One Nation, One Law… By Whom?

By N Sathiya Moorthy

For a lawyer-politician par excellence, TNA’s Rajavarothiam Sampanthan have taken a very narrow ethnic posturing on BBS boss Gnanasara Thero being named to head the Presidential Task Force (PTF) on ‘One nation, one law’. Worse is the case of fellow-Tamil leader C V Wigneswaran, who is also a former Judge of the Supreme Court. Neither of them, nor any of the other critics of the Thero’s appointment has pointed to the most glaring of omissions.

That Gnanasara does not have any legal or constitutional background to be named to head what essentially is a panel whose works involves the complexities of law, society and the Constitution as none else does not seem to have occurred to any of them. And this is so in a nation that has no dearth of legal minds with a feel for the society and nation than any majoritarian agenda-setter is what is the most hurting aspect of the entire episode.

In the past, presidential commissions of value have always been headed by a retired judge of the Supreme Court or the high court, as the case may be. And all presidential commissions are deemed to do valuable work. This has been the considered practice in most democracies, on most occasions. That is also to make those commissions ab initio non-controversial and unbiased. A trained judicial mind is a repository of such qualities – which are also part-qualifications, though unwritten at times.

It was thus that presidential commissions on the ‘Easter blasts’ and on ‘war crimes’ came to be headed by retired judges of the higher courts of the land. There were two such commissions on the Easter blasts and both were headed by retired judges of the higher courts. The Paranagama Commission’s official name was different and it went into complaints about missing persons in the war. It was again headed by a judge, Justice Maxwell Paranagama.

Where incumbent Presidents chose non-legal minds to committees of such other kinds, the chosen leader especially was seen to be unbiased and un-predisposed. Thus, politicians, Mangala Moonesinghe and Tissa Vitharana were chosen to head all-party panels of one kind or the other, to recommend political solutions to the ‘ethnic issue’ at different points in time.

The late Moonesinghe was not only a leading parliamentarian. He was also a trained and successful lawyer, who understood the constitutional nuances. Minister Vitharana’s ideology and views, not all from across the political spectrum might have accepted. But none complained of political bias or personal bigotry in his conduct at any time.

It’s not so in the case of Gnanasara Thero. His views on the subject that the panel under his head is tasked to explore are too well known. There cannot be a known narrower view on the subject. If someone thought that his appointment is both the message and the task, a fait accompli, they cannot be faulted. The shoe is on the other foot.

Judicial challenge?

If the Tamil politicians have made them heard loud and clear, across the seas as well, their counterparts from the Muslim community have been conspicuous by their deafening silence. One noticeable exception is former minister Rishad Bathiudeen, who has been allegedly facing harassment at the hands of his one-time political mentors, now turned tormentors. It remains to be seen what especially the four SLMC parliamentarians who were elected on an anti-Rajapaksa agenda but are since siding with the government, have to say about Gota’s new initiative.

Of course, the Muslim clergy and societal organisations have expressed concern. But then, there are also members of the Muslim clergy and laymen on the panel – totalling four in 13. Who chose them for the panel and what are their views and/or instructions will be known, if at all, only when the panel begins submitting its monthly reports – and later, the final report by February-end – to the President.

If the Tamils protested too loudly, it was also because there was no Tamil member on the panel. According to reports in a section of the Tamil media, Minister Douglas Devananda from the SLT-North and former Uva Province Governor Senthil Thondaman, representing the Upcountry Tamils had taken it up at the ruling SLPP alliance meeting the other day, and President Gotabaya has suggested the nomination of three Tamil members on the Gnanasara panel.

Yet, it remains to be seen if the appointment of the Presidential Task Force (PTF) would not be challenged in the Supreme Court. The Centre for Policy Alternatives (CPA), which has been in the forefront of such legal battles on issues of public concern, among others in the field, has already criticised Gota’s choice of the panel-head.

It remains to be seen how much of the political thing would stick in legal and judicial terms, unless the court comes to the one-time conclusion for all times, prescribing some kind of a minimum qualification for such positions – like a working knowledge of the law, especially constitutional law, to be able to appreciate the multiple nuances. The question also remains to be settled if a person who had received presidential pardon be named to such high and important ‘public offices’, however temporary.

The Thero, as may be recalled, was sentenced to imprisonment, not for an ordinary crime, but for ‘contempt of court’. The offence proper may be civil in nature without blood-letting or theft or fraud, but the offence was committed against none other than the nation’s Judiciary.

For outgoing President Maithripala Sirisena to have granted presidential pardon to Gnanasara when still serving jail-term for the contempt, is as much questionable in law as it was done on the political front, if at all by a few. If there could be an exemption now, it could owe to the ‘law of limitations’, and nothing else.

Maybe, it could still be an occasion for the Supreme Court to decide if the President’s constitutional powers to grant ‘pardon’ to offenders facing death-sentence or serving a jail-term, and let them go scot-free is ‘subjective’ or it has to be ‘objective’. In neighbouring India, the world’s largest democracy, the Supreme Court held as far back as the eighties that the presidential powers in this regard have to be applied ‘objectively’. There is no case in it for the incumbent to pick and choose the beneficiaries. In short, it had to withstand judicial scrutiny, if challenged.

That was in the ‘Indira Gandhi assassination case’. If today, seven LTTE-linked assassins of Rajiv Gandhi are still serving prison-terms, it flows also from the Indian Executive, both at the Centre and the State of Tamil Nadu, remaining circumspect in the matter. This is so in spite of the fact that it was the Supreme Court that had converted the trial court’s death-sentence against all seven into one of life-imprisonment.

Of course, the Congress Centre at the time had compounded the death sentence of Nalini, who had given birth to a female child, while in prison, that too at the instance of Sonia Gandhi, Rajiv’s widow. There are those in India, who question the constitutional propriety of such a move as the law only expects the President/Governor to consider ‘mercy petitions’ only from the convicted and/or his/her next of kin.

Seen to be done…

As the Gazette notification on the appointment of the PTF said, “The task force is entrusted with the job to “make a study of the implementation of the concept ‘One Country, One Law’ within Sri Lanka and prepare a draft Act for the said purpose, to study the draft Acts and amendments that have already been prepared by the Ministry of Justice in relation to this subject and their appropriateness and if there are suitable amendments to submit proposal for the purpose and include them in such relevant draft as is deemed appropriate”.

According to the notification, this move will focus on the administration of justice, its implementation and protection under the law that should be fair and by all as set out in the Constitution of Sri Lanka. It also stated that this has been indicated under the fundamental rights therein, that no citizen should be discriminated against in the eye of law nor meted out special treatment on ground of nationality religion caste or any other grounds.

The notification also added that the implementation of this vision \would reflect the commitment to ensuring national and internationally recognised humanitarian values. Noble vision, yes, no doubt, but the taste of the pudding is (only) in the eating. Gnanasara’s appointment, after he has been known mostly for the street-attacks on the Muslim community, both in words and acts, has made a mockery of that vision itself.

If only an unbiased presidential probe of the kind had been ordered into the causes leading up to the ‘Easter blasts’ could be ensured, it would still identify Aluthgama-2014 as the birth-place. It was not a stray, one-off affair, but was preceded and followed by physical threats at the homes of Muslim families, including those in the very heart of the capital, Colombo. This is not to condone, leave alone justify, the blasts that is the 21st century bane of humanity as a whole.

Twin perceptions

Clearly, there was a political project to put the nations Muslim minority in the place after the elimination of the LTTE and with that the ‘Tamil ego’, purportedly, in the conclusive ‘Eelam War IV’ (2009). That owed to the non-vocalised twin-perceptions that ‘Sinhalas only have Sri Lanka, the Tamils, including Upcountry Tamils, and also Muslims, have elsewhere to go’, and that with war and Tamil exodus, the Muslims might now form the second largest ethnicity in the country’.

Looking back, Aluthgama was only the third stage, if not the last of a long drawn-out project aimed at ‘ethnic cleansing’, by whatever name called and whatever mode achieved. It began immediately after Independence, when in the same year, 1948, Upcountry Tamils of recent Indian origin were disenfranchised and also rendered ‘State-less’.

Once the Shastri-Sirimavo Pact (1964) ensured many, if not all Upcountry Tamils would go back to their parent-nation, India, if only to live a relative life of dignity and security than would have been then possible in this country, came the turn of the Sri Lankan Tamils. Rather, it was already on from the ‘Sinhala Only’ and the periodic physical attacks on the community, starting from the infamous one in Colombo’s ‘Galle Face Green’ in 1957.

No researcher, political or academic, has studied if the fear of being thrown out from the nation next and the attendant anxieties flowing from periodic physical assaults and continual taunting in schools and from public platforms, had motivated the Tamil youth to form self-defence groups, leading up to the monolith LTTE under a megalomaniac in Velupillai Prabhakaran. The dictum, ‘As you sow, so you reap’ was proved in the case of the Muslim backlash against Aluthgama and the rest, in the form of ‘Easter blasts’.

If someone thought the community’s protests would be organised in socio-political terms, and that would feed their own self-indulgence and electoral self-defence in the form of mobilising the Sinhala-Buddhist majoritarian segment one more time – though not for the last time – they were both right and woefully wrong. If nothing else, none of them provided for what tantamount to ‘lone wolf attacks’ of the Zahran-led Easter blasts kind.

Constitutional fraud?

None of it is aimed at defending or challenging the ‘One nation, one law’ theory. It is for another day, another occasion. The conclusion just now is even if the government’s initiative is noble and visionary – which needs to be analysed, still – it has begun with the wrong premise, that all is well as long as it takes some sting out of current criticism against the political leadership, and divert national attention, even if for a day.

But those woes of the nation and the society are one too many to be diverted by a momentary controversy of the PTF kind just now. There is still the pandemic-led economic recession, and the larger political controversies attending on the controversial importation of organic fertiliser of questionable quality from China, and an equally controversial energy deal with an American company, with only a Cabinet paper prepared/presented to the Cabinet, but ordered passed, without discussion – and possibly middle of the night.

If true and can be proved, as claimed by the allies of the ruling SLPP, it’s as much a ‘constitutional fraud’ in the true and responsible sense of the term, as the appointment of the good Thero to head the PTF on ‘One nation, one law’ is. The latter at least honoured the letter of the law, which does not prescribe any qualification for a member or leader of a PTF of the kind.

The former is worse. The constitutional dictum and the democratic practice is that Cabinet decisions follow open, free and unhindered discussions. And for this very reason, those decisions are deemed ‘collective’ and are collective and confidential – outside the purview of judicial review of any kind. But then that’s binding only when discussions have taken place. What if no discussion took place, as alleged, and yet the Cabinet decision is supposed to have been acquired after such discussion, or debate, and with the full knowledge of all ministers present and participating?

(The writer is Distinguished Fellow and Head-Chennai Initiative, Observer Research Foundation, the multi-disciplinary Indian public-policy think-tank, headquartered in New Delhi. email: sathiyam54@nsathiyamoorthy.com)

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