There’s been a lot of cheering after the Army captured Kilinochchi. I didn’t light any crackers, but if I had some, a few would be dedicated to the pundits who banked on the LTTE holding its so-called de facto capital, among them Kumar David and that busybody diplomat Robert Blake, a Mr. Know-All if ever there was one (read his interview in the Daily Mirror on January 1 and David’s piece on November 23 in the Sunday Lakbima News if you want a few laughs). One could add to this a US State Department missive on January 2, "urging Sri Lanka and Tamil Tigers to start negotiating"!

Kumar David, Robert Blake and Gordon Dugiud, then, are three clowns who will provide the laughs in these dismal times. ‘Dismal times, did you say?’ I hear people ask, citing ‘Kilinochchi’ and the imminent liberation of Mullaitivu. ‘Yes,’ I say, because I am thinking of ‘Post-Kilinochchi’ and ‘Post-LTTE’. I say ‘dismal’ because even if Prabhakaran and the LTTE committed mass suicide tomorrow and the entire Tamil population in the world unanimously said that they want Sri Lanka to remain a unitary state, there is one person who would still have a huge grievance. That person has a name. Citizen.

Alexis de Tocqueville said that in a democracy people get the government they deserve. I don’t agree with this statement and I will get back to why I don’t presently. This business of what we deserve and what we don’t made me twist de Tocqueville’s classic quote: ‘People get the judiciary they deserve’. And another ‘deserving’ quote came to mind, this one attributed to Benjamin Franklin: ‘They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety’. If I were to choose one over the other, I would go with Franklin and I will explain why.

There’s been a lot written lately about ‘tensions’ between the executive and judicial branches of the state. The bottom line in the matter is that even if we were to forget the individuals that currently hold the highest offices in these two vital arms of the state along with their respective personalities, capacities, idiosyncrasies and flaws, the very fact of the power they wield and the avenues available for transgression into territories beyond jurisdiction indicate fundamental constitutional error.

Constitutional flaws which take excessively from citizen are not the fault of the ‘people’ in the general sense. Perhaps those who gave J.R. Jayewardene’s UNP a five sixths majority in 1977 and thereby conferred the power to do the as-you-like-it with the constitution (and amendments thereafter) can be faulted. Not so those who reached 18 after July 22, 1977 and not so those yet unborn. They could do and can do very little to change things. They were merely born into a democracy framed in a constitution that makes correction virtually impossible. They do not deserve this constitution or this government. They didn’t (and neither did the ’77 voters) ask for an Executive Presidency, for example. They were not asked if it is ‘all ok’ for the Chief Justice to do what he does.

Is the citizen then blameless? I think not.

The Supreme Court has over the past several months made some very interesting if not controversial determinations. The Supreme Court has been booed (metaphorically) and cheered (literally). The same is true with respect to the President. It has, for the most part, been an ‘either/or’ proposition. It is as though appreciation of a particular act takes away the right to criticize another by the same individual. Thus, if someone salutes the President for having the courage, determination and absolute faith in victory with respect to the execution of the exercise to eliminate terrorism, then he/she is expected to or chooses to look the other way if/when the President does the ‘out of order’.

It is the same with the Chief Justice. If someone cheers him for determinations with respect to the Waters’ Edge case, the price of petrol, noise pollution etc, that someone is expected to remain silent when in some of these cases or others the Chief Justice sets dangerous precedent or is vindictive, self-seeking and/or selective in the dispensation of justice. Or else, that someone, referencing the point that was cheered, forgives any and all transgressions by the Chief Justice.

Let me refer to two determinations which illustrate the point. The Supreme Court in an unprecedented and (in my view at least) dangerous decision fixed the price of petrol. Naturally, many people cheered him for many would benefit directly. The Executive branch of the state chose to drag its feet in terms of implementing the determination. There were protests staged in Colombo. The walls of the city were plastered with posters screaming at the Executive, demanding compliance.

Then there was another determination, directing the Executive President to get moving on appointing the Constitutional Council. There was foot-dragging here as well. In fact the foot-dragging has continued. I haven’t seen any posters demanding compliance. I haven’t seen the opposition politicians organizing protests or, in the very least, crying foul. I wouldn’t expect politicians to of course for after all the full implementation of the 17th Amendment even with its obvious flaws would amount to conceding something to the citizen. I would have expected citizens to be more assertive here, though.

What this means is that we are undeserving, as per Franklin’s observation, of liberty or safety. We are the 21st Century version of the people of Hamlin. We cheer the Pied Piper when he does us a favour. We are destined to weep when he drowns our children in the swirling waters of power abuse, injustice and transgression into areas outside of jurisdiction. Yes, I am talking about the Executive and Judicial segments of the state, not only because it has happened but because it is constitutionally sanctioned and we are doing very little about it.