In Sri Lanka an authoritarian Executive Presidency is acting as if the Constitution and the laws of the land are irrelevant

in governance.

Monday, January 27, 2014 Authoritarianism or Democratic Governance? by Friday Forum

There has been, in recent times, public discussion in regard to whether our country is moving towards an authoritarianism that undermines democratic governance. The resident, Ministers and government spo!espersons have consistently denied this allegation. They re"er in particular to the recent elections in three provinces as indicative o" a "unctional and vibrant democracy responsive to the needs o" the people. #n"rastructure development that has ta!en place is also cited. The recently concluded $%&'M hosted by (ri )an!a is considered an indication that (ri )an!a has achieved signi"icant international stature as a country whose governance "ollows $ommonwealth values. These values as stated in the "inal $%&'M communi*u+ re"er in particular to democracy, human rights, tolerance, "reedom o" e,pression, separation o" powers, rule o" law, good governance, and sustainable development. The *uestion whether this con"orms to reality deserves an ob-ective assessment. .ather than engaging in either assertions or denials o" authoritarianism, we as citi/ens, and the government, should ta!e serious stoc! o" signi"icant current trends in governance, and evaluate whether there is truth in this allegation, and i" so, what can be done to arrest it. The 0riday 0orum wishes to raise selected areas o" concern which merit public scrutiny and discussion. Our Constitution, international norms and standards, and Presidential power #t is o"ten said in public statements that international bodies e,ceed their mandate in reviewing the governance situation in (ri )an!a, and that these norms and standards have been determined by western countries and are being used to undermine the sovereignty o" our small country. 1e agree that there is no -usti"ication "or a highly

politicised and selective approach to the en"orcement o" human rights. 1hile the government may protest such an approach, this is no -usti"ication "or the government to violate its own obligations under our $onstitution and under international law to respect and promote human rights. &ur $onstitution in $hapter ### guarantees and provides "or the en"orcement o" human rights. (ri )an!a is also bound by the norms and commitments o" international human rights treaties that the (tate has rati"ied. 2rticle 273145 re*uires the (ri )an!an state to "oster respect "or international law and treaty obligations in dealings among nations. 6*uitable and inclusive development demands that economic growth and development activities do not result in a violation o" these obligations under the $onstitution and international law. The resident, in ta!ing his oath o" o""ice, accepts that he will "aith"ully per"orm his duties and discharge his "unctions in accordance with the $onstitution and the law 32rticle 72315 and the 0ourth (chedule to the $onstitution5. &ur $onstitution "urther says that he must do all such acts not being inconsistent with the $onstitution or written law, as by international law, custom or usage he is re*uired to do 32rticle 77 3"55. The popular perception that residential power under the $onstitution is unlimited is incorrect. 6conomic growth and an improvement o" in"rastructure cannot -usti"y a violation o" the obligations o" good governance according to our $onstitution and international law. 86*uitable and inclusive development8 re*uires government to implement the civil and political, and social and economic and cultural, rights o" the people. 2llocation o" "inancial resources "or health and education is as important as resources "or strengthening the criminal -ustice system. The indivisibility and interdependence o" all these rights must be recognised in plans and policies on development. eople9s participation is critical in setting priorities "or social and economic change. There must be in"ormed debate on o""icial policies regarding use o" national resources and "inancial allocations "or di""erent sectors. Breakdown o law and order and political inter erence in the administration o criminal !ustice The brea!down o" law and order has been a source o" public comment and concern "or many months. lacing the 2ttorney 'eneral:s department under the resident:s o""ice has eroded public con"idence in the impartiality o" criminal investigation and prosecutions without political inter"erence. #mpunity "or violence against media personnel and human rights de"enders has been raised nationally and internationally. The cancellation o" visas "or "oreign participants invited by the ;ar 2ssociation to a meeting on the rule o" law and democratic governance during $%&'M rein"orces the perception that the government will not tolerate critical comment on issues o" public concern or protect those persons see!ing to claim their right to "reedom o" speech and association. The )).$ recommended signi"icant changes in this sphere including the de<lin!ing o" the police "rom the Ministry o" =e"ence. "he recent solution o creatin# a new $inistry o %aw and Order placed under the President, with a &ecretary o this

$inistry who is an e' military commander, does not ollow recommendations o the %%(C, or address the issue o politicisation in en orcin# the criminal law) The events in 1eliweriya where the olice was replaced by the army and contributed to a violent suppression o" a peace"ul protest must surely be addressed as undermining the obligations o" a government in a democratic state to preserve law and order while protecting its citi/ens. "he !udiciary The recent proceedings to remove the $hie" Justice highlight the need "or signi"icant amendments in relevant $onstitutional provisions in order to ensure "airness and -ustice. The "ailure to ma!e the necessary amendments to ensure a -ust and "air in*uiry in impeachment proceedings against superior court -udges undermines public con"idence in the government:s commitment to ensure the core values o" -udicial independence and integrity. &ur country has a solid -urisprudence on human rights created by distinguished -udges who served on our (upreme $ourt, with the contribution o" lawyers who were encouraged to litigate on behal" o" victims o" human rights violations. "here are reliable reports rom lawyers and liti#ants that it has now become increasin#ly di icult or citi*ens and lawyers to seek remedies in the courts even or alle#ed in rin#ement o undamental ri#hts relatin# to torture and death in prison custody) Public administration The 6ighteenth 2mendment removed the term limit o" the residency while preserving its immunity "rom legal action. #t also did away with the independent public service commissions. This 2mendment rein"orced the concept o" an all<power"ul 6,ecutive residency, and has seriously undermined public administration at all levels. There is a popular perception even among bureaucrats that any administrative decision can be made with the approval o" the resident and the $abinet, and that the laws o" the land do not apply to such decision<ma!ing. The perception that $onstitutional norms and law and regulations can be disregarded is re"lected in non<consultative policy ma!ing in !ey areas. This is seen "or e,ample in appointments to senior public service positions, including posts such as government agents in the >orth, which are "illed by persons who are not "rom the (ri )an!a 2dministrative (ervice, but those with a military bac!ground. Many !ey diplomatic posts at all levels have been given to persons outside the service with political connections, thus underminin# the concept o a pro essional public and orei#n service selected throu#h a competitive process rom amon# +uali ied persons) ,n areas such as environment and women-s ri#hts, arbitrary decisions have been made with no accountability. 2n e,ample is the recent regulation o" the

Ministry o" 0oreign 6mployment denying women with children the right to travel overseas "or migrant wor! without proo" o" the arrangements made "or their minor children. The plight o" minor children is a tragic conse*uence o" the "ailure o" our economy over a long period o" time to provide reasonable livelihood opportunities "or low<income men and women. &ur Maintenance 2ct 1??? places a -oint and shared parental obligation on both parents "or the care o" children. This policy decision appears to have been made on a $abinet directive, which perceives women as the only persons responsible "or parenting and childcare in the "amily.This policy undermines the e*uality clause 32rticle 125 in our $onstitution, and the legislation on "amily support. #t also undermines (ri )an!a:s commitments under the 1omen:s $onvention 3$6=215, and 'oal 7 on the 6mpowerment o" 1omen in the Millennium =evelopment 'oals 3M='s5. Two !ey policy ma!ing bodies, the >ational $ommittee on 1omen and the >ational $hild rotection 2uthority, have not sat together and sought a consensus on how to ensure e""ective child care without undermining the livelihood opportunities o" women. These two bodies are supposed to have o""icial representation "rom !ey line ministries dealing with this sub-ect, but increasingly chairpersons o" policy bodies are ma!ing statements on policy disregarding the principle o" consultative policy ma!ing. There is an atmosphere o" public administration in which disregard o" regulatory "ramewor!s is considered legitimate because residential authorisation or $abinet approval has been obtained "or decisions on !ey issues which a""ect public concerns, including service delivery. $onse*uently, statutory bodies are not per"orming their responsibilities to the public as re*uired by the law. The decline in public administration is mani"ested in the behaviour o" $abinet Ministers who have a leadership role in (tate institutions. They o"ten behave in a manner unbecoming o" their public o""ice, and ma!e public statements which are se,ist and sometimes obscene, humiliating women as well as o""icials, including visiting dignitaries. They bring the country and the administration into disrepute, but are never held accountable "or their behaviour, which is o"ten trivialised by the government and even the public. "his rein orces the culture o impunity or dereliction o duty) .niversities and university #overnance The decline in public administration is replicated in the public university system. @niversities are governed by the @niversities 2ct and relevant &rdinances. They are also members o" the 2ssociation o" $ommonwealth @niversities. (ri )an!an @niversities are e,pected to "ollow the standards and procedures set by statutes and the $onstitution o" our country, which con"er rights on academics and duties on university administrators. The "undamental value enshrined in the legislation and the $onstitution is respect "or university autonomy, though the (tate "unds these public institutions. .ecent events show a pattern o" disregard, by the 'overnment and the @niversity 'rants $ommission 3@'$5, "or this !ey constitutional, legal and commonwealth value system on academic autonomy in universities. This disregard includes appointments o"

Aice $hancellors on the basis o" political a""iliation rather than academic merit, e,tension o" the services o" a =ean in violation o" the @niversities 2ct, the imposition o" (tate security services on universities, and inter"erence with "reedom o" speech and e,pression. oliticisation o" academic appointments, including pro"essorial posts and posts o" %eads o" =epartments, is another "eature that is a cause "or concern. ost $%&'M re"lections in a meeting o" academia with the @'$, with the participation o" the resident and Ministers, indicate that the @'$ is now proposing to Bupli"t the status o" $ommonwealth universitiesC by "ocusing 3among other issues5 on the theme o" democracy, good governance, and the rule o" law. 2s citi/ens we must as! whether this public rhetoric con"orms to the reality in (ri )an!an universities. "he appallin# inter erence with universities is a mani estation o political authoritarianism in the #overnance o important public institutions. The totally erroneous perception that disregard o" constitutional and legislative procedures is permitted in an all power"ul residency, and that Ministerial decision<ma!ing outside the legal "ramewor! is permissible, has contributed to passivity within university bodies which earlier would not have tolerated these intrusions. The decline in leadership in universities at the level o" Aice $hancellors, and the undermining o" institutional responsibilities o" @niversity $ouncils, (enates and 0aculty ;oards, has had and will continue to have, a serious impact on the (tate university system. The politicisation o" appointments to @niversity $ouncils, which is very apparent in recent years, has made the governing bodies o" these institutions incapable o" giving the advice and guidance necessary "or university governance. (eli#ious intolerance The growing environment o" religious intolerance, and the alarming disregard o" religious and cultural diversity and erosion o" values o" respect "or diversity, have not received an e""ective response "rom the government. "here has been a shockin# silence on the part o the #overnment even a"ter the most recent violent attac!s on churches in %i!!aduwa. The recent interview on 2l Ja/eera where the resident stated that violent incidents o" religious intolerance occurred because o" the rape o" a girl child, and also that such violence was an inevitable conse*uence o" such acts, is particularly shoc!ing. This, apart "rom being inaccurate, is a residential -usti"ication o" persons illegally ta!ing the law into their own hands, and an admission that the government has abdicated its role in maintaining law and order and protecting its citi/ens. That leading members o" the government support some e,tremist groups undermines the commitments o" the government to ensure the sa"ety and security o" all communities. Culture and tradition Justi"ications o" tradition and culture are used to undermine the human rights o" some groups such as women and children. This is seen in the ine""ective responses to se,ual violence against women and children in public places. There are reliable

reports that the campaign "or /ero tolerance "or domestic violence is undermined because important politicians *uestion the role o" the state in preventing such violence. The recent restriction on women:s right to see! employment in overseas migration has already been re"erred to. 6,tremist and chauvinistic cultural arguments have also been used to undermine the reproductive health o" women and the "amily planning programmes o" this country. 2 recent government regulation has prevented service delivery in this area by non< governmental organisations in a situation where the state cannot possibly cover the needs o" the country without such support. /e are re#ressin# rom our amily plannin# achievement and this has serious health and demo#raphic implications) $ilitarisation The issue o" militarisation o" public administration has been raised in several statements o" the 0riday 0orum. There is ample evidence that the military, which in peace time should not per"orm civilian duties, is being used "or that purpose in (ri )an!a. (enior civilian public service positions are now ta!en by military personnel. The =e"ence Ministry is "orming companies and getting contracts to deliver services in a variety o" areas, including the hospitality trade and construction wor!, bypassing accepted "inancial procedures with the approval o" the Treasury, the $abinet and the resident. Despite the endin# o the armed con lict and the li tin# o the emer#ency the President continues, each month, to use his power under the Public &ecurity Ordinance to call out all the armed orces or the maintenance o public order in all 01 administrative districts o the country) This militarisation is contrary to the norms o" democratic governance and also contributes to the erosion o" civilian institutions. (esponsibility o the Government and the people These issues must be seriously e,amined by the public in "orming an opinion as to whether there is an urgent need to rein"orce norms and institutions o" democratic governance."he issues raised above indicate the debilitatin# impact o an authoritarian 2'ecutive Presidency, actin# as i the Constitution and the laws o the land are irrelevant in #overnance) The government must address these issues rather than ma!e public statements on the vibrant nature o" our democracy. $iti/ens o" this country, while they may have di""erent political a""iliations, must not legitimise this erosion o" democracy. #t is true that the resident and 'overnment have registered election victories. 1hether, and the e,tent to which, the 'overnment has popular support, is not relevant to the duty citi/ens have to scrutinise its record. 2""irmation, even by silence, o" governance that contravenes the $onstitution, other laws, and binding international treaty obligations, can only lead to a complete brea!down o" democratic values and institutions. 2s citi/ens we should not accept government

statements on commitments to democratic governance when there is no e""ort at all to address the above issues. $onsenting to this type o" governance as a legitimate "unction o" the residency when the $onstitution and the laws o" the land do not con"er such powers on the resident can only lead to a brea!down o" democracy in our land. Jayantha =hanapala @svatte<aratch ro"essor (avitri 'oonese!ere =r. '.

On behalf of Friday Forum, Mr. Jayantha Dhanapala, Professor Savitri Goonesekere, Dr. G. Usvatte arat!hi, Professor "amena Guneratne, Ms. Suriya #i!kremasin$he, %t. %everend Duleep de "hi!kera, Professor &r'una &lu(ihare, Mr. &hilan )adir$amar, Mr. J.". #eliamuna, Dr. &. ". *isvalin$am, Ms. &nne &bayasekara, Mr. +issa Jayatilaka, Ms. %adhika "oomaras(amy, %ev. Dr. Jayasiri Peiris, Dr. Jayampathy #i!kramaratne, Dr. Upatissa Pethiya$oda, Professor. Gananath Obeyesekere, Mr. Danesh "asie "hetty, Professor %an'ini Obeyesekere, Dr. Deepika Uda$ama, Ms. Sithie +iru!helvam, Ms, Damaris #i!kremesekera, Dr. Selvy +hiru!handran, Mr. Fai, ur %ahman, Ms. Manouri Muttettu(e$ama, Ms. Shanthi Dias, Mr. Javid -usuf, Mr. "handra Jayaratne,