The Constitutional Implications of the Easter Sunday Terror Attack

Featured image: St. Sebastian’s Church in Katuwapitiya, Negombo, remains closed off under heavy military watch as clearance operations continue. The blue tarpaulin has been placed over the section of the roof damaged in the blast. Photo by Amalini De Sayrah.

ASANGA WELIKALA-04/23/2019

Sri Lanka experienced its worst terrorist attack since the end of the war on 21 April 2019. The country is still reeling from the scale and lethality of the multiple explosions, and there is no clarity yet as to the perpetrators and their aims. But what is emerging piecemeal in the aftermath of the attack is a picture of quite incredible incompetence and negligence on the part of those vested with the responsibility for the safety and security of citizens (and indeed, our guests) at the highest levels of the state. The questions that arise inevitably as to who is responsible and accountable, in turn raise some major constitutional issues.

Security is the first and foremost responsibility of the state, the basis on which it is given the monopoly of legitimate violence within its territory. When it comes to the accretion of discretionary powers and the evasion of scrutiny – not to mention self-aggrandising security measures for themselves – Sri Lankan politicians are unusually adept at invoking national security as a blanket justification. By the same token, then, when a serious lapse of security has taken place as it did last Sunday, we are entitled to use the same standard of importance given to national security in order to hold those responsible for the lapse accountable.

Accountability is most central value in a constitutional democracy, the feature that distinguishes it from every other model of government. Accountability not only requires that power is limited, confined, structured, and that its exercise is checked and balanced, but also that both governors and governed subscribe to a shared understanding that power is legitimately exercised only when it is exercised legally with reason, caution, responsibility, deliberation, prudence, restraint, tolerance, and proportion. A state that is – or aspires to be – a constitutional democracy designs all its institutions and procedures in order to ensure that those who are temporarily entrusted with the powers of the state to be used for the furtherance of the public good are accountable. The government is accountable on a daily basis to a legislature of elected representatives, to the courts, and periodically to the people themselves at elections.

In Sri Lanka, we have not always succeeded in designing institutions that meet these ideals of constitutional democracy, and even more frequently, we elect political representatives who display little understanding of these values and even less commitment to their observance. Nevertheless, on occasion we do succeed in sending a message to the political class and ensuring some reforms to meet our demand for accountable and constitutional government. One such occasion was in 2015, when an administration more than usually contemptuous of constitutional democracy was sent home by the electorate, which also simultaneously mandated fundamental constitutional reforms to ensure the realisation of democratic values. The result was the Nineteenth Amendment to the Constitution (2015), which substantially reconfigured the political executive of the state.

The new structure of the political executive requires a directly elected fixed term President to work with a Prime Minister and a Cabinet of Ministers chosen from and responsible to Parliament. The logic of the system is rooted in a model of executive power in which power is shared between the President and the Prime Minister and Cabinet. It follows that the Constitution expects these two centres of power to work in unity, even when the electoral basis of the President’s and the Prime Minister’s powers derive from rival sources. Individuals elected to these two offices therefore must be capable of working together regardless of personal, party, or ideological differences. If it is not to become a source of conflict and dysfunction, this model demands maturity, intelligence, and a deep understanding of constitutional democracy on the part of the President and Prime Minister, so as to be able to work together in the public interest and not use their offices to indulge in personal rivalries.

This is the model, but the practice departed from it spectacularly in October 2018, when the President launched what is known in Latin America and Africa as an autogolpe, or self-coup. By trying to subvert his own government and attempting to dissolve Parliament illegally, the President betrayed his mandate and the trust of his electorate, and undid a great deal of the constitutional progress made since his election. Fortunately, the very egregiousness of his actions acted as the impetus for a legislative, judicial, and popular fightback that saw the defeat of the coup attempt in December. However, while the institutional checks during the coup proved resilient enough after the reinforcements introduced by the Nineteenth Amendment, and citizens showed an unprecedented willingness to stand up for democracy, the unreformed political culture of the power elites demonstrated its weakness when the President was allowed to completely escape political and legal accountability for his otherwise impeachable actions.

The President, ex officio the Commander-in-Chief, thus remains the Minister of Defence as well as the Minister of Law and Order. The latter ministry was in fact brought under the presidency after the coup crisis in December 2018. Even though the Prime Minister apparently acquiesced in the allocation of the Ministry of Law and Order to the President, this has been legally questionable given that the Constitution by express words only contemplates ministries falling under the subjects of Defence, Mahaweli Development, and the Environment as being assignable to the President. Notwithstanding that, the President was the minister in charge of both defence as well as law and order on Easter Sunday, and as such, all the armed forces, auxiliary forces, civil and military intelligence services, and the Police Department came within his purview. The President also chairs the National Security Council (NSC). On Sunday morning when the attack took place, the President was overseas on what appears to be a private visit.

In a press conference on Sunday evening, the Prime Minister noted that while there was prior information about the attacks, he and other relevant Ministers had not been made officially aware of it. In a Cabinet press briefing on Monday afternoon, the Cabinet spokesman and other Ministers were more detailed and explicit. The gist of the information at the briefing telecast live was that there had been several intelligence warnings about the high possibility of an attack of a very similar nature, that these warnings had come in days and even hours prior to the attacks, and that the Inspector General of Police had been specifically informed of the threat. It was moreover revealed that military and civil security command and coordination through and outwith the NSC had been monopolised by the President through the two relevant ministries. The President had not deigned to appoint an acting Minister for either of the portfolios before he travelled overseas, and neither had he appointed an Officer Administering the Government, usually and logically the Prime Minister in the framework of the 1978 Constitution, for the duration of his absence from the country. Shockingly, it also emerged that the Prime Minister and the Minister of State for Defence had been excluded from meetings of the NSC since October, with even the times and dates of meetings held secret to prevent them from attending. In short, the entire set of governmental levers we have to detect, apprehend, prevent, or combat the threat of terrorism is in the jealously guarded hands of the President, and shared with no other senior member of the political executive.

Individuals hold ministerial office not merely to carry out the executive functions of a ministry but also to be accountable for all the activities of that ministry, including acts and omissions of officials and agents that the minister may not have personally undertaken. A minister is accordingly entitled to take credit for the achievements of a ministry, but the inescapable flip side of this coin is that the minister is there to carry the can when things go wrong. In the face of parliamentary or judicial scrutiny, the minister takes official responsibility and is required to resign when the lapse or mistake or wrongdoing is especially serious. The President is subject to all these conventions of constitutional democracy when he assigns ministries to himself, and all the more so when he has chosen to run those ministries as if they were his personal fiefdom and deliberately excluded the involvement of the Cabinet.

From such facts as are available in the public domain, it seems reasonably clear that there was enough evidence and information to have done something about the perpetrators of the Easter Sunday attacks before they could inflict their diabolical carnage on the country. That such action was not taken means there was a security breach. In a constitutional democracy, there must be accountability for such lapses. In the light of the circumstances outlined above, it is clear that it is the President who is responsible and who must take responsibility. If he does not, as is likely given the man’s track record, then he must be made to take responsibility. This task lies firmly in the hands of Parliament. From questioning the President, to a Select Committee inquiry, and all way through to a formal process of impeachment, our Constitution entrusts Parliament with holding the executive to account. Parliament did not fail the people during the coup crisis of 2018 and it must not do so now.

While the President’s conduct is both lamentable and culpable, it does not exonerate the Cabinet, and in particular the Prime Minister, from blame. If the Prime Minister pressed home the principle of the primacy of office over personality and understood the dangers of not doing so in matters relating to national security, there were steps that could have been taken to ensure participation in the NSC, and going public if that was thwarted. There was no need whatsoever to submit to the President’s demand for the Law and Order Ministry, especially when he had attracted such widespread opprobrium for undermining the Constitution and the Rule of Law by instigating a constitutional coup. By complacently going along with the President’s unreasonable and irresponsible behaviour – when citizens who had fought for the preservation of constitutional democracy instead demanded accountability – the Prime Minister cannot escape the taint of incompetence and negligence after hundreds of people have been killed and maimed. The Prime Minister was conspicuous in the lack of interest he showed in pressing for the constitutional accountability of the President following the 2018 crisis. In choosing this path, presumably in the pursuit of some other strategic or tactical political advantage, the Prime Minister cannot now hope to pin the blame exclusively on the President.

The upshot is an unsavoury situation in which a besieged country imploring statesmanship from its political elite is saddled with a weak and divided leadership that has no understanding of the constitutional tenets underpinning the republic. It is to be hoped that the law enforcement machinery will prove robust enough to withstand the strains of the attack and its aftershocks. But the events of Easter Sunday 2019 will not go down as a moment in which Sri Lanka showcased the vigour of its constitutional democracy in the face of adversity.