The second term of the president-outside constitutionalism, rule of law and due process

A Statement by the Asian Human Rights Commission

(February 14, Colombo, Sri Lanka Guardian) The Sri Lankan President, Mahinda Rajapakse, has begun his second term in office. The system of governance in which he works is one that falls clearly outside constitutionalism. The basic principle under which the existing ‘Constitution of Sri Lanka’ works is that the head of the state is above the law. Once the head of the state is above the law, constitutionalism as it is known in the democratic world cannot exist. Liberal democracy begins at the point where everyone is equal before the law. Equality before the law means answerability for illegality by everyone. The twin principles that everyone is equal before the law and the supremacy of the law above all else cannot be separated. In Sri Lanka they have been separated, and therefore the state does not recognise the supremacy of the law.

Without equality before the law and the supremacy of the law, the rule of law simply cannot work. The rule of law implies that all actions of the state are done within the framework of the law. The laws are those which are passed by the legitimate authority of a parliament and have the acceptance of the people. When the rule of law is abandoned, the country can be ruled by orders that come directly from the executive. For example, the law may prescribe that for all important positions in the public service the Constitutional Council should make the appointments. However, the executive can ignore this and make the appointment himself. At that point there is no law to go by and this can spread to any and all aspects of life.

When the entire process deepens the so-called national security regulations, which replaced the law come into effect. The law may prescribe the criminal procedure of Sri Lanka; however, the national security regulations can displace criminal procedure and with that, the basic rule of law is completely replaced. In a rule of law structure, criminal procedure is fundamental. Criminal procedure does not refer purely to matters relating to criminals; it refers to all matters relating to citizens. When criminal procedure is replaced by arbitrary national security laws, then thereafter the country is ruled by those regulations. Sri Lanka reached that point some time ago and this was done under the pretext of dealing with various insurgencies in the south, north and the east.

Today, the national security regulations have replaced criminal procedure and arbitrariness prevails in all aspects of the legal structure in the country. The present situation is a combination of the displacement of constitutionalism and the rule of law. The displacement of constitutionalism since 1978 has created a situation where the separation of powers is not an operational principle in Sri Lanka.

By various means, the parliament and the judiciary have been demoted and the separation of powers no longer exists as it should within a liberal democracy. The Sri Lankan power model is one where the executive overpowers the parliament and the judiciary. With the displacement of these basic principles, the due process of law has now been challenged. In fact, it has been challenged for a long time through national security legislation. National security legislation has provided for the displacement of rules relating to arrest, detention, trials and the holding of persons incommunicado in secret locations. This new aspect has been added to by the introduction of military tribunals.

New army commander becomes a Cat’s paw in a political game;

The case of Sarath Fonseka will mark the most glaring beginning in dealing with the denial of individual liberties for political participation through military tribunals, done under the pretext of creating legality for what is fundamentally illegal within a rule of law system. As a rule of law system does not exist now, only the façade of legality is observed when so-called military tribunals, which are a pure manipulation of the army commander’s position for political purposes, are introduced. With this particular case, the army commander becomes a cat’s paw in the political games of Sri Lanka. When questions are asked about the arrest and detention and the possible trials of Sarath Fonseka, the government now answers that these are matters that will be decided by the military commander. Thus, the military commander has been reduced to a political cat’s paw in the serious politics of the country.

Mrs. Sirimao Bandaranaike was deprived of civil rights through a commission, thus the taking the case against her outside the normal judicial process in Sri Lanka. In similar manner, the denial of political participation of the common candidate in the last presidential elections is now being brought through a military tribunal under the pretext of dealing with military offenses done prior to his retirement. The whole exercise is a political pretense; it lacks the legitimacy and the dignity of a legal process.

The attack on due process exists in Sri Lanka by the use of extrajudicial punishments on a large scale. The causing of disappearances has been, in the recent decades, a major phenomenon in Sri Lanka. Forced disappearances are a means by which all legal rights of a person are denied, and the person is, in fact, executed by an agency of the state outside any kind of legal process. Thus, the absence of legal process relating to tens of thousands of persons is a part of the legal culture of Sri Lanka now, and this is also demonstrated by the case of Pregeeth Ekanaliyagoda, the disappeared journalist.

Such is the situation of Sri Lanka today. It is a country outside constitutionalism, the rule of law and due process. It is within this context that the second term of Mahinda Rajapakse has begun. The demands for the abolition of the executive presidential system as the beginning of undoing of this system, and the return to constitutionalism and rule of law have now been forgotten. Therefore there is no likelihood of a return to constitutionalism, rule of law or respect for due process.

Justifications given for abandoning constitutionalism, rule of law and due process

There are two different perspectives which support the abandonment of constitutionalism, rule of law and due process:

a. Development perspective.
b. Nationalist perspective.

The development justification

This is the view that economic development should be the first priority of the government, and that for this purpose democracy can be abandoned. This has become a quite strongly held view in the government, supported by some economists.

According to this view, corruption may be an inevitable consequence of this stage of development. The idea that bringing in investments under whatever conditions and ensuring some infrastructural developments, such as development of roads, highways, electricity, telecommunication and the like should remain the topmost priority, even if this means the abandonment of practices of good governance. This has become an openly expressed point of view. The last presidential election has been interpreted as an endorsement of this perspective and a rejection of the view that development should take place within the framework of democracy and good governance. Even the letter issued by the Mahanayake Theros on the 12th February calling for a gathering of monks recognizes that a challenge to democracy and good governance has now been seriously posed in the country.

The nationalist justification

The nationalist perspective goes beyond the development perspective in abandoning constitutionalism, rule of law and due process. According to this perspective, these are all alien concepts to the Sri Lankan culture and psyche. The ideologies for nationalism argue that it is the western countries that brought some urban concepts and institutions to Sri Lanka, which is basically rural in its structure and mentality. They argue for the need to abandon all these urban structures and return to what they call indigenous structures in which, even nepotism, has been very much a part of the social organization.

The leader of Hella Urumaya, Ellawala Meedananda, for example, argues that during the time of Vijeyabahu there was an insurrection and all the rebels were massacred by the king. He uses this in support of attacks on opposition that is taking place after the presidential election. In his view, the destruction of those who do not cooperate with the ruler is justified. This nationalist perspective became popular during the decades where the LTTE posed a threat to the Sinhala state. The very notion of minority was seen during this time as a western concept. The argument against the total abandonment of what was called the western construct and the need to return to what was imagined as an indigenous system of governance, which was never spelled out, became some kind of a nationalist belief.

Both the development perspective and the nationalist perspective support repression as a necessary condition of ruling under present circumstances. This is the perspective that is followed now.
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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.