Morality in Sri Lanka’s Constitution: What our Court failed to see

After saying that EC appointments and to the Judiciary could be made directly by the President, it is pointless to argue that we can sue the President for abusive discretion

Sri Lanka’s 1978 Constitution kept the existing immoral foremost position for Buddhism and introduced a strong presidency that every government promised to abolish but once elected, never did. It allowed the Rajapaksa family – Mahinda, son Namal, brothers Basil and Gotabaya – to do egregious wrongs. 

Mahinda had a deal with the separatist Tamil Tigers to prohibit Tamils from voting in the 2005 Presidential Elections. The then Election Department under a Commissioner failed to declare the low-turn-out elections in Tamil areas void. Mahinda became President. His family held most key offices in 2005-2015. 

By civil war’s end in 2009, the UN estimated that 40,000 minority Tamils were disappeared. White vanning disappeared the Sinhalese opposition too. Looting of State coffers and disappearances increased. The tired people turned out the Rajapaksas in the 2015 elections with the help of Tamils and Muslims. 

19th Amendment

The Constitution was amended through the 19th Amendment introducing independent Commissions including the three-person Election Commission, EC, replacing the Election Commissioner. Removal of EC members was made difficult, requiring the same process as removing a Supreme Court Justice. 

Presidential term limits were restored. It prevented Mahinda contesting. The age limit was increased to 35. It blocked Namal from succeeding Mahinda. Dual citizens could not be President or MP, stopping the two brothers. The new Government also agreed at the UNHRC to prosecute soldiers for war crimes. 

However, because of what the ICJ calls Sri Lanka’s “Crisis of Impunity,” underscored by the International Independent Group of Eminent Persons (Chaired by Justice P.N. Bhagwati) withdrawing from observing Sri Lankan human rights trials citing “lack of political will from the Government of Sri Lanka to support a search for the truth,” international participation in war crime prosecutions was agreed to. 

However, the new Government was weak and riven by rivalry between the President – Maithripala Sirisena, a former Rajapaksa Minister – and Prime Minister Ranil Wickremesinghe. It feared taking on Sinhalese communalism as Buddhists targeted Muslims and Christians. Corrupt practices continued. 

The Rajapaksas working with the President dissolved Parliament in October 2018 ahead of the 4.5 years when it could not be. The EC by majority decision agreed to hold the illegal elections to a new Parliament. My fundamental rights petition, joined by others, was key in getting a unanimous verdict nullifying dissolution from the full-bench Supreme Court. It was a rare high moment for our Judiciary.

Gotabaya was elected President in November 2019 after renouncing his US citizenship. Tamils Districts gave him barely 20% of the vote. President Gotabaya wanted early Parliamentary Elections despite COVID as the economy was sinking. 

Two of us on the EC held that it was dangerous because of COVID to hold elections on 25 April 2020, Gotabaya’s date. The Supreme Court allowed us to set a new date, 5 August 2020. As the campaign raged, Rajapaksa ministers publicly threatened to remove me once elected. State newspapers created interviews with the EC Chairman that he never gave, saying I should be removed.

The Sinhalese, seeing the Rajapaksas and the Army as saviours for routing the Tigers despite the carnage of Tamil civilians, returned the Rajapaksas with nearly two-third of the seats. The Government withdrew from the UNHRC Resolution promising war crimes prosecutions. 

20th Amendment

Crossovers ensured the necessary two-thirds to change the Constitution, concentrating more powers in the President through the 20th Amendment. Commissions, the Chief Justice, Supreme Court Justices, the Attorney General and others would be appointed directly by him; no more through compulsory recommendations from a politically-neutral Constitutional Council. The Audit Commission and the Procurement Commission were abolished, readying us for looting again. 

I went to court again. There were 38 other Petitions. But by now the 20th Amendment was a certainty. The Government had two-thirds, and 50%+1 at a referendum was easy for a government seen as the saviour of the Sinhalese. It was not surprising that the Court allowed all the proposed changes except removing the President’s duty to create conditions for free and fair elections, removing the right of citizens to sue the President, giving the President the power to dissolve Parliament after one year, and making it no longer an offence to violate regulations set by the EC. That was tokenism.

After saying that EC appointments and to the Judiciary could be made directly by the President, it is pointless to argue that we can sue the President for abusive discretion. Few judges will rule against a man who will appoint future judges and determine their own promotion to Chief Justice. He has already made many illegal appointments outside his purview – for example before the 20th Amendment the President could not hold a ministry but Gotabaya appointed the Defence Secretary and ran the ministry.

The apex Court’s determination was announced to Parliament on 20 October. With committee-stage amendments purportedly addressing Court concerns, the bill was passed on 22 October. There was no time to study the decisions or seek the Court’s opinion on the amendments. It is the new Sri Lanka.

Fundamental rights and the new Sri Lanka

However, can fundamental rights be removed by the majority, by two-thirds or two-thirds plus a mere 50%+1 vote? The right to life, and the rights of 40,000 executed or disappeared, cannot be derogated by a referendum. 

Even without the amendment, the EC has been already asked by the Army for voters’ lists which we have refused. The next Commission might not be so serious about privacy. Every general refused a US visa for war crimes is now a high Sri Lankan official. The EC Chairman broke tradition meeting the Prime Minister in his home (instead of in Parliament) without the other two. The President quietly pardoned a soldier convicted of killing a Tamil child.

I can be removed for pressing charges – as I have – against the Minister of Justice for threatening Muslims with a thrashing if they did not vote for Gotabaya. The Attorney General is not moving on the EC’s cases on election offences. To cite just one example, a case has been stuck because the AG called for the file from Court and has not returned it for a year for the case to proceed. The EC wrote many times to the AG with no reply. 

Another example is that even after the 20th Amendment, by the Interpretation Ordinance, Commissions go on till their original terms end – we on 12 November but others for a year. The Government has said we go out of office as soon as the 20th Amendment is certified and new members appointed. Unfortunately, few dare to challenge that. These two examples depict the new Sri Lanka.

Laws must be moral

Laws must be moral, not just approved by the majority. Or the slaves who were lawfully owned would not be free today. No referendum can justify immoral laws.

Hypothetically, say, our Parliament with a two-thirds majority passed a constitutional amendment saying all Tamils and Muslims must be lined up and shot unless they became Sinhalese-Buddhist, and then the people approved this in a national referendum. Would our Supreme Court approve the change? Under our Constitution that would be fine. 

The way the country is changing and the way and the people for whom the Sinhalese are voting, this is very much in the realm of possibility. Certain rights are nonderogable. It is unfortunate that the Supreme Court could not see our existing rights to an independent Election Commission and Judiciary in this light.

There is nothing now, with these bodies being expanded, to stop stooges from being appointed to the EC or the Supreme Court. We will then have an even greater deterioration of our badly-flawed Constitution.

The world should not save a Government through loans to tide over debts when it reneges on its UNHRC commitment after murdering its own citizens. The world must not help kill an old democracy. 

(The author is on the Election Commission of Sri Lanka. Among his books is ‘Ethics for Professionals: A Human Rights, Internationalist Perspective,’ Cognella, San Diego, CA, 2019.)