Can a sovereign in a democratic state claim the right to deny the protection of the rule of law to its citizens? This is the core issue that has come to the forefront over the dispute with the international community and Sri Lanka in terms of the GSP+ issue as well as the appointment of a panel to advise the UN Secretary General on matters relating to human rights in the latter part of the conflict with the LTTE. The Sri Lankan government has claimed that the position taken by the European Union regarding GSP+ as well as the position taken by the UN Secretary General as interference in sovereignty.
This claim needs to be seriously considered.
The crux of the matter therefore is the problem of sovereignty and the claim of the sovereign to dismantle the democratic framework as a privilege of the sovereign. Can such position be defended within the framework of a republic based on the rule of law and democracy?
Basically, the GSP+ issue centered around the right of the Sri Lankan government to dismantle public institutions which are essential for guaranteeing a democratic way of life within the country. The Sri Lankan parliament has taken the decision in 2001 to intervene against the collapse of the rule of law system within the country by the overpowering influence of the executive president. For this purpose the institutions of the 17th Amendment were introduced for curtailing the powers of the head of the state to dismantle the basic public institutions of the nation.
The government headed by Mahinda Rajapakse took the decision to dismantle the institutions of the 17th Amendment. This was done under all kinds of pretexts such as the 17th Amendment had deficiencies and they needed to be corrected. However, such pretexts were only a guise to dismantle the attempt by parliament which wanted to curtail the power of the executive president to interfere with the basic institutions that guaranteed the functioning of public institutions.
The European Union, amongst its conditions, requested the reimplementation of the 17th Amendment. The executive president and his government take the position that this is interference with internal affairs and sovereignty. However, as the sovereign in a democratic state does not have the right to dismantle the public institutions that guarantee the functioning of democratic institutions. The issue in the contemporary debate is not about the sovereignty of Sri Lanka but about the power of the president to undermine rule of law and democracy. No president can be allowed to say I am an elephant and I can trample on the citizens.
It has become common political talk throughout the country, introduced by the propaganda of state media that the state can do whatever the people want. It is claimed that, if the people want to dismantle the public institutions and give absolute power to the sovereign that too is can be done by the president.
The problem of the Sri Lankan constitution as it was introduced in 1978 is that it created the situation in which the executive president can disempower the parliament and the judiciary. This has already been experienced over several decades and the Sri Lankan parliamentary system and the Sri Lankan judicial system are today both in a serious crisis. The parliament recognised this crisis when it passed the 17th Amendment.
The claim that Sri Lanka has a robust parliament and judiciary is no longer reflects the factual reality. Sri Lanka did have a relatively strong judiciary; however, over a long period of interference, particularly from the 1972 Constitution until now the judiciary has been seriously weakened. It is the claim of all political leaders that there was such interference. The entire process of appointments to the judiciary has been affected over a long period of time. The attack on the former chief justice for his role in collaborating with the executive was made by all political factions in Sri Lanka. In actual reality the Sri Lankan judiciary is no longer robust; it is subjected to serious intimidation and judicial officers themselves have claimed in public that there is direct interference from the highest authority over cases which are before them. The statement of the former Chief Justice, Sarath Nanda Silva on the case of the petroleum corporation was that there was direct interference from the executive on this issue when the case was before the court.
On political issues the liberty of the judiciary has been seriously jeopardised. These are factual realities and a purely theoretical argument on the basis of sovereignty that such institutions exist in Sri Lanka is not borne out by actual experience of the people. Judicial institutions in Sri Lanka have suffered an extraordinary setback and the people are seeking other methods of dealing with their problems rather than seek judicial remedies as they are aware of the extent to which the judiciary is being interfered with.
Once the head of the state is above the law as he is now, the people of Sri Lanka can no longer be sovereign.
It is this actual reality that has led to the crisis in international relationships. If the Sri Lankan government obstinately adheres to its own position, it will further jeopardise the economic wellbeing of all Sri Lankan people. If the claim of sovereignty is that it can jeopardise the economic wellbeing of the nation in order to preserve the absolute power of an individual or the ruling party, then ultimately it is taking a risk that can lead the nation into great problems and catastrophes.
The List of Actions Recommended by the European Union as Conditions for GSP+
1. Reduction of the number of derogations to the ICCPR
2. Take steps to ensure that the key objective of the 17th Amendment to the Constitution, namely to provide for independent and impartial appointments to key public positions is fully safeguarded, including through a Constitutional Council which adequately reflects the interests of all political, ethnic and religious groups and minorities within Sri Lankan society.
3. Repeal of the remaining part of the 2005 Emergency Regulations, notably those Regulations concerning detention without trial, restrictions on freedom of movement, ouster of jurisdiction and immunity and repeal of The 2006 Emergency Regulations (Gazette No 1474/5/2006). If GoSL considers that it is essential to retain certain provisions which are compatible with the ICCPR or UNCAT, such as provisions concerning possession of weapons, such provisions should be transferred to the Criminal Code.
4. Repeal of those sections of the Prevention of Terrorism Act which are incompatible with the ICCPR (in particular, sections 9, 10, 11, 14, 15, 16 and 26) or amendment so as to make them clearly compatible with the ICCPR.
5. Repeal of the ouster clause in section 8 and the immunity clause in section 9 of the Public Security Ordinance or amendment so as to make them clearly compatible with the ICCPR
6. Adoption of the planned amendments to the Code of Criminal Procedure, which provide for the right of a suspect to see a lawyer immediately following his arrest
7. Legislative steps necessary to allow individuals to submit complaints to the UN Human Rights Committee under the First Optional Protocol to the ICCPR and to the UN Committee against torture under Article 22.
8. Steps to implement outstanding opinions of the UN Human Rights Committee in individual cases.
9. Extension of an invitation to the following UN Special Procedures who have requested to visit Sri Lanka (UN Working Group on Enforced Disappearances, UN Special Rapporteur on Torture, UN Special Rapporteur on Freedom of Expression, UN Special Rapporteur on Independence of Judges and Lawyers).
10. Responses to a significant number of the individual cases currently pending before the UN Working Group on Enforced Disappearances.
11. Publication of the complete final report of the 2008 Commission of Enquiry.
12. Publication of making available to family members a list of former LTTE combatants currently held in detention as well as all other persons detained under the Emergency Regulations. Decisive steps to bring to an end the detention of any persons held under the Emergency Regulations either by releasing them or by bring them to trial.
13. Granting of access to all places of detention for monitoring purposes to an independent humanitarian organisation, such as the International Committee of the Red Cross.
14. Adoption of the National Human Rights Action Plan by Parliament and its prompt implementation.
15. Take steps to ensure journalists can exercise their professional duties without harassment
