Putting the 18th Amendment at the core of the debate

Sunday, November 02, 2014

For decades, advocates working on Sri Lanka’s deficit of justice had to cope with manifest reluctance on the part of many well intentioned minds to question and critique the national legal process. This reluctance was perhaps understandable. Complex questions of law were at issue. Then again, conventional wisdom assumed that Sri Lanka’s legal institution, with all its cosmetic trappings of a functional adversary system worked, if not all the time, then at least some of the time.

A calamitous collapse
So constitutional checks and balances were assumed to be in proper order and departures thereof were treated with a casual shrug of the shoulder. For example, the deliberate undermining of the 17th Amendment to the Constitution by the Government and the opposition after just three years of its enactment occasioned scarcely a whimper at the time.

The point was not that the 17th Amendment was perfect. Yet this amendment constituted the one rational check on extraordinarily wide Presidential powers mandated by the 1978 Constitution. As such, the national effort should have been to fine-tune its content rather than to belittle it, paving the way for the diabolical 18th Amendment to be approved by a compliant Supreme Court presided over by Justice Shirani Bandaranayake.

Ironically Justice Bandaranayake later became a victim of this same political mala fides when, as Sri Lanka’s 43rd Chief Justice, she was thrown out of office with less ceremony than that afforded to a common thief. Juxtaposed with the ending of war in 2009 amidst the anguish of Tamil civilians caught in conflict, this set the stage for a calamitous collapse of the domestic process of justice under the Rajapaksa Presidency.

Not impressed with government defences
This week, the United Nations Human Rights Committee’s Concluding Observations on Sri Lanka’s Fifth Period Report constitutes a refreshing change from this general reluctance to critique the national legal process. Obviously not impressed by the shrill tone of the Government defences, the Committee’s Observations laid bare the reality in several important respects.

As this column has noted previously, the Committee should not be confused with the United Nations Human Rights Council before which a current investigation on Sri Lanka’s war time actions is being conducted by the Office of the United Nations High Commissioner for Human Rights. These are parallel procedures that take place quite independently of one another. In terms of the Committee’s functions, States are required to report to it periodically in regard to their compliance with the International Covenant on Civil and Political Rights (ICCPR). In an extension of this mandate and where a State party agrees to the Protocol to the ICCPR, the Committee also considers individual complaints submitted to it by aggrieved citizens. Sri Lanka had acceded to both these processes some time ago.

It is under the periodic reporting procedure that Sri Lanka’s report was considered last month. First, the Committee situated the repeal of the 18th Amendment and ensuring the independence of the judicial institution fairly and squarely at the core of Sri Lanka’s dysfunction. Crucially it recommended that Sri Lanka ensure a transparent and impartial process for appointments to the judiciary and other independent bodies. It asked that concrete measures be taken to ensure that judges are protected from improper influences, inducements, pressures, threats or interferences exerted by the executive and/or legislature. Secondly, it refused to believe that the withdrawal of the Emergency Regulations had resulted in an improved human rights climate given that the Prevention of Terrorism Act continues to be in place.

Exasperation with the Government’s lack of good faith
Thirdly, the Committee was unimpressed by the disingenuous if not facile explanation by state representatives that the Singarasa Case (2006, per ex-Chief Justice Sarath Silva’s ruing on the unconstitutionality of the Optional Protocol’s individual complaint procedure) was being ‘reviewed’ by the Supreme Court. There is a particular context to this issue. Individual communications had been filed by Sri Lankans from about 2000 onwards complaining that not only the law but also judicial action had violated rights.

The Government was asked by the Committee in response, to ensure that persons be tried without undue delay, that confessions of tortured detainees should not be used against them and that atrocities be properly investigated. Sri Lanka was also asked to enact a Contempt of Court law which would not allow for judicial abuse. Even by the most ludicrous stretch of the imagination, these were not recommendations that endangered the safety and security of the State. Rather, they enhanced the rights of citizens and put the judiciary on notice. But the views were pushed aside or glossed over.

And clearly piqued by being called to order, the Supreme Court declared in the Singarasa Case that Sri Lanka’s very act of accession itself to the Protocol was unconstitutional. Thus, the Committee’s exasperation at the lack of good faith on the part of the Government in remaining within the ambit of the treaty body procedure whilst violating it in spirit and substance was marked.

The slow building up of adverse pressure
The Government may scoff at these findings which it would see as not having any direct enforceable force. But this week’s Concluding Observations will contribute substantially to the body of critical opinion that is being steadily formed.

Notably, those who observed the Committee sessions would have seen that its Asian jurists were insistent questioners of the integrity of Sri Lanka’s constitutional process. Full implementation of the recommendations of the Lessons Learnt and Reconciliation Commission (LLRC) was emphasized. These are pointers to the fact that this Government’s best loved strategy of lies and bluster is no longer working.

The 18th Amendment which set the seal on a monarchic Executive President managed by one political family holding the reins of government and needless to say, the finances must be repealed. The Committee’s call in that regard must be welcomed. The slow restoration of constitutional equilibrium can only begin thereafter. For enlightened Sri Lankans, this bare minimum must surely be self-evident, without a doubt.