Focus on Rights

Mealy mouthed parliamentary debates on the constitutional council
Indisputably, the naive assumption that our inherited 'democratic' legacies carry with them, all the formulae for building equitable and just societies has now been disproved. The old belief that the state and the law exists for the common good is displaced, perhaps irrevocably. Along with this displacement, has come also, a dangerous cynicism in the normative power of the constitution. Sadly, constitutionalism has unabashedly become not a vehicle of transformative institutional reform but rather an expedient weapon of politicians. Concurrently, we are exhibiting an equal cynicism with the institutions of the old order, viz; a justiciable bill of rights, an independent judiciary and workable democratic structures.

This is why we see mealy mouthed and tremendously hypocritical debates in Parliament this week over the disgustingly prolonged constitution of the Constitutional Council as well as, far more dangerously, apparent proposals by the office of the Presidency to replace the CC with a Parliamentary Select Committee. The extremely ludicrous nature of such a proposal is self-evident.

This current state of dysfunction in Sri Lanka is not uncommon in South Asia, but is reflected equally, if not more so, in Bangladesh and Pakistan. Grappling with problems of its own, India has however yet managed to keep some balance in the protective continuance of its democratic institutions. Nepal's context is, of course, very different.

In the other three countries, including Sri Lanka, election bodies have become the focal point of political attack. Ostensibly, these tussles have arisen due to deficiencies in the applicable laws. Currently in Bangladesh, intense legal tussles are taking place in relation to the Elections Commission and the preparation of voters' lists. Attempts have been made to reconstitute the Elections Commission with a bias in favour of the government. Appointments of the three member EC is determined by the President according to the advice of the Prime Minister. No specific criteria is mandated for the appointments.

In the past, and problematically so, High Court judges, both working and retired, came to be appointed to the Commission, (resulting in the phenomenon that Sri Lanka is well familiar with), viz; favorite judges being rewarded by well timed appointments. This, in turn, resulted in the continued discrediting of the Commission and differences of opinion between the Chief Elections Commissioner and the other members of the Commission which continue to date.

One sees immediate parallels in this regard with Sri Lanka with its yet-to-be appointed Elections Commission and now, the core issue over the non-appointment of the Constitutional Council itself. Then again, one is inclined to suspect a special complicity between political parties to ensure that election bodies lack the requisite powers to enforce compliance with their directions. During the previous local government elections, the Commissioner of Elections complained about his inability to declare results of polling stations as void due to deficiencies in the Local Authorities Ordinance. Generally, he has also complained that he cannot enforce his directions relating to misuse of state resources issued under the 17th Amendment. These are only some of the problems that he faces.

Equally so, in Bangladesh, all that the Elections Commissioner can do in the case of violations of the code of conduct, is to ask the offender to refrain from such conduct. Though the Commissioner has asked for powers to cancel candidature in such instances, this has not been granted.
What is also interesting - and indeed a common factor in these three countries - is the intersection of the judiciary with the government. The basic concept of the independence of the judiciary has been manipulated in greater or lesser ways by external political forces creating their own internal ruptures. Failures of civil society and the media to arrest these ruptures have been significant.

In sum, all this has meant that constitutional amendments such as the 17th Amendment, with its high moral authority, have become almost but practically useless in societies which treat pristine fundamentals of democratic governance with callous indifference. This is why no political party of either the government coalition or the opposition has bothered itself in any great measure about this problem.

Poignantly, despite lacking the long and autocratic military histories of both Pakistan and Bangladesh, Sri Lanka now has more in common with those countries insofar as its systemic functioning is concerned, rather than with India. This is not to minimise the obvious problems of India's myriad diverse millions. But, one cannot deny the fact that Indian democracy has been remarkably resilient in its functioning. Strong civil activism, judicial independence and media strength have managed, in large part, to broadly restrain India's politicians, who are no better or no worse than the rest of South Asia's politicians. In contrast, Sri Lanka has significantly failed.

And blaming the ethnic conflict for this failure, as convenient as it is, bypasses the fact that the very reason why no acceptable solution can be found is because of these very failures of governance. Perhaps, a different reality for this country in particular will emerge out of these travails that we are experiencing. Perhaps, with the displacing of the old order, our societies may strive for a newer contract for democratic existence. Perhaps also, one may hope to fly.

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