| by Kishali Pinto Jayawardene
( February 12, Colombo, Sri Lanka Guardian) In the morass of confusion worse compounded that Sri Lanka currently finds itself in regarding the implementation of the recommendations of the Lessons Learnt and Reconciliation Commission (LLRC), it is important to reiterate and underscore certain valid truths.
The nature of Sri Lanka’s accountability problem
As said previously in these column spaces, carrying out the LLRC’s recommendations must be the first basic step that the government should take in order to indicate its bona fides. The government may find its fundamentally undemocratic power structures in total disarray if these recommendations are implemented. But this is not a relevant factor. If the government is not seen to be abiding by its duty even in regard to the LLRC, then surely it must take the consequences for its non-action. It cannot blame Western conspiracies for its own failures.
That said, the LLRC recommendations are certainly not the end of the story. Rather, as the past and certainly the present has shown us, the nature of Sri Lanka’s accountability problem is directly traceable to the omnipotence accorded to the Executive Presidency by the 1978 Constitution.
This is the core constitutional issue, the understanding of which is crucial in contextualizing the accountability of the Sri Lankan State towards its citizens. This core issue has a direct bearing on the violations said to have occurred during the final stages of the war between government forces and the Liberation Tigers of Tamil Eelam (LTTE) in the North and East.
When the head of the executive or the elected President is effectively placed above the law by Article 35(1) of the Constitution and therefore cannot be called to account even in respect of grievous rights violations, it is academic to talk of accountability or devolution, 13th Amendment plus or minus as the case may be. Whether for Sinhalese, Tamils, Muslims and others, this constitutional bar has been primary to the denial of accountability in decades of serious human rights violations.
This is so in times of emergency as well as in normal times. It is undoubtedly ironic but not surprising that an Executive Presidency, conceived to be a safety bar for the minorities in the framing of the Constitution, would have proved to be the most dangerous threat to the democratic nature of the Sri Lankan State.
Failed efforts to limit a constitutional monstrosity
To be quite clear, this is a critique not limited to a particular political period though it has been aggravated beyond the point of no return in recent times. The growth of a monstrous Executive Presidency has been very much in the making. All efforts to restrain it, including by the judiciary, have failed. When it was so bold as to directly challenge the executive, the Supreme Court did attempt to limit this constitutional barrier. In several cases for example, the Court directed that this bar does not apply after a President has left office and further, that subordinate officers, as for example, an Inspector General of Police or a Commissioner of Elections, cannot use the immunity principle to shield himself/herself from responsibility for unconstitutional actions. However, these efforts, limited as they were to the courage of individual judges acting on principle rather than in subservience to petty politics, were unsuccessful in its long term impact.
This impotence was strikingly seen in respect of the executive bypassing of the 17th Amendment to the Constitution (2001). Judicial reluctance to intervene was evidenced when former President Chandrika Kumaratunga brushed aside her constitutionally duty of appointment of the Chairman of the Elections Commission as nominated by the Constitutional Council (CC) under the 17th Amendment.
As we know, in the year 2006, her successor President Mahinda Rajapaksa openly declined to make appointments to the CC despite nominations being sent to him by the relevant bodies and political parties and the courts were powerless to intervene. The passing of the 18th Amendment which combined the demolition of the 17th Amendment with the abolition of Presidential time limits merely sealed this process despite the surprise of some who professed to be outraged by this development. The question arises therefore, were those who were surprised and outraged at the 18th Amendment, sleeping when consistently successful attacks were made on the Rule of Law in the previous years?
Alarming even the routinely cynical
Though the LLRC studiously avoided mention of the 18th Amendment or indeed of the nature of the Executive Presidency, this is the proverbial elephant in the room. No honest critique of this country’s Rule of Law crisis can afford to ignore this fact. Post 2005 and in particular post 2010, each and every democratic regression is linked to this core constitutional problem. Moving out the office of the Attorney General from the Ministry of Justice where it traditionally belonged, to the Presidential Secretariat post 2010 was another manifestation of this same problem. Each of these actions, taken in isolation, may not have evoked much agitation on the part of the non-discerning but the sums of its parts taken together with the evident deterioration of law and order have alarmed even the routinely cynical in this country.
Some in the legal profession have taken exception to the shifting of certain courts now located in Hulfsdorp to Colombo’s suburbs and have demonstrated against this. Yet, when justice is denied, does it quite matter where exactly courts buildings are located? Soon after retirement, the late Mr K.C. Kamalasabeyson pointed to the building housing a particular court and said very aptly that ‘this is just another building for me.’ If this thought was voiced by someone who gave his professional life to the law, what would be the reactions of ordinary men and women?
Unacceptable subordination of the police role
The negation of the Rule of Law and justice processes, including that of the criminal justice system is an obvious result. Locating the Department of the Police under the Ministry of Defence has been a specific point of discussion by the LLRC which recommended that it should be delinked.
This recommendation is nothing new. In 2008, the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston observed that requiring the Inspector General of Police to report to the Minister of Defence is an unacceptable ‘subordination’ of the role of the police (Follow-up Recommendations) (2008), A/HRC/8/3/Add.3, 14 May 2008, Eighth session of the Human Rights Council).
Sri Lankan analysts and activists had been also calling for this reform for decades. But to implement the LLRC’s recommndation in this regard would require an abandonment by this government of an essential layer of its power base. The odds are that it cannot afford to do so. In that case and again, it should be held accountable for its failure.
A ludicrous and unpalatable reality
Venturing beyond the LLRC’s recommendations as we must, it needs to be said that the office of the Executive Presidency has become far too heavy for Sri Lanka’s democratic systems to shoulder. It is no wonder that these systems have crumbled bit by bit till all that we would have are the shadow of democratic rule. The virtual paralysis of administration, in many cases of the judiciary and indeed of the very process of governance has been due to this.
From chaos over the use of vegetable crates to the strikes of academics, no problem can be solved without the intervention of the office of the President. This is a ludicrous situation in every sense of the word. Perhaps one day, we will decide to address this unpalatable reality head on.