Columns - FOCUS On Rights

Correcting Sri Lanka's democratic deficit

By Kishali Pinto Jayawardene

A mere call for cohesive national unity is just words. Let us recognise the essentials first. Sri Lanka must not only respect the Rule of Law but must also be seen to be respecting the Rule of Law. In particular, the independence of Sri Lanka's judiciary must not undermined by making judges depend on political patronage for promotions and appointments. Without resorting to ad hoc Commissions of Inquiry (reconciliation or otherwise) which is all eye wash, strong and capable Commissioners must be appointed to an independent Human Rights Commission. We do not need politically influenced appointees or virtual geriatrics who, in the worst sense of the term, do not know whether they are coming or going. Arriving at political solutions for what is quaintly termed as the 'national question' is possible only within this overall framework of respect for the Rule of Law and not in hypocritical isolation.

Constructive engagement needed
Let us also disabuse ourselves from some of our familiar misapprehensions. A greater part of the Western hemisphere is not out to 'get' Sri Lanka. True, there are pro LTTE lobbies which have consolidated themselves for the better part of the past decades in the Western capitals and which wield not inconsiderable influence on legislators in those countries. And as much as there are bad judges, unprofessional journalists and corrupt politicians, there are also international and national interest groups which may, at the best, be insensitive to local dynamics in their interventions or, at the worst, may be subversive.

That said, there are also genuinely committed interventionist groups whose engagement with this country is important. The best response to these various interventions is not through badmouthing each and every critic who points to deficiencies in the domestic systems. Instead, it is by soberly evaluating those deficiencies and correcting them through public consultation, compromise and acceptance. At least a start must be made, even if it is acknowledged that miracles may not be possible one year after the war has ended.

But the way forward is certainly not by engaging in constitutional reforms in the dark, by tossing even existing constitutional safeguards against executive abuse of power overboard on a flimsy argument that these safeguards are flawed, by demolishing the time limits for election to the Executive Presidency and by vindictively pursuing political vendettas against its opponents. It is also not by a raucous call to arms against the United Nations. This is the way that only a rogue nation will behave. Why should we be reduced to such a pitiable if not contemptible state?

The limits of an argument based on national sovereignty
Last week's column unequivocally made the point that national sovereignty has nothing whatsoever to do with the EU GSP Plus issue. The logic is basic and deserves some further elucidation. The EU is not asking to intervene in Sri Lanka. On the contrary, it is we who are asking for a trade privilege from the EU. On that basis, if the EU prescribes conditions on which this trade privilege may be granted which we find objectionable, we may politely ask the EU to take its concession elsewhere. The question of national sovereignty simply does not arise.

Then again, the argument that requesting the implementation of the 17th Amendment to the Constitution amounts to interfering with the internal legal system of a country contains one major flaw. The GSP Plus privilege is conditional upon Sri Lanka's conformity to international conventions that we have agreed to abide by. Central to these treaties is the availability of an effective (meaning independent) legal remedy for wrongs done to persons, as for example as contained in Article 2 of the International Covenant on Civil and Political Rights (ICCPR). However, where such a remedy is not available due to unconstitutional actions of a government which results in national legal institutions, including the judiciary, being rendered politically dependant, then there is a denial of an effective remedy. This is where the problem of non conformity arises.

Statutory reflection of a judicial position
The objection raised by the government that the 'wish list' of the 15 conditions laid down by the EU will require a longer time frame to implement. This is indeed true. However, what is being asked for is a serious commitment in respect of these conditions. Is commitment to at least some of these conditions, which may well form a basis for further discussions, so impossible?

One of these conditions relate to the repeal of ouster clauses, (shutting out judicial review in respect of certain actions of public officials), in the emergency statutes. It is argued that this will cause an upheaval. But as any public lawyer worth his salt should know, the Supreme Court has anyway, through numerous decisions, (in the pre 1999 period) ruled these ouster clauses unconstitutional in respect of the Public Security Ordinance. What is being asked for is a statutory reflection of these decisions so as to bring the domestic law closer to line with international law. What is so problematic about this? Surely is it not high time that this country returns to the normal criminal procedure law after decades of emergency?

Citizens' sovereignty trumping state sovereignty
As contrasted to the intellectual pretenders who strut on the national stage indulging in empty rhetoric, one of Sri Lanka's most respected jurists, the late Justice Mark Fernando once concisely explained as to why the guaranteeing of rights in international treaties only uphold citizens' sovereignty which trumps state sovereignty every time (see the Sri Lanka Journal of International Law, Volume 16, Faculty of Law, University of Colombo, 2004). He was referring to the ICCPR rights in general and the Views of the United Nations Human Rights Committee (UNHRC) in particular. Earlier we had international standards brought into Sri Lankan law through careful and reasoned judicial incorporation. However, this was all undercut by the 2006 Singarasa judgment handed down by former Chief Justice Sarath Silva which casually dismissed these Views as mere flotsam and jetsam.

It is essentially from this decision that questions with Sri Lanka's democratic deficit in respect of conformity with international treaty obligations initially arose. This now remains at the core of the EU GSP Plus controversy along with non conformity to our own Constitution.

Forget about the EU, forget about the UN. First and foremost, we need to correct this deficit for the sake of this country without finger pointing elsewhere. At least, the first steps need to be taken in this regard.

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