By Lal Wijenayake –

‘Good Governance’ is respect and adherence to the basic law of the country, the constitution of the country. Our constitution envisages a democratic form of government and the basic structure of our constitution is governance based on democratic values.

Democracy entails:

(1)           The right to elect your rulers at free and fair election held from time to time.

(2)           Rule of Law.

(3)           Independence of the Judiciary.

(4)           Respect for human rights.

(5)           Separation of powers with checks and balances.

Sri Lanka has a long history of democratic governance though there has been incidents which are deviations from the norm.

But what is witnessed during the last decade is a sustained effort to challenge the basic principles of democratic rule.

The introduction of the Executive Presidential system in 1977 has shifted the center of power from Parliament to an Executive President, with no significant checks on the exercise of the enormous powers vested on the President.

The elimination of the traditional left from Parliament at the Parliamentary elections in 1977 had a significant impact on respect for democratic values and good governance.

From the 1930’s the traditional left, was in the forefront of the struggle to protect and advance liberal values with the backing the left had from local political organizations at village level and the powerful trade union movement that emerged during that period.

This led to the acceptance of ‘democracy’ and the ‘welfare state’ based on social justice as the basic norm in governance.  Any deviation was challenged in the legislature as well as outside on the streets with the trade union movement playing a major role.  This was the barrier that protected and fostered democratic rule and social justice from attacks on the system.

The elimination of the left from the legislature and the breakdown of the powerful trade union movement (as seen from the failure of the general strike of 1980, which turned out to be the turning point in the disintegration of the trade union movement) removed the barrier that defended democracy, liberal values and social justice.  Since then no movement of any significance has emerged to fill this space.

In fact, what we have seen during the last decade, is the use by governments the support of the traditional left (which has ceased to be powerful) and the trade union movement in the attack on democracy, liberal values and social justice.

The depths to which the traditional left and the movements that stood for democracy, liberal values and social justice has sunk, was seen from the support that was extended to enact the 18^th amendment to the constitution and the impeachment of the Chief Justice.

The political movements and/ or civil society movements of any significance and the lack of political activism among the masses against the erosion of democratic values and social justice has brought about the present challenge to good governance.  It has reached a stage where we are heading towards authoritarian rule.  The 2/3^rd majority that the government claims to enjoy in Parliament has gone a long way to justify the authoritarian rule.  The 2/3^rd majority is made up of a large number of members of Parliament from other parties, specially the UNP, who has crossed over to accept Ministries or Deputy Ministries.

In the Parliamentary election of 2004, the UPFA won only 105 seats as against the UNP 82, ITAK 22, JHU 9, SLMC 5, EPDP 1 and UCPF 1.  In the Parliamentary election of 2010, UPFA won 144 seats against the UNP 60, TNA 14, DNA 7.  Therefore it is seen that the people has not given a 2/3^rd s majority to the UPFA governments at these two elections.

Article 99 of the constitution has introduced a system of proportional representation in Parliament where the number of members elected from each political party has to be in proportion to the voters polled by the party.

Under Article 99(13) (a) of the constitution a member who ceases to be a member of the party from which he was elected ceases to be a member of Parliament and his seat falls vacant. The seat has to be filled by a member of the party from which he was elected.  The proviso to the Article has vested the Supreme Court with the jurisdiction, in the case of the expulsion of a sitting member from the party to which the member belonged, to determine whether the expulsion was valid.

The decision of the Supreme Court in interpreting the scope of this jurisdiction in the leading case of Gamini Dissanayake Vs. Kaleel reported in (1993) 2 Sri Lanka law reports, page 135, clearly laid down the limits of its jurisdiction and held that “Our constitution confers primacy to the political party as against the individual M.P.  The party carries the mandate of the electors and in turn gives a mandate to the MP.  The exercise of the rights of the petitioners qua MP’s is subordinate to the requirements of party discipline and their freedom to agitate matters in public is constrained by reason of their obligations to the party which they have freely undertaken to honor.” and further it held that “the rules of the Political Party are not a mere matter of contract but the basis of the exercise of the freedom of association recognized by Article 14(1) of the constitution.”  Supreme Court was rather reluctant to go into the merits of the expulsion, which is a political decision, and will only inquire into whether rules of natural justice and the procedure for disciplinary action laid down in the party constitution was followed.  But, cases decided after 1994, has moved away from the principles laid down in the early cases and has created a situation where the Court has gone deep into the merits of the decision taken by the party.

In the process many expelled MPs who crossed over to the government group continued to be in the government group without losing their seat as it should have been.  This went against the principle of proportional representation.

Therefore, the 2/3^rd majority in Parliament for the UPFA governments  was obtained unconstitutionally and the 2/3^rd majority is being used to undermine the basic values protected by the constitution, as seen in the case of the enactment of the 18^th amendment and the repeal of the 17^th amendment.

Control of Parliament over Public Finance as set out in Article 148 of the constitution was the only check of any substance that Parliament was vested with on the Executive President.  This had being made ineffective in practice by the President keeping for himself the subject of Finance and functioning as the Minister of Finance in violation of the spirit of the constitution.

The office of the Attorney General has been politicized by bringing the Attorney General’s Department under the Defense Ministry instead of the Ministry of Justice as it has been in the past.

By the repeal of the 17^th amendment and the enactment of the 18^th amendment, the President has politicized all the institutions of Government by arrogating to himself the power to appoint the Election Commission, Public Service Commission, National Police Commission, Human Rights Commission of Sri Lanka, Commission to Investigate Allegations of Bribery or Corruption and the Finance Commission and all appointments to top posts such as the Chief Justice and the Judges of the Supreme Court, President and Judges of the Court of Appeal, members of the Judicial Service Commission, the Attorney General, Auditor General, and the Parliamentary Commissioner for Administration (Ombudsman).  The provision that the President shall seek the observations of the Parliamentary Council is a mere Sham.

The impeachment of the Chief Justice and the procedure followed in doing so is in complete violation of the provisions of the constitution and in breach of all international conventions and principles laid down such as the Latimer House Principles.

We have seen in recent times the complete breakdown of the rule of law.  Rape cases, misappropriation cases, murder cases pending in Courts against members of Parliament who has crossed over to support the government were withdrawn.  Open attacks on individuals, churches, mosques, kovils and business establishments belonging to ethnic and religious minorities in the presence of law enforcement authorities and in full view of video cameras has gone unchecked.  The impunity with which these criminal acts are committed should shock the conscience of all citizens.

The political patronage that is exercised even at grass root level by politicians such as Pradeshiya Sabha members who indulge in serious crimes, is to say the least shocking.

Disappearances, abductions, extra judicial killings of persons in custody, attacks on journalists, media organizations, political opponents goes unchecked and is accepted as the norm.

We do not see any tangible intervention by either the political parties and/or civil society organizations against these developments.

In the circumstances the last resort left to a citizen to seek relief in the face of this onslaught on democracy, rule of law and human rights is the recourse to the judiciary.  Resort to the Supreme Court under Article 126 of the constitution for violation of fundamental rights is the only remedy left to a victim of administrative or executive action.  But in the face of the conduct of the legislature and the President in respect of the judgments of the Court of Appeal and the Supreme Court in the cases that came up challenging the impeachment process, creates serious doubts as to the subjection of the legislature and the executive to the decisions of Superior Courts.

In terms of Article 125 of the Constitution the Supreme Court is vested with the exclusive jurisdiction to hear and determine any question relating to the interpretation of the constitution.  During the impeachment proceedings against the Chief Justice the Legislature and the President acted disregarding the interpretation given by the Supreme Court regarding Article 107 of the Constitution in Jayaratne Vs. Anura Priyadarshana Yapa and Others’ case.

Similarly the Legislature and the President in impeaching and removing the Chief Justice acted against the Judgment of the Court of Appeal regarding the validity of the proceedings before the select committee of Parliament.  Even the polite request made by the Supreme Court to stall the proceedings before the Parliament Select Committee till the Supreme Court considered the application made by Rev. Maduluwawe Sobhitha Thero was cynically rejected by the Parliamentary Select Committee.

The manner in which the Legislature and the President has refused to comply with the judgments of the Court of Appeal and the Supreme Court has demonstrated that obedience to law by the legislature and the Executive is selective.  That is, the legislature as well as the executive can as they have done once disregard an order of the Supreme Court in respect of violation of Human Rights or any other order against the wishes of the Executive.  The resulting position is that the Executive is at liberty to decide whether the Executive will abide by a decision of a superior Court.  This is in complete breach of Rule of Law and the Constitution.

These decisions of the Legislature and the President has caused irremediable damage to the authority of our Courts and it is to be seen to what extent it will impact on day today administration of justice in the country, because the true situation that has emerge is that even a decision of a Court is not binding on persons who hold power.

In the light of the behavior of the Legislature and the Executive in the face of orders of Superior Court it is to be seen to what extent determinations made by the Supreme Court in terms of Article 126 regarding violations of fundamental rights will be accepted by the Executive.

Under Article 126 of the constitution, what the Supreme Court is expected to determine is whether a violation of fundamental rights has occurred disregarding whether it is trivial or not and disregarding its consequences on the other organs of State.  The Supreme Court is as subject to the constitution as any other organ of the state and the power that is vested has to be exercised for the purpose for which the power is vested with the trust that is reposed in the Supreme Court.  That is, if it is a violation of fundamental rights it cannot be said to be trivial or that the order will have adverse effects on the other organs of State.

The erosion of Rule of Law and in fact, democracy itself, can only be checked by an enlightened movement of the masses for restoration of Rule of Law.

To pull the country even closer to what it was, requires the:

1. Abolition of the Executive Presidential System and establishing Parliamentary Democracy where Executive Power rest with a Prime Minister and a Cabinet responsible to Parliament.

2. Repeal of the 18^th Amendment and the re enactment of the 17^th Amendment and thereby depoliticizing the institutions of government.

3. Abolition of the preferential voting system.

4. Enactment of an Act of Parliament giving the people the Right to Information.

It is seen that the establishment of the Executive Presidential System had gone a long way towards the creation of a authoritarian states.

Dr. N. M. Perera in his book ‘Critical Analysis of the Constitution of 1978’ states, “the Presidential system offers unlimited scope for wielding absolute power albeit for a limited period.  But the taste of unlimited power grows with the feeding and the lust cannot be easily satiated.  It is a matter for regret that Sri Lanka that has amassed considerable experience in Parliamentary Government and has successfully overcome the teething troubles of the early period should now be thrown down the slope of constitutional confusion in the end jeopardizing democracy itself”  – (Vide last paragraph but of the preface to the book)

It is seen that the constitution under which we are governed has become ineffective due to the fact that the Executive has rejected the authority of our superior courts and has acted in violation of the Constitution.   Therefore, we have arrived at a stage where the validity of the Constitution is relevant to the extent that the Executive chooses to honour the provision of the Constitution.   This is a complete breakdown of Good Governance.

*Lal Wijenayake (Chariman, Standing Committee on Rule of Law of the BASL) – Presentation made by Lal Wijenayake at the seminar organized by the ‘society for the integration of science and human values’ (SISHV) principles of good governance at the University of Peradeniya on saturday 30^th november 2013