Morality and Constitutional talk



In our 'land like no other', the current crisis does not come as a surprise to discerning citizens. Numerous arguments are floated over the legality of the Constitution's authority, but the more fundamental question is about the nature of that authority. In the American context, an acute controversy raged before the outbreak of the Civil War. Competent law making bodies generally accepted that there is a higher law than the Constitution. The premise being that that there are two facets to a Constitution; a moral and a legal. Many who write in these columns have debated the legal point. In the legal sense it is a sad indictment on those who drafted these Acts to leave room for ambiguity and avoidable confusion, obviously seeking short-term advantage.

A constitution may be the foundation of law and order in a community, but mere law and order is not enough. But importantly, it must be good law and good order. When a bad government fails and fails miserably, and if all release valves are unavailable, a kind of rebellion is morally right. No doubt it is difficult to say when the rebellion is right and how much rebellion is right, but a modicum of it may be defensible nevertheless. When Abraham Lincoln was condemned for suspending the right to habeas corpus, an unconstitutional act, his reply to the critics was that if he had not broken the one small part of the Constitution the whole of the Union would have been in danger. He said, 'are all the laws but one go unexecuted, and the government itself go to pieces lest that one be violated’. His argument was that not all the articles of the Constitution, any more than all the sections of a law, are of equal value and importance. There are times that for moral reasons a small part of the Constitution may be violated for a higher morality.

Let me adduce few reasons for the higher im/morality in the current context. The 2015 regime change was orchestrated with foreign assistance, and the former US Secretary of State John Kerry confirmed the fact. Ever since, Sri Lanka was brought right into an international power game by becoming a pawn in the US- China power struggle. In the domestic front, the so-called Independent Commissions were compromised with cronies who had vested interests being appointed, seemingly by arbitrary fiat. Due process was abrogated many a time. Illegal and unethical behaviour to hide colossal scams that defrauded the public purse was commonplace. Appointing foreign nationals to handle monetary policy was unethical. Misinformation created distrust in the authenticity of the so-called voice of the State. Bribery and corruption laws were abused by selective application under the watch of the leaders. Manoeuvring Standing Orders of the Parliament miniaturized the law making process. The assets of the country were sold off without public assent, jeopardizing the nation’s security for all time. The country was allowed to be manipulated and harassed by foreign powers polarizing the people. The nation’s dignity was eroded by ministerial fiat at international forums with no public discussion ever. The gross abuse of public money was abysmal. The Speaker of the Parliament was made to behave improperly at most times, with no semblance of impartiality. In actual fact the dignity of the Parliament was ridiculed. The Constitution was amended 'on the run' with inconsistencies, and contradictions to boot. In sum, the moral authority of the Constitution was eroded from the standpoint of that great School of political theory, which bases its judgement of the proper extent of a government’s powers upon the rights man derived from natural law. When man is deprived of his rights and left only to appeal to heaven, that sufficient moment had arisen. The incumbent government had lost the trust bequeathed to them. That is the Higher law. The deputies had usurped the delegated sovereign right of the people. Someone lawfully decided that the moment had arrived.

It is farcical that even those who demand impartiality and objectivity in this instance have surrendered their integrity by being so obviously partisan. The Good Governance stalwarts see no fault with the millions squandered out of the public purse. Where were these stalwarts when parliament was dissolved to stymie the COPE discussions, Prime Ministers were deposed, Chief Justices were dismissed, all unconstitutionally/ immorally. The tedious reference to Good Governance cannot be only for the former President, whom we have already punished. That consistent lack of objectivity and impartiality is surely a breach of the integrity and honesty of an intellectual.

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