Photo courtesy of LMD

The United Nations High Commissioner for Human Rights, Michelle Bachelet,  drew the attention of the world to the situation in Sri Lanka on 14 September, 2020 stating, “I encourage the Council to give renewed attention to Sri Lanka, in view of the need to prevent threats to peace, reconciliation and sustainable development.” She also said, “Among other developments, the proposed 20th amendment to the Constitution may negatively impact on the independence of key institutions, including the National Human Rights Commission.”

This should be a call to the Sri Lankan people themselves, who have been facing a continuing and devastating crisis of governance for several decades, as well as the UN and other international agencies. Governance is the basic function of the state, to operate under the rule of law with government departments carrying out their functions in accordance with the law and natural justice, and all the branches of government (the executive, legislature and judiciary) fulfilling their roles under the separation of powers model in a liberal democratic structure.

The UN and other international agencies should make it a priority to assist Sri Lanka to face this situation. Without addressing this crisis of governance, Sri Lanka cannot progress towards peace, reconciliation and sustainable development, or protect its people’s right to security.

How did Sri Lanka enter into such an enormous crisis of governance?

It happened because of wanting to concentrate all power in one person called the Executive President. It happened in 1978, when a new constitution was adopted for that purpose alone.

That disturbed the internal structure on which the political, legal, social and cultural systems of the country had rested on since independence.

The most significant damage came from reaffirming the limitation on the Supreme Court’s power of judicial review. That was an attack on the power of the apex court.

The immediate and direct result of that limitation of the power of judicial review was that Sri Lanka lost the means of judging the legality of legislation. The Supreme Court’s power was limited to looking into the constitutionality of laws within a limited period.

When the constitution itself has been created in a way that anything passed by the legislature is regarded as law, many otherwise illegal acts can be treated as not contravening the law.

The loss of the principle of legality is the worst thing that can happen to a legal system.

That 1978 Constitution was contrived to make what would be considered illegal in a civilized legal system to be treated as legal in Sri Lanka. This made it possible even to contrive ways to kill arrested persons, which is what enforced disappearances meant in Sri Lanka, in most instances. It also became possible to ensure that some cases of serious crimes could be not investigated.

In short, with the removal of power of judicial review, the Executive President could say, “I make the laws and I also decide how to administer them.” This was the meaning of the first Executive President’s famous statement, “We can do anything except make a woman into a man.”

An absolute majority in parliament was seen as a magic power but it was an ominous one. Soon this constitution gave rise to enormous contradictions that aggravated many conflicts. On every front, all normal tensions were dealt with in a way that fed further chaos. Sri Lanka, once known as peaceful country, began to be seen as a trouble spot in the world.

This chaotic situation negatively affected the possibilities of economic growth. Instead, the country’s debts grew. Unemployment soared, the mass scale exodus to foreign countries for difficult jobs became normal, and demoralization and hopelessness spread.

The Executive Presidential System introduced in 1978 was a deliberate move in favor of authoritarianism. It was framed as being good for bringing in foreign investment. All the hopes for economic growth were pinned onto this expectation of foreign investment.

The investors did their own inquiries and research. Their findings did not create any enthusiasm on the part of investors to invest.

As years went by, local disillusionment against the system also increased. Political leaders began to promise to do away with the 1978 constitution. Some drafts for a changed constitution were made.

However, all that could be done was to get an amendment to impose a few restrictions on presidential power. This is known as the 17th Amendment. Not long after, that amendment was replaced by another amendment with the view to gain even more presidential power. With a change of government, the 18th Amendment was replaced by the 19th Amendment, which tried to limit the president’s power. Now, with another change of government, another amendment has been proposed to grant the president unlimited power.

In a televised interview on 14 September, 2020 the new Minister of Justice Mr. Ali Sabry explained that the purpose of giving such unlimited power to the Executive President was to improve efficacy in all institutions as a precondition for attracting local and foreign investment to improve the economy.

However, the experience of the last few decades living under the 1978 constitution demonstrates that this hope is a grand illusion. The only realistic expectation for the economy as well as society lies in resisting this proposed move towards even more chaos and devastation. Absolute majorities in parliament can get any misguided law passed but such majorities cannot prevent the chaos that follows.

Why follow this precipitous path?

Perhaps the unspoken reply is, “Well, what else can we do?” This is a reply that requires a serious response from all people in the country as well as those living outside. It is also the challenge that the UN and other international agencies should address.

What are the alternatives to the 1978 model of misgovernance? How can the country get out of this vicious cycle? This can only come out of serious discussions pursued with good faith. As in situations where the country faces a natural disaster and people join together for a common cause, partisan and group interests should be kept down for a while, until a satisfactory solution is found for the country’s governance problem.

To miss this opportunity is to blindly walk into an abyss of authoritarianism, which has the potential to destroy everyone.