Improve democracy and Rule of Law – AHRC

BY Ruwan Laknath Jayakody and Umesh Moramudali

Director of Policy and Programmes at the Asian Human Rights Commission and the Asian Legal Resource Centre and Right Livelihood Award/Alternative Nobel Prize Winner, Basil Fernando spoke to Ceylon Today about what the country needed to do in order to instil democracy, establish the rule of law and improve human rights.

Excerpts of the interview:

“Modernize the Police and the CIABOC and allocate adequate budgets” – Director of Policy and Programmes at the AHRC and the Asian Legal Resource Centre, Basil Fernando

?With the change of the government do you expect any changes in terms of the human rights situation in the country?
A: The Election results of the Presidential Elections on 8 January, and the Parliamentary Election on 17 August, can open up extraordinary possibilities for the improvement of democracy, rule of law and human rights in Sri Lanka. This statement needs to be qualified by adding that opportunities are as good as the availability of the people to utilize such opportunities.

In this regard, there is a serious and very difficult problem, which is that we have to consider as lost, the period between the promulgation of the 1978 Constitution and 8 January 2015, as a period that has caused enormous damage to the political and the legal system – which has thereby created great difficulties for the actual realization of human rights. This damage, lasting such a long time, will not go away automatically. The damage could be modified, only by way of well-considered strategies and actions to recreate the memory of a functioning rule of law system. This implies a change of capacities at the level of the political leadership as well as among the officials of all sectors of the bureaucracy, and with the emergence of conscientious opinion makers who could throw light on what should be done and thereby, give guidance to a mass movement on as to what they should demand, in order to achieve this change.

Unfortunately, what we have seen so far are only vague and highly generalized statements. For example, to say that the government will cause big economic development and that will look after all other problems, is too broad a concept to be of any use as a guide to action. It only demonstrates a lack of a comprehensive view of the challenges now faced, in order to utilize the opportunity that has now become available. Reconciliation is also a very vague and even an empty word unless the content of what is meant in political, social, and legal terms are spelt out. Spelling out ideas in practical detail takes place only when there is prior thought about these matters. When people during that long and dark period thought of themselves as being losers, their energies were concentrated purely for protest and self-defence. What we shall do if we become victors was never thought out. This has created a vacuum, both for the political leadership as well as for the leadership of the movements of the people. Anyone who wishes to contribute seriously to alter this situation must try to create a discourse of what we need to do now, so as not to let a great opportunity pass by.

On this basis, on the one hand I am very hopeful, and on the other, very anxious. This is a kind of moment, where the long term loser who has now made a few significant gains can turn out to be his own enemy. If we do not resolve the ‘thought vacuum’ needed to improve political, social and legal institutions, we will soon have a lot to regret. Therefore, I hope that more people will wake up to this challenge and give up the habit of mere mouthing of clichés and engage in some serious thinking on areas that need immediate attention in order to create a sustainable foundation for democracy, rule of law and human rights.

In this regard, over a long period of time, we have tried to create a discourse within Sri Lanka, on the way the long period of rule under the 1978 Constitution has damaged our law enforcement agencies and our judicial institutions. Namely the Attorney General’s Department and the Judiciary. No improvement of human rights is possible without some tangible changes in the law enforcement agencies such as the policing service, and the Commission to Investigate Allegations of Bribery or Corruption (CIABOC). These institutions have been seriously damaged, and in any case they are quite out of time. The original model of a colonial law enforcement mechanism does not suit a democracy where the primary place should be given to the protection of all individuals. Modernization of the Police and the CIABOC is a primary requirement for the improvement of human rights. Such modernization can be achieved only if the government accepts that as an issue, it deserves priority, and that adequate budgets are allocated to make the change possible. The saying that “you have to put your money where your mouth is” is an appropriate summing up of what the government needs to do, if the rule of law and human rights are to be improved.

? The United Nations Human Rights Council sessions are round the corner. How do you suggest the government should face it?
A : The only genuine way the government can face this, is by taking visible steps to improve the law enforcement capacity that includes, the criminal investigation capacity of law enforcement agencies, and the capacity of the judicial institutions to act as the protectors of the rule of law. If the government will not take serious steps in this regard, it will not be able to convince the world of the allegations about the crimes that may have occurred and that they will in fact be genuinely investigated, and that justice would be provided to those who have such grievances.

The coming year will test Sri Lanka’s willingness and capacity to create a functional criminal justice system in Sri Lanka. If the overall assessment of that issue will be negative, the Sri Lankan claim that it will internally deal with this issue will lose all credibility. All Executive Presidents who governed the country under the 1978 Constitution believed that they can bluff the world in the way they have bluffed the people in Sri Lanka. It is to be hoped that the new government has a more realistic view of the global, political as well as the human rights systems and approach this problem in such a realistic manner. Once again, an opportunity is available to build credibility of the capacity of the Sri Lankan State to ensure justice, however, whether that opportunity will be utilized or wasted will unfold in the near future.

?There has been talk about ratifying the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR)?
A: There should be no difficulty for Sri Lanka to ratify the Second Optional Protocol to the ICCPR which aims to gain the agreement of governments to abolish the death penalty. Sri Lanka has not carried out death sentences and usually sentences are reduced to life imprisonment. By ratification, we can raise this situation of non-enforcement of death sentences, into a more respectable position of adopting international standards that are set out in the Second Optional Protocol to the ICCPR.

? In the recent past there were requests to ratify the Convention on the Rights of Persons with Disabilities. How should the government look into it?
A: The government should look into the Convention for the rights of people with disabilities, as yet another opportunity to set standards for the treatment of these persons. Sri Lanka’s claim that it has a long standing religious and humanitarian tradition can be put to test, by the willingness or unwillingness to follow the international norms and standards on this issue.

? What are the constitutional reforms needed to enshrine human rights, given that we do not have the right to life?
A: In terms of constitutional reforms, although we do not have the right to life, in our Bill of Rights, the Supreme Court has firmly held that it is a part of the constitutional law in the country as this right is implied by accepting other rights. However, in a Bill of Rights under new reforms the right to life could be spelt out more clearly.

It could also be spelt out as it has been done in India to include a dignified way of life for citizens and not mere animal existence. This would include the recognition of economic, social and cultural rights and thereby create a new discourse on dealing with issues such as the right to potable water, environmental rights, the right to health, and the like, which are all issues that are related to the improvement of democracy in the country and good governance which the new President has adopted as the motto for his government. However, there are other important constitutional changes among which, in our view, the most important one is to incorporate ‘the principle of basic structure’ into the Constitution signalling the essential areas of democracy and rule of law which the Legislature or any branch of government cannot legislate against.

This position has been achieved in India by way of judicial decisions i.e. by the judgment made 40 years ago in the Kesavananda case [Kesavananda Bharati v. State of Kerala], and reinforced by many other judgements. Had this doctrine of basic structure been a part of our Constitution, many parts of the 1978 Constitution and many of its amendments such as the 18th Amendment to the Constitution, could have been annulled by the judiciary – as these are opposed to the basic structure of Sri Lanka as a democracy.

In order to avoid any future repetition, of the sad and bitter experience we have suffered from 1978, it is essential to incorporate, in very deliberate terms the basic structure doctrine into the Sri Lankan Constitution. This is also essential in order to ensure that neither the Legislature nor the Executive will be able to attack the status and the independence of the Judiciary. We hope that both the government and all opinion makers will give serious consideration to ensure the incorporation of the basic structure doctrine into the constitutional law of Sri Lanka.

? Are there any structural changes required to be made in the Judiciary and law enforcement authorities and agencies to enhance the human rights situation?
A: A few steps that can be taken immediately can make a drastic change in the actual performance of law enforcement agencies and the Judiciary. As for law enforcement agencies the government must declare a policy of modernising the Sri Lankan Police and the CIABOC and other agencies that have law enforcement powers.

This policy statement will be the first step of a strategy leading to other steps such as steps to improve capacities at all levels which include not mere education but also providing all necessary facilities, such as forensic facilities, and the capacity building for the use of such forensic skills. That ultimately leads to providing an adequate budget for such changes.
The ‘Achilles heel’ for the new government will be the manner in which Sri Lanka’s judicial institutions are helped to overcome the enormous damage they have suffered since the onslaught of several governments after the promulgation of the 1978 Constitution. In the legal profession and among the public, there is almost despair about the possibilities for enforcement of the concept of the independence of the Judiciary in Sri Lanka. There are criticisms about the capacities of many judges, even those at the highest levels. The recruitment policies of the previous years are being regarded with contempt, by persons who are committed to a rule of law system. The allegation of corruption is now common and the public has formed its own opinions about this situation.

The cooperation of better elements of the Judiciary itself, the Bar Association of Sri Lanka, the intelligentsia in the country, and the government in trying to articulate the problem honestly, and to look for the steps necessary to address this issue, is perhaps the most urgent need, if this government is to achieve what it claims it will try to achieve.
Good governance, with the type of judicial institutions, as we have now, is in fact, contradictory. It can even be argued, as it has been argued about Myanmar, that the changes which have taken place since 1978, has set judicial institutions opposed to the rule of law.