that the independence of the judiciary will be safeguarded could only evoke ironic chuckles.

Then we had the (erstwhile?) leftist Vasudeva Nanayakkara who cut a somewhat more pathetic picture than most when he endeavoured to explain that he was against the contents of the 18th Amendment but was anyway supporting the government due to his fear that the administration will be overthrown by unpatriotic forces. Would it not have been far more honest to have simply declared that they are supporting the 18th Amendment out of sheer self interest?

Apart from these unconvincing actors, we had External Affairs Minister GL Peiris surpassing his usual inanities when he proclaimed that the 18th Amendment will lead to a strengthening of the franchise. And the less said of the Jathika Hela Urumaya, the better. This party apparently saw nothing incongruous in their firm declaration that the constitutional commissions should be independent despite the reality that the 18th Amendment actually destroys any vestiges of such independence.

All this is nothing new. We have seen such ‘patriotic’ treachery in the past. And history has always recorded this fact, even if the gains appear to be all to the contrary in the immediate present. There is no doubt that those who supported this death chant for democracy in Sri Lanka, will also have to rue this fact later.

When institutions die…

However, this column is preoccupied with a more pressing question than the antics of hypocritical politicians. The passing of the 18th Amendment brings to the fore, a curious but fundamental question. When liberties are taken away and when democratic institutions die, is it even worse than human beings dying? This is the query that came to my mind when writing to a colleague and friend this Wednesday. His immediate answer, that when institutions die living people end up living as if they are dead, touched a raw nerve.

Let us take some time to ponder this question. In the eighties, people of both the majority and the minority communities died in their thousands both in the North/East as well as the South, broadly speaking. State repression was at an all time high under the heavy hand of the United National Party. Yet there was vigour in opposition and not necessarily political opposition.

The media played a significant role as an opinion maker in compelling even the most grandiose politician to rethink certain strategies. There was intellectual opposition coming from community movements and protest groups comprising of academics, lawyers, activists and trade unionists among others, most often operating out of their homes and working with the bare minimum of financial resources.

The strength of apolitical voices

These voices did not belong to commercialized professional outfits with sprawling offices located in Colombo’s elite residential areas. Their moral authority came from the fact that they did not toe the line of any particular political party and therefore, when they spoke people as well as politicians listened. Most importantly, despite the terror of the eighties there were the courts.

Using a so called referendum to undermine the franchise by then President JR Jayewardene, the stoning of the houses of ‘politically unpopular’ judges and the abuse directed at them is now part of recorded history. Jayewardene, it must be recalled was thought to be positively Machiavellian until Mahinda Rajapaksa came along and stood this received wisdom quite upon its head.

But the point is that the judiciary (largely as a whole) kept their integrity intact during that period. A constituency of public opinion recognized the core importance of constitutional institutions in general and an independent judiciary in particular. This faith was kept alive and enabled judges to stand up against aggressive political authority, sometimes in the most dangerous of moments.

Liberties lie in the hearts of people.

Yet do we have this same faith today? In the sphere of public debate, we even hear dismissal of the very idea of liberal democracy. China is being touted as the role model where economic development has trumped personal liberties and political freedoms. Is this what this country, earlier referred to as one of South Asia’s oldest democracies, really aiming at?

The fact that academics, professionals, lawyers and law students protested this week against the 18th Amendment was encouraging. Far more voices should rise against the veritable dying of our constitutional institutions. We need a public constituency in support of the independence of the judiciary. Even if a judicial officer attempts to be independent, what stands between that individual and swift executive vengeance?

An appellate court judge deciding weighty issues of constitutional law or a High Court judge deciding an issue of the liberties of this country’s former Army Commander will face this same dilemma. Much of the deterioration today is due to the infamies practised unconscionably by former Chief Justice Sarath Silva during his ten year term but it is time enough and more we stopped lamenting the past.

The line advanced by some that ordinary people are not interested in the Constitution but are occupied only with filling their stomachs is so simplistic as to be virtually laughable. Such painfully superficial advocates should be reminded of Judge Learned Hand’s beautiful appeal that liberties lie in the hearts of the people and when that hope dies, no Constitution and no law can save it.

In support of a Constitution embodying justice

The 18th Amendment exposes the Constitution of 1978 as the utterly perverse constitutional document that it is. The bandages temporarily put on this constitutional obscenity by the 17th Amendment have now been stripped away and we cannot shut our eyes to this fact. This ‘basic law’ should be rejected by a growing constituency of public opinion as unjust. It should be replaced by a Constitution embodying a fairer contract between the rulers and the people.

This country could perhaps recover from the deaths of its people through a process of mourning and reconciliation. But can we say the same when institutional democracy dies? Where is the recovery then? ~ courtesy: The Sunday Times ~