On the ‘Deep State’ and an Indecisive Government

It has long been conventional wisdom that a government forced to maintain a fragile political balance for its survival is good for the democratic process in Sri Lanka because the tug and pull of critical public pressure will impact more on decision-making.

 

Is a Government under siege good for us?
This is in contrast to overwhelming political majorities where undemocratic policies and legislation are bull-dosed through a complicit Parliament with no checks and balances. There are many such illustrations, most notably the Jayewardene Presidency and the Rajapaksa years, particularly from 2010 to 2014.
Of course, Sri Lanka has never had the bountiful luxury of both a strong and democratically motivated leadership. Strength, (whether of the ‘Braemar’, Ward Place elite kind or the far coarser Medamulana kind), always seems to be accompanied by a profound lack of respect for the Rule of Law. That is, however, a whole different lament altogether.

But I return to the assumption that a government under siege is good for us. Oftentimes, the examples cited in support thereto include the much praised 17th Amendment to the Constitution. This was agreed to by a brittle Kumaratunga Presidency just prior to its less than happy ‘cohabitation arrangement’ with the Wickremesinghe Government, 2001 to 2004. Similarly, the far more compromised but still useful 19th Amendment which reversed some of the evils of the Rajapaksa engineered 18th Amendment emerged as a result of the Sirisena-Wickremesinghe coalition.

Questioning deeper and darker realities
Certainly there is something to be said for the merits of this argument. But the flip side of the coin is that these surface assumptions do not question deeper and darker realities. For example, why did these democratic ‘transformations’ in 2001 and 2015 leave untouched the ‘deep state’ of Sri Lanka’s political patronage system and a ‘tamed’ public sector bureaucracy that thrives best when an insecure Government is in power? Important questions are left unanswered. Why for instance, did the 17th Amendment fail? Why also, is the 19th Amendment in the throes of succumbing likewise even as the idle minded are busily running around pontificating on constitutional reforms that needs a proverbial miracle to see the light of day?

There are discomfiting lessons of the 2001-2004 constitutional experimentation that may be pointed to. A selective reading of history would make us believe that the Rajapaksas were the only villains in dismantling the 17th Amendment. This is far from the case. The resistance to governance reforms initially came when the Kumaratunga Presidency (presumably dictated to by her ‘advisors’), refused to appoint the Constitutional Council’s nominee, retired Supreme Court judge Ranjth Dheeraratne as Chairman of the Elections Commission.

This refusal persisted even though the CC, comprising a formidable majority of independent members, dismissed her objection. This was the first signal that the 17th Amendment could be defied head-on. From that point, the decline was swift. And to be clear, this was cheered on by all political parties. It only needed the reckless profligacy of the Rajapaksas to tear away even the façade wholesale.

Rude badgering of the Government
This reading is equally true of the undermining of the Sri Lankan judiciary. It is ‘convenient’ to focus only on the impeachment of former Chief Justice Shirani Bandaranayake while ignoring the fact that the calamitous slide downwards was precipitated in many respects by the less than temperate actions of former Chief Justice Sarath Silva, the handpicked choice of Kumaratunga for that post (1999-2009).

Caught in an unwise boast of ‘restoring’ the independence of the judiciary with one wave of the wand by ejecting a sitting Chief Justice through an executive letter, this Government is now struggling in a trap of its own making. The unnecessary Ramanathan Kannan fiasco may have been avoided by the Office of the President swiftly and sternly nipping the presumptuousness of those lobbing for a particular judicial appointment, in the bud. But that did not happen.

And fast on the heels of that fracas, we have rude badgering in motivated quarters to ensure that a forthcoming appointment of the President of the Court of Appeal is made strictly on seniority, regardless of other ‘fit and proper’ criteria which rightfully must be applied.

The ‘deep state’ and the CTA
But worse consequences may yet ensue as a result of tortuous wriggling by an uncertain and chaotic political coalition. The potential of a ‘deep state’ security sector establishment to push for laws strengthening its heavy hand is now clear. One example is the draft Counter-Terror Act (CTA), analysed in previous columns. Some politicians are, meanwhile, proposing an ‘Independent Council for News Media Standards Act.’ This is cheered on by those who remain blissfully ignorant of dangers therein for print, electronic and web media alike.

In terms of this draft, a High Court can compel disclosure of a journalist’s sources to enable effective prosecution or defence in regard to a serious crime, or prevent clear and imminent danger to the constitutional order or the security of the State.’ This is classically imprecise language that raises red flags. What exactly is meant by ‘imminent danger to the constitutional order’ pray?

And sources can also be disclosed where there is ‘no alternative means of obtaining the information needed to prosecute or defend a case.’ This raises hideous possibilities of abuse. Existing legal precedents which strictly protect disclosure of sources with tightly defined exceptions may be overridden by this clause, including through politically motivated prosecutions, which we are familiar with. Similar concerns arise in regard to a stipulation that sanctions cannot be imposed for providing information to journalists, ‘except where the secrecy of the information is justified by a larger public interest.’

Understanding why democratic reforms are sabotaged
Advocates of the 2015 so-called ‘rainbow revolution,’ penning their signatures with much vim and vigour to Memoranda of Understanding with politicians are now resentfully berating their one-time saviors. But those who ignore history are ruefully bound to repeat much of those very same calamities.

We need to test proposed laws against the standard of constitutional propriety. Comfortable superficialities must meanwhile be probed. Is it better not to have an Election Commission or to have a body of which, at least one member unceasingly complains in regard to the Commission’s lack of authority? This similar question applies to a National Police Commission which seems helpless in disciplining law enforcement officers.

Certainly, if past lessons as to why democratic reforms were sabotaged had been properly understood in the first instance, greater caution may prevent us re-living those same failures, albeit clothed in a different style.

http://www.sundaytimes.lk

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