Despite the undeniable shock caused to Sri Lanka’s democratic system on October 26th 2018 as a result of President Maithripala Sirisena’s swearing in of a new Prime Minister lacking a majority in the House, several unmistakable positive factors have emerged since then.

Those ‘legal experts’ who led the President up the garden path in persuading him to discard constitutional prudence should hang their deviously plotting heads in shame. Assuming they feel shame in which case, (as that colourful colloquialism sharply puts it), pigs may fly. Of course, it is very much an open secret as to who these reprobates are, including those who played fast and loose with the country’s judicial system for years. But the President is yet to name them or for that matter, yet to explain himself to the people as to why he did not seek the advice of the Attorney General or an opinion from the Supreme Court prior to bringing the nation to the brink of the edge.

Showing great endurance
True, the damage is considerable. This political tomfoolery has tarnished the country’s reputation, lost preciously needed financial resources at year end when that is needed the most, imperiled the nation’s long praised manner in which peaceful transfer of power took place through the exercise of the franchise and cast a pall of uncertainty over what is in store for us with the dawning of 2019.

Yet institutional strength and civil rebellion has risen like the proverbial phoenix from the ashes, some from most unlikely quarters at that. Institutions and individuals who could have crumbled under the pressure, quite unexpectedly, did not. Judges carried out their constitutional and statutory duties from the Supreme Court to the Magistrate’s Court with great endurance even as unprecedented pressure was brought to bear on them. This is far different to the day when one ex-Chief Justice was so brazen as to apologise for decisions handed down absolving politicians of grand corruption and another Chief Justice was more in the residence of the executive than in court.

Painfully accustomed to the edifice of an independent judiciary crumbling, bit by agonising bit, citizens have responded to the judicial fortitude now being illustrated with a measure of quiet relief. Reprimanded in some quarters for going to court along with others in seeking clarity on the gazette issued by the President dissolving Parliament, member of the Elections Commission Prof Ratnajeevan Hoole replied with force that he had not taken sides in the dispute between two political parties but that he would always take the side of the law.

Duty of the Elections Commission
In fact, those critics who question this perfectly proper seeking of judicial relief on his part would do well to remember the judicial caution administered by the Supreme Court to an Elections Commissioner that the Constitution assures him independence ‘so that he may fearlessly insist on due compliance with the law in regard to all aspects of elections – even, if necessary, by instituting appropriate legal proceedings in order to obtain judicial orders’ (Karunathilaka v Dayananda Dissanayake, 1999).

In that case, the Court found that Emergency Regulations issued on the basis of ‘national security’ having the effect of cancelling the date of the poll for Provincial Councils fixed by the Elections Commissioner at the time were not authorised by law or a valid exercise of power as there was no known threat to national security, public order, etc. The acquiescence of the Elections Commissioner in this action by the executive found little favour with the Court, Justice MDH Fernando going so far as to say that ‘the material available to this Court indicates that he made no effort to ascertain the legal position, or to have recourse to legal remedies.‘

That said, politicians engaging in several hasty utterances on the ongoing case before the Supreme Court and media reporting the same must also be far more cautious. In a case eerily similar to this, in which a provincial correspondent of the ‘Divaina’ had reported an opposition parliamentarian (when the presidential election petition was being heard), saying that ‘the petition had already been proved and if the petitioner did not win her case, it would be the end of justice” was found to have committed contempt. The argument that there was no intention to prejudice the outcome of the case and that the speech in question was solely political was not accepted (Re Garumunige Tilakaratne, 1991).

Eclectic range of resistance
Meanwhile, Speaker Karu Jayasuriya and the police of the Sri Lanka Parliament bore with exemplar dignity, all the vulgar abuse and objects hurled at their heads by chillie-water throwing pro-Rajapaksa parliamentarians who disgraced the House. Amusingly, after weeks of President Sirisena’s Sri Lanka Freedom Party (SLFP) and former President Mahinda Rajapaksa’s Pohottuwa party (SLPP) maligning the Speaker through slavishly adoring electronic media channels, the Speaker was cajoled by the SLFP to meet the President and thereafter (presidentially) ‘appreciated’ for those efforts.

Institutional strength was manifested elsewhere as well. Undeterred by political threats, officers of the Criminal Investigation Department proceeded stoically with investigations into killings and disappearances during the Rajapaksa decade resulting in the netting of a high- worth Chief of Defence Staff (CDS). Thus the range of resistance was eclectic. Quiet relief is occasioned. These are incremental steps to rejuvenation of the democratic process that must be rightly noted.

Notably moreover, separating themselves from the messiness of one political crook calling out another political crook, Sri Lankan citizens told the political establishment off in no no uncertain terms. It is a safe bet that none, least of all those who precipitated this chaos, would have bargained for this robust reaction. As Sri Lankan women marched through heavy, lashing rains before the Presidential Secretariat this week demanding that the President reconsider his actions, it was a powerfully visual symbol of anger in the face of political chicanery. As young artistes refused to accept awards from two ‘Ministers’ when they came to the stage at a national event with the national clad ‘worthies’ at a loss as to how to react and only able to grin foolishly in the face of this palpable insult, this was civil resistance in its most evocative form.

The link between the Constitution and democracy
In the final analysis and to put the matter simply, the link between the Constitution and democracy are the citizens. No politician can be expected not to ‘tinker’ with the constitutional text. Some do it with flair and aplomb as what happened in 1972 (yes, even by the so-called great socialist brains of the day who pulverised the Public Service Commission and the Judicial Service Commission) and in 1978 when the task of ‘constitutionally engineering’ a monolithic Executive Presidency was accomplished.

Others do it far more clumsily and with an appalling lack of foresight as what happened in 2015. But ultimately the protector of the Constitution is the people. And during the last month, we saw the hesitant beginnings of that process.

That by itself, should not be taken lightly.

This story was originally published by The Sunday Times, Sri Lanka

A common view held by many across the Commonwealth that Sri Lanka holds out a beacon of hope to the world in reversing the tide of authoritarianism underscores darker and more complex realities.

Journalists being briefed on the Right to Information Act

Two years later, the formidable challenges before us are very clear. During the previous decade, the abuse of power had been unprecedented, even when assessed against the country’s turbulent post-independence history after British colonial fetters were shaken off in 1948. Ordinary law and order had deteriorated to abysmal depths. State, economic and military powers were concentrated in the office of the Executive President. Corruption on the part of a ruling family cabal was rampant and ugly. Shaky at its best, the scales of the State tilted dangerously towards raw, naked authoritarianism. Editors and journalists were assassinated, beaten up and threatened. A decades-long secessionist war fought by the LTTE in the Northern peninsula was brought to a bloody end in 2009 but even after, terror continued to stalk the land.

Yet the stage for this departure from the democratic path had been set quite a while ago. Prolonged ethnic conflict and more sporadic but equally violent clashes between the majority Sinhalese government and rebellious Sinhalese youth in the South had paved the way for emergency law to become the norm. Checks and balances once holding arbitrary executive discretion in check became weaker. Under the Kumaratunga Presidency, a Supreme Court headed by her handpicked Chief Justice in 1999 became politicised with severe adverse impact on a once revered institution. Attacks on critical journalists waxed and waned with criminal defamation law being used to stifle dissenters until a vigorous media-led campaign resulted in its repeal.

So to many, the excesses of the Rajapaksa Presidency was a natural – and logical – culmination of what had preceded. Regardless, a restive if not angry populace was ripe for change when, following a surprise announcement of a premature Presidential election, Rajapaksa’s onetime Health Minister Maithripala Sirisena deserted his party leader and contested the elections with the support of Ranil Wickremesinghe, leader of the (then) opposition United National Party (UNP) after months of covert planning. It was an explosive electoral challenge in the best traditions of excitable party politics, catching the imagination and hope of Sri Lankan citizens who voted for the imprudent challenger. But the 2015 reformist agenda of the Sirisena-Wickremesinghe coalition is now facing grave internal subversion by forces that were very much part of the earlier anti-democratic establishment.

Great expectations; the Government’s reform agenda
One major thrust of reform concerned the restoration of the Rule of Law including the independence of the judiciary, the enactment of a Right to Information law and a Contempt of Court Act, the broad-basing of state-owned media among a host of other pending media law reforms. The other equally imperative focus was on state accountability for war time abuses premised on a consensus resolution on Sri Lanka adopted at the United Nations Human Rights Council.

However, progress has been faltering. Indeed, in some respects, there is regression. For example, the Government promised to repeal or reform the Prevention of Terrorism Act (PTA) under which journalists and activists had been routinely imprisoned. But now, a draft Counter-Terror Act (CTA), conceived in secret and running to more than fifty pages, has far more terrifying potential to restrict civil liberties than the PTA.

Where accountability is concerned, little of significance has happened apart from an Office of Missing Persons which remains yet inactivated. Similar dysfunction affects a Victim and Witness Protection Authority. In addition, hawkish elements within the Government are denying the right of immediate legal counsel to a suspect upon being arrested. Cases relating to the killings and beatings of journalists are yet pending.

Emblematic cases of gross human rights abuses against Tamil civilians under the previous regime suffer a similar fate. Absent sufficient pressure from civil society, the members of which have now been co-opted in great part into ad hoc task forces, punishing perpetrators through a radically reformed criminal justice system has been replaced by a spluttering Colombo-centered transitional justice process. This has been an early victim of the huge gap between what the Government promised and what it can actually deliver. Ambitious constitutional reform plans are similarly bedevilled. Corruption investigations into the near-bankrupting of the state coffers by the Rajapaksas have also stalled. Emboldened, the former President’s supporters have become increasingly more vociferous.

Encouraging use of RTI across the country
The one exception to this sad litany of non-performance is that on June 23, 2016, Parliament unanimously passed the Right to Information (RTI) Act. This was a result of persistent advocacy for over one and a half decades by editors, lawyers, media activists and civil society activists. A key pivot thereto was the 1998 Colombo Declaration on Media Freedom and Social Responsibility, which focused on RTI as a legislative imperative. Earlier, a Prime Ministerial committee had drafted the 2004 Freedom of Information (FOI) Bill which was approved by the Cabinet. However the premature dissolution of Parliament resulted in the 2004 Bill being discarded. Some unsuccessful revivals were attempted in later years, one such effort being notably by the present Speaker of Parliament Karu Jayasuriya then an opposition parliamentarian. But the Bill was re-activated as a template only in 2015 with the change of regime. Following sleepless days of hectic drafting and after public consultations, the revised version now named the Right to Information (RTI) Bill was approved by the Cabinet.

The Bill passed the test of legal challenge before the Supreme Court subject to certain modifications. To the surprise of those anticipating vigorous opposition on the floor of the House, it was passed with nary an opposing vote. As a member of both drafting committees in 2004 and 2015/2016, this was a rare day of rejoicing for me. Some months ago, a constitutional amendment had also enshrined the right of access to information. RTI was therefore backed by two supports; one, constitutional and the other statutory. That said, the fact that the constitutional restrictions (drafted differently to the statutory process) were somewhat broader in scope did give rise to unease. Nonetheless, there was much to be pleased about.

Since the Act and its Regulations with the Rules of the Commission on Fees and Appeals were operationalised on February 3, Sri Lanka has been ranked globally as having the third best RTI regime. No state agency is exempted from its reach unlike other information laws in the region. For the past two months, the use of RTI has been quite diverse and vigorous. This is a positive factor even though I cannot comment on specific cases.

Will RTI be an exception to a discouraging pattern of practically ineffectual good laws in Sri Lanka? Will it radically transform the culture of secrecy that holds the political and public service establishment in an iron grip? Answering these questions require prophetic ability. But unlike other laws which depend on dysfunctional state institutions, RTI can be directly used by citizens to provoke, needle and demand accountability from government and non-government entities. Early signs of its enthusiastic use are encouraging.

Conclusion
Ambitious reform plans of Sri Lanka’s coalition leadership have been slowly collapsing into disarray. True, citizens now live free from the threat of enforced disappearances and blatant misuse of power. Moreover, there is freedom of public debate which was once a luxury. Nonetheless, as has been repeatedly emphasised in my weekly column to the Sunday Times, Colombo, the coalition Government’s incessant refrain that ‘things are not bad as they once were’, is no answer. Setting the bar of comparison based on the previous regime is akin to no standard at all.

And freedom of expression is of limited use when structures of state power remain impervious. In addition, increased criticism appears to be having a bitter impact. The Government has vowed to bring in a regulatory framework for print, electronic and online media. While media professionalism has deteriorated badly, mostly due to journalists being bludgeoned literally and metaphorically in the past, government regulation is unquestionably not the solution to that problem. Cloaked in the deceptively misleading language of ‘independent regulation’ such innocuous experiments are often twisted to political advantage.

Some in the Government have asserted that RTI is a quid pro quo; in other words, as RTI has been ‘given’ to the media, it should ‘submit’ to the proposed regulatory scheme. This argument suffers from a fundamental misconception. RTI is not a privilege to be bestowed at the magnanimity of politicians. Rather it is a people’s right (not limited to the media). Any suggestion of a quid pro quo is unfortunate.

In 2015, democratic change-makers were ordinary citizens from far flung corners of the land who reacted with powerful anger against state-sponsored racism, chauvinism and corruption. But this critical constituency of reform is being eroded day by day. That is regrettable for Sri Lanka’s people, for the Government which once promised much and most profoundly, for those working for genuine systemic change.

(The writer serves as a Commissioner on Sri Lanka’s RTI Commission as the nominee of the organisations of editors and publishers. The views expressed are strictly in her personal capacity. This is an edited excerpt of a paper discussed at conference sessions on ‘The Commonwealth and Challenges to Media Freedom’ hosted by the Institute of Commonwealth Studies (ICwS), April 4th 2017.)

This story was originally published by The Sunday Times, Sri Lanka