The Constitution stands between the High Commissioner for Human Rights and the Sri Lankan government
A comment on the report for promoting reconciliation and accountability in the country
| by Basil Fernando
Author's email basil.fernando@ahrc.asia
( February 15, 2013, Hong Kong, Sri Lanka Guardian) The United Nations High Commissioner for Human Rights, Ms. Navanethem Pillay, on February 11, 2013 issued the Report of the Office of the United Nations High Commissioner for Human Rights on advice and technical assistance for the Government of Sri Lanka on promoting reconciliation and accountability in Sri Lanka. This report is in terms of Resolution 19/2 of the Human Rights Council and in preparation for the debate on the resolution which will take place in Geneva in March of this year. The Sri Lankan government has virtually dismissed the report and yesterday (February 14) the government spokesman, when answering a media question about the report said that with regard to internal matters and matters relating to the Constitution the government is not answerable to anybody.
Reviewing the recommendations of the Lessons Learnt and Reconciliation Commission (LLRC) the High Commissioner has highlighted the following areas of concern: The rule of law and the administration of justice; credible investigations of widespread allegations of extrajudicial killings and enforced disappearances; detention policies; internal displacement and land issues; the right to freedom of opinion and expression; demilitarization and reconciliation and reparation.
The High Commissioner has rightly raised the rule of law and the administration of justice as the first issues in her list of concerns. In her opening paragraph Ms. Pillay states: In its report, the Lessons Learnt and Reconciliation Commission stress that an independent judiciary, transparent legal process and strict adherence to the rule of law are essential for peace and stability.
This statement alone suffices to sum up the lack of any prospect of a genuine or fruitful dialogue between the High Commissioner's Office as well as the Human Rights Council by the Sri Lankan government. Quite simply, the problem of the rule of law and the administration of justice are problems that arise from the very nature and the structure of the political system of Sri Lanka. The government of Sri Lanka relies completely on the system of governance which has been developed as a system where the executive president has absolute power. To question that is to question the very basis of the Mahinda Rajapaksa regime. Naturally the regime will resist any kind of challenge to the manner in which it rules Sri Lanka as interference into the internal affairs of the country.
Thus, the discourse on Resolution 19/2 begins in a deadlock. All the problems that the High Commissioner has highlighted from the recommendations of the LLRC are issues that challenge what the government has been doing on the basis of its interpretation of the 1978 Constitution, which is further strengthened by the 18th Amendment to that Constitution. The government's express wish is to go even further and to perfect the powers of the executive president as the absolute ruler. This position is in direct conflict with the issues raised by the High Commissioner as well as the movers of Resolution 19/2.
There is no way to get around this fundamental conflict between the nature and the structure of the Sri Lankan government and the fundamental issues raised by Resolution 19/2. The Mahinda Rajapaksa regime operates on the basis that the rule of law and the administration of justice are of no concern to the government. Anyone who does not understand this fact simply has no grasp of the operation of the political system in Sri Lanka at all.
The government has illustrated its approach to the rule of law and the administration of justice in the manner in which it acted and continues to act in relation to the impeachment of the Chief Justice, Shirani Bandaranayke, and the appointment of the new chief justice. To all those who raised their concerns from among the local community, as well as from all the authoritative international agencies, the government stated in plain language, "Just go to hell".
It is quite logical for the government to take that position. It knows that the style of rule it has developed in the country is incompatible with the basic norms of the rule of law and the administration of justice. Internally, the government has taken the position that it will ignore all these rules and undermine the judicial institutions as much as is needed to safeguard its style of rule.
In yesterday's briefing to the media the government spokesman said that the government may be willing to discuss any specific issues raised but it will certainly resist any discussion into matters which are internal affairs and which are related to Constitutional matters.
The problem with the LLRC was that it pointed out some very key issues which undermine the rule of law and the administration of justice in Sri Lanka. However, it did not go far enough to point out that all the problems it has identified arise from the very nature of Sri Lanka's Constitution itself. Of course the LLRC perhaps could not go that far as its own mandate was derived from the president and entering into a direct assault on the presidential system itself was perhaps, not within its mandate. What the LLRC did was to make a critique by way of implication. In local parlance this is called "Taking medicine without the knowledge of the throat".
This is the very same problem that the movers of Resolution 19/2 and the High Commissioner will be faced with. The problems enumerated by the High Commissioner arise from the very operation of the Constitution itself. When the government says that what it does is justifiable in terms of the Constitution it is, in fact, telling the truth. It is using the best excuse it has by asking, "Do you want us to act against our constitution"?
That was also the question it asked from all those who criticised them about the government's approach to the removal of the chief justice of the country without even affording her a decent inquiry. The government blatantly said that it was not obliged to provide such a decent inquiry as the Constitution has allowed it to act in any barbaric manner it wishes. "If the constitution was bad that is not our fault", was the government's excuse.
Can the movers of Resolution 19/2 and the High Commissioner face this argument by the government openly and directly? That is the issue that anyone who is seriously concerned about the rule of law and the administration of justice in Sri Lanka should deal with and no other issue regarding human rights can be dealt with unless this problem is addressed.
This is also the issue that the Tamil Diaspora is unable to deal with. The Diaspora calls on the government to provide justice for violations of the rights of the Tamil people. However, dealing with justice for those wrongs cannot be done as long as the Sri Lankan Constitution remains what it is. When the total structure of governance is incompatible with the rule of law and the administration of justice it is simply an illusion to demand justice on some issues under the same constitution.
This is also the issue that prevents the Sri Lankan opposition from coming together with an effective political programme for ensuring the rule of law and the administration of justice in Sri Lanka. The leading opposition party, the United National Party (UNP), refuses to take the issue of the Constitution head on. It says that if the 17th Amendment to the Constitution is restored it will be satisfied. However, there is no way that a government which has gone so far as to establish the 18th Amendment and wants to have even further amendments to make its rule absolute, is going to reinvent the 17th Amendment. As long as the UNP is unable to disown the 1978 Constitution and promise to do all it can to see the abolition of this constitution altogether, it has no honest political message for the country.
Thus, the UN High Commissioner's recommendations and the debate on Resolution 19/2 will only once again highlight the political deadlock that Sri Lanka is faced with. All attempts to deny this deadlock will only further strengthen the attacks of the Rajapaksa regime on the rule of law and the administration of justice.
The full report of the United Nations High Commissioner for Human Rights may be found here:
