{"id":119043,"date":"2014-01-27T12:14:10","date_gmt":"2014-01-27T06:44:10","guid":{"rendered":"https:\/\/www.colombotelegraph.com\/?p=119043"},"modified":"2014-02-02T15:16:17","modified_gmt":"2014-02-02T09:46:17","slug":"authoritarianism-or-democratic-governance","status":"publish","type":"post","link":"https:\/\/www.colombotelegraph.com\/index.php\/authoritarianism-or-democratic-governance\/","title":{"rendered":"Authoritarianism Or Democratic Governance?"},"content":{"rendered":"

By Savitri Goonesekere<\/span><\/a>,\u00a0Jayantha Dhanapala<\/span><\/a> and\u00a0G. Usvatte-aratch<\/a><\/span>\u00a0–<\/strong><\/p>\n

There has been,\u00a0in recent times, public discussion in regard to whether\u00a0our country\u00a0is moving towards an authoritarianism that undermines democratic governance. The President, Ministers and government spokespersons have consistently denied this allegation. They refer in particular to the recent elections in three provinces as indicative of a functional and vibrant democracy responsive to the needs of the people. Infrastructure\u00a0development that has taken place is also cited. The recently concluded CHOGM hosted by Sri Lanka is considered an indication that Sri Lanka has achieved significant international stature as a country whose governance follows Commonwealth values.\u00a0\u00a0These values as stated in the final CHOGM communiqu\u00e9 refer in particular to democracy, human rights, tolerance, freedom of expression, separation of powers, rule of law, good governance, and sustainable development.\u00a0The question whether this conforms to reality deserves an objective assessment. Rather than engaging in\u00a0either\u00a0assertions or denials of authoritarianism, we as citizens, and the government, should take serious stock of significant current trends in governance,\u00a0and evaluate whether there is truth in this allegation, and if so, what can be done to arrest it. The\u00a0Friday\u00a0Forum wishes to\u00a0raise\u00a0selected\u00a0areas of concern which merit public scrutiny and discussion.<\/p>\n

\"Mahinda\"<\/a>Our Constitution, international norms and standards, and Presidential power<\/b><\/p>\n

It is often said in public statements that international bodies exceed their mandate in reviewing the governance\u00a0situation in Sri Lanka, and that these norms and standards have been determined by western countries and are being used to undermine the sovereignty of our small country.\u00a0We agree that there is no justification for a highly politicised and selective approach to the enforcement of human rights.\u00a0While the government may protest such an approach, this is no justification for the\u00a0government\u00a0to violate its own obligations under our Constitution and under international law to respect and promote human rights.\u00a0Our Constitution in Chapter III guarantees and provides for the enforcement of human rights.\u00a0Sri Lanka is also bound by the norms and commitments of international human rights treaties that the State has ratified.\u00a0\u00a0Article 27(15) requires the Sri Lankan state\u00a0to foster respect for international law and treaty obligations in dealings among nations. Equitable and inclusive development demands that economic growth and development activities do not result in a violation of these obligations\u00a0under the Constitution and\u00a0international law. The President, in taking his oath of office, accepts that he will faithfully perform his duties and discharge his functions in accordance with the Constitution and the law (Article 32(1) and the Fourth\u00a0Schedule to the Constitution). Our Constitution further says that he must do all such acts not being inconsistent with the Constitution or written law, as by international law, custom or usage he is required to do\u00a0(Article 33 (f)). The popular perception that Presidential power under the Constitution is unlimited is incorrect.<\/b><\/p>\n

Economic growth and an\u00a0improvement of infrastructure cannot justify a violation of the obligations of good governance according\u00a0to our\u00a0Constitution and international law. “Equitable and inclusive development” requires government to implement the civil and political, and social and economic and cultural, rights of the people. Allocation of financial resources for health and education is as important as resources for strengthening the criminal justice system. The indivisibility and interdependence of all these rights must be recognised in plans and policies on development.\u00a0People’s\u00a0participation is critical in setting priorities for social and economic change. There must be informed debate on official policies regarding use of national resources and financial allocations for different sectors.<\/p>\n

Breakdown of law and order and political interference in the administration of criminal justice<\/b><\/p>\n

The breakdown of law and order has been a source of public comment and concern for many months. Placing the Attorney General\u2019s department under the President\u2019s office has eroded public confidence in the impartiality of criminal investigation\u00a0and prosecutions\u00a0without political interference.\u00a0Impunity for violence against media personnel and human rights defenders has been raised nationally and internationally.\u00a0The cancellation of visas for foreign participants invited by the Bar Association to a meeting on the rule of law and democratic governance during CHOGM reinforces the perception that the government will not tolerate critical comment on issues of public concern or protect those persons seeking to claim their right to freedom of speech and association.<\/p>\n

The LLRC recommended significant changes in this sphere including the de-linking of the police from the Ministry of Defence. The recent solution of creating a new Ministry of Law and Order placed under the\u00a0President,\u00a0with\u00a0a\u00a0Secretary\u00a0of this Ministry\u00a0who is an ex military commander,\u00a0does not follow recommendations\u00a0of the LLRC, or address the issue of politicisation in enforcing the criminal law. The events in Weliweriya<\/span><\/a> where the Police was replaced by the army and contributed to a violent suppression of a peaceful protest must surely be addressed as undermining the obligations of a government in a democratic state to preserve law and order while protecting its citizens.<\/p>\n

The judiciary<\/b><\/p>\n

The recent proceedings to\u00a0remove the\u00a0Chief Justice highlight\u00a0the need for significant amendments in relevant Constitutional provisions in order to ensure fairness\u00a0and justice.\u00a0The failure to make the necessary amendments to ensure a just and fair inquiry in\u00a0impeachment proceedings against superior court judges undermines public confidence in the government\u2019s commitment\u00a0to ensure the core values of judicial independence and integrity.<\/p>\n

Our country has a solid jurisprudence on human rights created by distinguished judges who served on our Supreme Court, with the contribution of lawyers who were encouraged to litigate on behalf of victims of human rights violations. There are reliable reports from lawyers and litigants that it has now become increasingly difficult for citizens and lawyers to seek remedies in the courts\u00a0even\u00a0for\u00a0alleged\u00a0infringement of fundamental rights\u00a0relating to torture and death in prison custody.<\/p>\n

Public administration<\/b><\/p>\n

The Eighteenth\u00a0Amendment<\/span><\/a> removed the term limit of the Presidency while preserving its immunity from legal action. It also did away with the independent public service commissions.\u00a0\u00a0This Amendment reinforced the concept of an\u00a0all-powerful\u00a0Executive Presidency, 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 of the President and the Cabinet, and that the\u00a0laws of the land do not apply to such decision-making.\u00a0The perception that Constitutional norms and law and regulations can be disregarded is reflected in non-consultative policy making in key areas. This is seen for example in appointments to senior public service positions,\u00a0including posts such as government agents in the North,\u00a0which are filled by persons who are not from the Sri Lanka Administrative Service, but those with a military background. Many key diplomatic posts at all levels have been given to persons outside the service\u00a0with political connections, thus undermining the concept of a professional public and foreign service\u00a0selected through a competitive process from among qualified persons.<\/p>\n

In areas such as environment and women\u2019s rights, arbitrary decisions have been made with no accountability.\u00a0An example is the recent regulation of the Ministry of Foreign Employment denying women with children the right to travel overseas for migrant work without proof of the arrangements made for their minor children.\u00a0The plight of\u00a0minor\u00a0children is a tragic consequence of the failure of our economy over a long period of time to provide\u00a0reasonable\u00a0livelihood opportunities for\u00a0low-income\u00a0men and women.\u00a0Our Maintenance Act 1999 places a joint and shared parental obligation on both parents for the care of children. This policy\u00a0decision appears\u00a0to have been made on a Cabinet directive, which perceives women as the only persons responsible for parenting and childcare in the family.This policy undermines\u00a0the equality clause (Article 12) in our Constitution, and the legislation on family support. It also\u00a0undermines Sri Lanka\u2019s commitments under the Women\u2019s Convention (CEDAW),\u00a0and Goal 3 on the Empowerment of Women in the Millennium Development Goals (MDGs).Two key policy making bodies, the National Committee on Women and the National Child Protection Authority,\u00a0have not sat together and sought a consensus on how to ensure effective child care without undermining the livelihood opportunities of women.\u00a0These two bodies are supposed to have official representation from key line ministries dealing with this subject, but increasingly chairpersons of policy bodies are making statements on policy disregarding the principle of consultative policy making.<\/p>\n

There is an atmosphere of public administration in which disregard of regulatory frameworks is considered legitimate because Presidential authorisation or Cabinet approval has been obtained for decisions on key issues which affect public concerns, including service delivery. Consequently, statutory bodies are not performing their responsibilities to the public as required by the law. The decline in public administration is manifested in the behaviour of Cabinet Ministers who have a leadership role in State institutions. They often behave in a manner unbecoming of their public office, and make public statements\u00a0which are sexist and sometimes obscene, humiliating women as well as officials, including visiting dignitaries. They bring the country and the administration into disrepute, but are never held accountable for their behaviour, which is often trivialised by the government and even the public. This reinforces the culture of impunity for dereliction of duty.<\/p>\n

Universities and university governance<\/b><\/p>\n

The decline in public administration is replicated in the public university system.\u00a0\u00a0Universities are governed by the Universities Act and relevant Ordinances.\u00a0They are also members of the Association of Commonwealth Universities.\u00a0Sri Lankan Universities are expected to follow the standards and procedures set by statutes and the Constitution of our country, which confer rights on academics and duties on university administrators.\u00a0The fundamental value enshrined in the legislation and the Constitution is respect for university autonomy, though the State funds these public institutions.<\/p>\n

Recent events show a pattern of disregard,\u00a0by the Government and the University Grants Commission (UGC),\u00a0for this key constitutional, legal and commonwealth value system on academic autonomy in universities.\u00a0This disregard includes appointments of Vice Chancellors on the basis of political affiliation rather than academic merit, extension of the services of a Dean in violation of the Universities Act, the imposition of State security services on universities, and interference with freedom of speech and expression. Politicisation of academic appointments, including professorial posts and posts of Heads of Departments,\u00a0is another feature that is a cause\u00a0for\u00a0concern.\u00a0Post CHOGM reflections in a meeting of academia with the UGC, with the participation of the President and Ministers, indicate that the UGC is now proposing to \u201cuplift the status of Commonwealth universities\u201d by focusing (among other issues) on the theme of democracy, good governance, and the rule of law.\u00a0\u00a0As citizens we must ask whether this public rhetoric conforms to the reality in Sri Lankan universities.<\/p>\n

The appalling interference with universities is a manifestation of political authoritarianism in the governance of important public institutions.\u00a0The totally erroneous perception that disregard of constitutional and legislative procedures is permitted in an all powerful Presidency, and that Ministerial decision-making outside the legal framework is permissible, has contributed to passivity within university bodies which earlier would not have tolerated these intrusions.\u00a0The decline in leadership in universities at the level of Vice Chancellors, and the undermining of institutional responsibilities of University Councils, Senates and Faculty Boards, has had and will continue to have, a serious impact on the State university system.\u00a0The politicisation of appointments to University\u00a0Councils,\u00a0which is very apparent in recent years,\u00a0has\u00a0made the governing bodies of these institutions\u00a0incapable of giving\u00a0the advice and guidance necessary for university governance.<\/p>\n

Religious intolerance<\/b><\/p>\n

The growing environment of religious intolerance,\u00a0and\u00a0the\u00a0alarming\u00a0disregard of religious and cultural diversity and erosion of values of respect for diversity,\u00a0have not received an effective response from the government.\u00a0There has been a shocking silence on the part of the government even after the most recent violent\u00a0attacks on churches in Hikkaduwa<\/span><\/a>.\u00a0The recent interview on Al Jazeera where the President stated that violent incidents of religious intolerance occurred because of the rape of a girl child, and also that such violence was an inevitable consequence of such acts, is particularly shocking.\u00a0\u00a0This, apart from being inaccurate, is a Presidential justification of persons illegally taking the law into their own hands, and an admission that the\u00a0government\u00a0has abdicated its role in maintaining law and order and protecting its citizens. That leading members of the government support some extremist groups undermines the commitments of the government to ensure the safety and security of all communities.<\/p>\n

Culture and tradition<\/b><\/p>\n

Justifications of tradition and culture are used to undermine the\u00a0human rights\u00a0of some groups such as women and children.\u00a0\u00a0This is seen in the ineffective responses to sexual violence against women and children in public places.\u00a0There are reliable reports that the campaign for zero tolerance for domestic violence is undermined because important politicians question the role of the state\u00a0in preventing such violence. The recent restriction on women\u2019s right to seek employment in overseas migration has already been referred to.<\/p>\n

Extremist and chauvinistic cultural arguments have also been used to undermine the reproductive health of women and the family planning programmes of this country.\u00a0\u00a0A 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 of the country without such support. We are regressing from our family planning achievement and this has serious health and demographic implications.<\/p>\n

Militarisation<\/b><\/p>\n

The issue of militarisation of public administration has been raised in several statements of the\u00a0Friday\u00a0Forum<\/span><\/a>. \u00a0There is ample evidence that the military, which in\u00a0peace time\u00a0should not perform civilian duties, is being used for that purpose in Sri Lanka.\u00a0Senior civilian public service positions are now taken by military personnel. The Defence Ministry is forming companies and getting contracts to deliver services in a variety of areas,\u00a0including the hospitality trade and construction work, bypassing accepted financial procedures with the approval of the Treasury, the Cabinet and the President.\u00a0Despite the ending of the armed conflict and the lifting of\u00a0the emergency\u00a0the\u00a0President continues,\u00a0each month, to\u00a0use his power under the Public Security Ordinance to call out all the armed forces for the maintenance of public order in all 25\u00a0administrative districts of the country.<\/p>\n

This militarisation is contrary to the norms of democratic governance and also contributes to the erosion of civilian institutions.<\/p>\n

Responsibility of the Government and the people<\/b><\/p>\n

These issues must be seriously examined by the public in forming an opinion as to whether there is an urgent need to reinforce norms and institutions of democratic governance.The issues raised above indicate the debilitating impact of an authoritarian Executive Presidency, acting as if the Constitution and the laws of the land are irrelevant in governance. The government must address these issues rather than make public statements on the vibrant nature of our democracy. Citizens of this country, while they may have different political affiliations, must not legitimise this erosion of democracy.\u00a0It is true that the President and Government have registered election victories.\u00a0Whether, and the extent to which, the Government has popular support,\u00a0is not relevant to the duty citizens have to scrutinise its record.\u00a0Affirmation, even by silence, of\u00a0governance that\u00a0contravenes the Constitution, other laws,\u00a0and binding international treaty obligations,\u00a0can only lead to a complete breakdown of democratic values and institutions.\u00a0As citizens we should not accept government statements on commitments to democratic governance when there is no effort at all to address the above issues. Consenting to this type of governance as a legitimate function of the Presidency when the Constitution and the laws of the land do not confer such powers on the President can only lead to a breakdown of democracy in our land.<\/p>\n

Jayantha Dhanapala \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Professor Savitri Goonesekere\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Dr. G. Usvatte-aratch<\/p>\n

On behalf of Friday Forum,<\/p>\n

Mr. Jayantha Dhanapala, Professor Savitri Goonesekere, Dr. G. Usvatte-aratchi, Professor \u00a0Camena Guneratne, Ms. Suriya Wickremasinghe, Rt. Reverend Duleep de Chickera, Professor Arjuna Aluwihare, Mr. Ahilan Kadirgamar,\u00a0 Mr. J.C. Weliamuna, Dr. A. C. Visvalingam,\u00a0\u00a0 Ms. Anne Abayasekara, \u00a0\u00a0Mr. Tissa Jayatilaka, Ms. Radhika Coomaraswamy, Rev. Dr. Jayasiri Peiris, <\/b>Dr. Jayampathy Wickramaratne, Dr. Upatissa Pethiyagoda, <\/b>Professor. Gananath Obeyesekere, Mr. Danesh Casie Chetty, Professor Ranjini Obeyesekere, Dr. Deepika Udagama,\u00a0 Ms. Sithie Tiruchelvam,\u00a0 Ms, Damaris Wickremesekera, Dr. Selvy Thiruchandran, Mr. Faiz-ur Rahman, Ms. Manouri \u00a0Muttettuwegama, Ms. Shanthi Dias, Mr. Javid Yusuf, Mr. Chandra Jayaratne,<\/p>\n","protected":false},"excerpt":{"rendered":"

[…]<\/p>\n","protected":false},"author":22,"featured_media":50392,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[3,46,8],"tags":[],"class_list":["post-119043","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-colombotelegraph","category-constitutional-reforms","category-editorial"],"yoast_head":"\nAuthoritarianism Or Democratic Governance? - Colombo Telegraph<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.colombotelegraph.com\/index.php\/authoritarianism-or-democratic-governance\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Authoritarianism Or Democratic Governance? - Colombo Telegraph\" \/>\n<meta property=\"og:description\" content=\"[…]\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.colombotelegraph.com\/index.php\/authoritarianism-or-democratic-governance\/\" \/>\n<meta property=\"og:site_name\" content=\"Colombo Telegraph\" \/>\n<meta property=\"article:published_time\" content=\"2014-01-27T06:44:10+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2014-02-02T09:46:17+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/www.colombotelegraph.com\/wp-content\/uploads\/2012\/08\/Savitri-Goonesekere.jpg\" \/>\n\t<meta property=\"og:image:width\" content=\"183\" \/>\n\t<meta property=\"og:image:height\" content=\"204\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"COLOMBO TELEGRAPH\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"COLOMBO TELEGRAPH\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"14 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\/\/schema.org\",\"@graph\":[{\"@type\":\"WebPage\",\"@id\":\"https:\/\/www.colombotelegraph.com\/index.php\/authoritarianism-or-democratic-governance\/\",\"url\":\"https:\/\/www.colombotelegraph.com\/index.php\/authoritarianism-or-democratic-governance\/\",\"name\":\"Authoritarianism Or Democratic Governance? 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