An acid test of right and wrong

By Kishali Pinto Jayawardene

(March 28, Colombo, Sri Lanka Guardian) Skeptics cannot truly be blamed for not taking this government seriously when it talks of improving its human rights record. Even with the most commendable of efforts, one is hard put to feel any discernible happiness when we hear, for example, that the government plans to roll back some of the emergency regulations and amend the country's criminal procedure laws, as announced in Brussels recently upon the conclusion of talks with the European Commission on the GSP Plus privilege.

Of inconsistencies and ironies

At a minimal level, it is good that the unfortunately strident rhetoric that used to characterize such dialogues on the part of government representatives has softened. However, numerous inconsistencies continue to abound which militate against an uncritical acceptance of such announcements of future good conduct. For instance, we have this most beautifully obvious irony of government spokesmen holding forth on a National Human Rights Plan while Sri Lanka's premier rights monitoring bodies, the National Human Rights Commission as well as the National Police Commission remains fundamentally crippled by the non-implementation of the 17th Amendment to the Constitution.

Again, plans are apparently afoot to reform the rights chapter in the Constitution and we are informed that worthy members of society are studying the precise manner in which these reforms may be effected. Yet we continue to be in a peculiar situation where even the basic rights that exist in the current constitutional document are not being secured to some of us. And a Right to Information Act is being promised while basic access to websites critical of the government is blocked at election time and the repression and intimidation of the media in Sri Lanka has not noticeably decreased; witness the most recent attack on the Sirasa news station.
It is the 17th Amendment again

Recently I was warned by one perennially critical reader of this column that if I mention the 17th Amendment again, he would desist from reading this column space completely. This was based on a two fold argument, First, that the 17th Amendment was basically flawed and should never have been enacted. Secondly, it was that, even if a contrary line could be taken on the first argument, this was useless as political action has effectively rendered this amendment to be of no force or effect.

Taking the risk of having one reader less, I would however deal with these two arguments. It is a convenient façade that the 17th Amendment is flawed and therefore needs further amendment. Yet nothing could be further than the truth. The only flaw in the 17th Amendment was the specific disinclination of the Presidency and certain political groupings in Parliament to make this most important constitutional amendment work for the good of the Sri Lankan people.

As has been repeatedly clarified by the Organisation of Professional Associations with some justified ire, this amendment was the result of many months of work and was certainly not conceived of in an indecent hurry as it were. After being enacted by the House with some political compromises being reached, it was indeed working very well indeed in the first three years. The first crack appeared only well into its first term when former President Chandrika Kumaratunga stubbornly refused to appoint the Chairman of the Elections Commission nominated by the then Constitutional Council.

So let us be very clear on this point; the evils of the present situation cannot be laid solely on the shoulders of the current Presidency. Indeed, the main United National Party should shoulder a part of the blame in not pressing this matter strongly enough by 2005 when it had become quite clear that there was a definite political motive on the part of the regime in not conforming to this constitutional amendment.

Meanwhile, the argument that consequent political action has made this amendment redundant is a dangerously slippery slope indeed. On the same argument, the very Constitution intoto can be disregarded on an expedient doctrine of necessity as indeed has been the case in some unfortunate countries. So where does this leave our noteworthy efforts to 'reform' the existing Constitution? On the contrary, it must be clearly signified that existing constitutional provisions must be adhered to in their entirety before credible support is given to the government towards further 'reform' of the constitutional document.

The Singarasa Case and the GSP Plus privilege

This lack of credibility does not only apply to the government by any means. During the last two weeks, we have been treated to the incredible spectacle of former Chief Justice Sarath N. Silva advising the Government, in his spirited defence of former Army Commander Sarath Fonseka, to adhere to international human rights standards in order to ensure the GSP Plus privilege.

To put it in colloquial but irresistibly apt language, this advice is indeed rich given that it was the former Chief Justice's own reasoning in the Singarasa Case (2006) that led in the first instance, to doubts being raised in regard to Sri Lanka's compliance with international human rights treaties. In previous decades of the Court, we had judges of the caliber of former Chief Justice GPS de Silva, Justices Mark Fernando, C.V. Vigneswaran, ARB Amerasinghe, KMMB Kulatunge (among others) who, while not betraying the country's internal legal framework, cannily brought in international standards to strengthen domestic rights protections in manifold instances. The integrity of Sri Lanka's domestic legal framework, despite its many shortcomings, was never seriously in doubt until the Singarasa Case.

However, this admirable judicial history was compromised by former Chief Justice Silva's determination to render the Views of the Geneva based United Nations Human Rights Committee, (comprised of international respected scholars, including former judges and Chief Justices from around the world), of no avail. Following his own judgments being questioned by the Committee in the Tony Fernando Case (2005) and the Victor Ivan Case (2005), the then Chief Justice went to the unprecedented and jurisprudentially unsound extent of declaring that the Committee, in examining individual communications submitted by persons from Sri Lanka, exercised 'judicial power' within the country. Unfortunately, this case which turned the teaching of international law upside down in universities and law schools was not academically critiqued as it ought to have been. In part, this was due to the weapon of contempt of court that this Chief Justice indiscriminately wielded against lawyers, writers and laymen who angered him at that time.

It was no answer to the Singarasa Case that the Court itself (again by a Bench presided over by the former Chief Justice) later delivered an advisory opinion declaring that Sri Lanka's laws were in accordance with international law (2008) or that a so-called International Covenant on Civil and Political Rights Act, No 56 of 2007 was enacted. By this time, the damage had already been done and the efforts made to redress the same by mere opinions and sadly deficient laws were feeble. The repercussions of this judgment still continue to reverberate.

An acid test for governance

That said and quite apart from the monumental hypocrisy exhibited by some critics of this government, the task before the current political rulers is to reestablish credibility in governance, not by illusionary promises or ambitious Action Plans. Rather, it is by immediately conforming to the existing Constitution. The excuse that sufficient time must be given since the ending of the war is wearing a bit thin after all, given that we are close to one year passing after the end of active conflict.

And this columnist, for one, will certainly not stop talking of the 17th Amendment to the Constitution, which remains the acid test that the government must pass to prove its minimal bona fides.