Friday, 31 January 2014 00:00
By Friday Forum
There has been, in recent times, public discussion in regard to whether our country is moving towards an authoritarianism that undermines democratic governance. The President, Ministers and Government spokespersons have consistently denied this allegation.
They refer in particular to the recent elections in three provinces as indicative of a functional and vibrant democracy responsive to the needs of the people. Infrastructure development that has taken place is also cited. The recently-concluded CHOGM hosted by Sri Lanka is considered an indication that Sri Lanka has achieved significant international stature as a country whose governance follows Commonwealth values.
These values as stated in the final CHOGM communiqué refer in particular to democracy, human rights, tolerance, freedom of expression, separation of powers, rule of law, good governance, and sustainable development. The question whether this conforms to reality deserves an objective assessment.
Rather than engaging in either assertions or denials of authoritarianism, we as citizens, and the Government, should take serious stock of significant current trends in governance, and evaluate whether there is truth in this allegation, and if so, what can be done to arrest it. The Friday Forum wishes to raise selected areas of concern which merit public scrutiny and discussion.
Our Constitution, international norms and standards, and Presidential power
It is often said in public statements that international bodies exceed their mandate in reviewing the governance situation in Sri Lanka, and that these norms and standards have been determined by western countries and are being used to undermine the sovereignty of our small country. We agree that there is no justification for a highly politicised and selective approach to the enforcement of human rights.
While the Government may protest such an approach, this is no justification for the Government to violate its own obligations under our Constitution and under international law to respect and promote human rights. Our Constitution in Chapter III guarantees and provides for the enforcement of human rights.
Sri Lanka is also bound by the norms and commitments of international human rights treaties that the State has ratified. Article 27(15) requires the Sri Lankan state to foster respect for international law and treaty obligations in dealings among nations. Equitable and inclusive development demands that economic growth and development activities do not result in a violation of these obligations under the Constitution and international law.
The President, in taking his oath of office, accepts that he will faithfully perform his duties and discharge his functions in accordance with the Constitution and the law (Article 32(1) and the Fourth Schedule to the Constitution). Our Constitution further says that he must do all such acts not being inconsistent with the Constitution or written law, as by international law, custom or usage he is required to do (Article 33 (f)). The popular perception that Presidential power under the Constitution is unlimited is incorrect.
Economic growth and an improvement of infrastructure cannot justify a violation of the obligations of good governance according to our Constitution and international law. ‘Equitable and inclusive development’ requires the Government to implement the civil and political, and social and economic and cultural, rights of the people. Allocation of financial resources for health and education is as important as resources for strengthening the criminal justice system. The indivisibility and interdependence of all these rights must be recognised in plans and policies on development. People’s participation is critical in setting priorities for social and economic change. There must be informed debate on official policies regarding use of national resources and financial allocations for different sectors.
Breakdown of law and order and political interference in the administration of criminal justice
The breakdown of law and order has been a source of public comment and concern for many months. Placing the Attorney General’s Department under the President’s office has eroded public confidence in the impartiality of criminal investigation and prosecutions without political interference. Impunity for violence against media personnel and human rights defenders has been raised nationally and internationally.
The cancellation of visas for foreign participants invited by the Bar Association to a meeting on the rule of law and democratic governance during CHOGM reinforces the perception that the Government will not tolerate critical comment on issues of public concern or protect those persons seeking to claim their right to freedom of speech and association.
The LLRC recommended significant changes in this sphere including the de-linking of the police from the Ministry of Defence. The recent solution of creating a new Ministry of Law and Order placed under the President, with a Secretary of this Ministry who is an ex military commander, does not follow recommendations of the LLRC, or address the issue of politicisation in enforcing the criminal law. The events in Weliweriya where the Police was replaced by the army and contributed to a violent suppression of a peaceful protest must surely be addressed as undermining the obligations of a Government in a democratic state to preserve law and order while protecting its citizens.
The recent proceedings to remove the Chief Justice highlight the need for significant amendments in relevant Constitutional provisions in order to ensure fairness and justice. The failure to make the necessary amendments to ensure a just and fair inquiry in impeachment proceedings against superior court judges undermines public confidence in the Government’s commitment to ensure the core values of judicial independence and integrity.
Our country has a solid jurisprudence on human rights created by distinguished judges who served on our Supreme Court, with the contribution of lawyers who were encouraged to litigate on behalf of victims of human rights violations. There are reliable reports from lawyers and litigants that it has now become increasingly difficult for citizens and lawyers to seek remedies in the courts even for alleged infringement of fundamental rights relating to torture and death in prison custody.
The 18th Amen-dment removed the term limit of the Presidency while preserving its immunity from legal action. It also did away with the independent public service commissions. This Amendment reinforced the concept of an all-powerful Executive Presidency, and has seriously undermined public administration at all levels. There is a popular perception even among bureaucrats that any administrative decision can be made with the approval of the President and the Cabinet, and that the laws of the land do not apply to such decision-making.
The perception that Constitutional norms and law and regulations can be disregarded is reflected in non-consultative policy making in key areas. This is seen for example in appointments to senior public service positions, including posts such as Government Agents in the north, which are filled by persons who are not from the Sri Lanka Administrative Service, but those with a military background. Many key diplomatic posts at all levels have been given to persons outside the service with political connections, thus undermining the concept of a professional public and foreign service selected through a competitive process from among qualified persons.
In areas such as environment and women’s rights, arbitrary decisions have been made with no accountability. An example is the recent regulation of the Ministry of Foreign Employment denying women with children the right to travel overseas for migrant work without proof of the arrangements made for their minor children. The plight of minor children is a tragic consequence of the failure of our economy over a long period of time to provide reasonable livelihood opportunities for low-income men and women.
Our Maintenance Act 1999 places a joint and shared parental obligation on both parents for the care of children. This policy decision appears to have been made on a Cabinet directive, which perceives women as the only persons responsible for parenting and childcare in the family. This policy undermines the equality clause (Article 12) in our Constitution, and the legislation on family support. It also undermines Sri Lanka’s commitments under the Women’s Convention (CEDAW), and Goal 3 on the Empowerment of Women in the Millennium Development Goals (MDGs).
Two key policy making bodies, the National Committee on Women and the National Child Protection Authority, have not sat together and sought a consensus on how to ensure effective child care without undermining the livelihood opportunities of women. These two bodies are supposed to have official representation from key line ministries dealing with this subject, but increasingly chairpersons of policy bodies are making statements on policy disregarding the principle of consultative policy making.
There is an atmosphere of public administration in which disregard of regulatory frameworks is considered legitimate because Presidential authorisation or Cabinet approval has been obtained for decisions on key issues which affect public concerns, including service delivery. Consequently, statutory bodies are not performing their responsibilities to the public as required by the law.
The decline in public administration is manifested in the behaviour of Cabinet Ministers who have a leadership role in State institutions. They often behave in a manner unbecoming of their public office, and make public statements which are sexist and sometimes obscene, humiliating women as well as officials, including visiting dignitaries. They bring the country and the administration into disrepute, but are never held accountable for their behaviour, which is often trivialised by the Government and even the public. This reinforces the culture of impunity for dereliction of duty.
Universities and university governance
The decline in public administration is replicated in the public university system. Universities are governed by the Universities Act and relevant Ordinances. They are also members of the Association of Commonwealth Universities. Sri Lankan universities are expected to follow the standards and procedures set by statutes and the Constitution of our country, which confer rights on academics and duties on university administrators. The fundamental value enshrined in the legislation and the Constitution is respect for university autonomy, though the State funds these public institutions.
Recent events show a pattern of disregard, by the Government and the University Grants Commission (UGC), for this key constitutional, legal and commonwealth value system on academic autonomy in universities. This disregard includes appointments of Vice Chancellors on the basis of political affiliation rather than academic merit, extension of the services of a Dean in violation of the Universities Act, the imposition of State security services on universities, and interference with freedom of speech and expression. Politicisation of academic appointments, including professorial posts and posts of Heads of Departments, is another feature that is a cause for concern.
Post-CHOGM reflections in a meeting of academia with the UGC, with the participation of the President and Ministers, indicate that the UGC is now proposing to “uplift the status of Commonwealth universities” by focusing (among other issues) on the theme of democracy, good governance, and the rule of law. As citizens we must ask whether this public rhetoric conforms to the reality in Sri Lankan universities.
The appalling interference with universities is a manifestation of political authoritarianism in the governance of important public institutions. The totally erroneous perception that disregard of constitutional and legislative procedures is permitted in an all powerful Presidency, and that Ministerial decision-making outside the legal framework is permissible, has contributed to passivity within university bodies which earlier would not have tolerated these intrusions.
The decline in leadership in universities at the level of Vice Chancellors, and the undermining of institutional responsibilities of University Councils, Senates and Faculty Boards, has had and will continue to have, a serious impact on the State university system. The politicisation of appointments to University Councils, which is very apparent in recent years, has made the governing bodies of these institutions incapable of giving the advice and guidance necessary for university governance.
The growing environment of religious intolerance, and the alarming disregard of religious and cultural diversity and erosion of values of respect for diversity, have not received an effective response from the Government. There has been a shocking silence on the part of the Government even after the most recent violent attacks on churches in Hikkaduwa.
The recent interview on Al Jazeera where the President stated that violent incidents of religious intolerance occurred because of the rape of a girl child, and also that such violence was an inevitable consequence of such acts, is particularly shocking. This, apart from being inaccurate, is a Presidential justification of persons illegally taking the law into their own hands, and an admission that the Government has abdicated its role in maintaining law and order and protecting its citizens. That leading members of the Government support some extremist groups undermines the commitments of the Government to ensure the safety and security of all communities.
Culture and tradition
Justifications of tradition and culture are used to undermine the human rights of some groups such as women and children. This is seen in the ineffective responses to sexual violence against women and children in public places. There are reliable reports that the campaign for zero tolerance for domestic violence is undermined because important politicians question the role of the state in preventing such violence. The recent restriction on women’s right to seek employment in overseas migration has already been referred to.
Extremist and chauvinistic cultural arguments have also been used to undermine the reproductive health of women and the family planning programmes of this country. A recent Government regulation has prevented service delivery in this area by non-Governmental organisations in a situation where the State cannot possibly cover the needs of the country without such support. We are regressing from our family planning achievement and this has serious health and demographic implications.
The issue of militarisation of public administration has been raised in several statements of the Friday Forum. There is ample evidence that the military, which in peace time should not perform civilian duties, is being used for that purpose in Sri Lanka. Senior civilian public service positions are now taken by military personnel. The Defence Ministry is forming companies and getting contracts to deliver services in a variety of areas, including the hospitality trade and construction work, bypassing accepted financial procedures with the approval of the Treasury, the Cabinet and the President.
Despite the ending of the armed conflict and the lifting of the emergency the President continues, each month, to use his power under the Public Security Ordinance to call out all the armed forces for the maintenance of public order in all 25 administrative districts of the country.
This militarisation is contrary to the norms of democratic governance and also contributes to the erosion of civilian institutions.
Responsibility of the Government and the people
These issues must be seriously examined by the public in forming an opinion as to whether there is an urgent need to reinforce norms and institutions of democratic governance. The issues raised above indicate the debilitating impact of an authoritarian Executive Presidency, acting as if the Constitution and the laws of the land are irrelevant in governance. The Government must address these issues rather than make public statements on the vibrant nature of our democracy.
Citizens of this country, while they may have different political affiliations, must not legitimise this erosion of democracy. It is true that the President and Government have registered election victories. Whether, and the extent to which, the Government has popular support, is not relevant to the duty citizens have to scrutinise its record. Affirmation, even by silence, of governance that contravenes the Constitution, other laws, and binding international treaty obligations, can only lead to a complete breakdown of democratic values and institutions.
As citizens we should not accept Government statements on commitments to democratic governance when there is no effort at all to address the above issues. Consenting to this type of governance as a legitimate function of the Presidency when the Constitution and the laws of the land do not confer such powers on the President can only lead to a breakdown of democracy in our land.
On behalf of Friday Forum,
Jayantha Dhanapala, Professor Savitri Goonesekere, Dr. G. Usvatte-aratchi, Professor Camena Guneratne, Suriya Wickremasinghe, Rt. Reverend Duleep de Chickera, Professor Arjuna Aluwihare, Ahilan Kadirgamar, J.C. Weliamuna, Dr. A. C. Visvalingam, Anne Abayasekara, Tissa Jayatilaka, Radhika Coomaraswamy, Rev. Dr. Jayasiri Peiris, Dr. Jayampathy Wickramaratne, Dr. Upatissa Pethiyagoda, Professor. Gananath Obeyesekere, Danesh Casie Chetty, Professor Ranjini Obeyesekere, Dr. Deepika Udagama, Sithie Tiruchelvam, Damaris Wickremesekera, Dr. Selvy Thiruchandran, Faiz-ur Rahman, Manouri Muttettuwegama, Shanthi Dias, Javid Yusuf, Chandra Jayaratne.