Sri Lanka claims to be a democracy and the Sri Lankan Constitution says that the country ‘shall be known as the Democratic Socialist Republic of Sri Lanka’. The claim is ludicrous in light of events in the island.

Ordinary people in Sri Lanka at the heart of events, experience the wrecking of democratic principles and democratic institutions every day. The Sri Lankan government continues to violate every democratic principle and shows little regard for democratic institutions. Some of these institutions have been forced to become subservient to the politicians. Fear lurks the land and the people are unable to exercise their legitimate rights and carry on their daily lives in freedom and dignity without interference. The following statement clearly expresses the seriousness of the situation in Sri Lanka:

“It is with regret that we note the fast deterioration of processes of governance and vital public service institutions in the country. Waste of public finance due to the extravagance and greed of politicians, abductions of civilians for ransom, the functioning of independent institutions being dictated by powerful political figures, impunity of powerful elements, politicization of the public sector and many other serious lapses bear witness to the gravity of the failure of governance in the country.”

Transparency International
September 2006

Democratic principles

The 27 January 2003 report of the UN High Commissioner for Human Rights on Continuing Dialogue on the Measures to Promote and Consolidate Democracy, says that the way to build a real participatory democracy is that the system of governance must be characterized by the rule of law in conformity with human rights standards, including the right to development. A strong and independent judiciary is absolutely essential for the protection of basic human rights and, indeed, for the preservation of democracy. The report highlights the following:

Democracy and the rule of law are interdependent and both are necessary to create an environment in which human rights can be realized. States bear ultimate responsibility as guarantors of democracy, human rights and rule of law.

States must uphold their human rights obligations during periods of conflict and national emergency, in accordance with international law, the rule of law, and the principles of democracy.

The Second Expert Seminar on Democracy and the Rule of Law in February-March 2005 made several comments and recommendations regarding democratic principles [Selected recommendations appear in italics below, followed by TIC comments].

Rule of law

Recommendation: The undermining of the rule of law is a fundamental constraint to the enjoyment of human rights and humanitarian law. International human rights law and international humanitarian law together reinforce the body of rules that regulate a societal order that is predictable, orderly and that respects human rights. The two bodies of law overlap as they seek to protect human dignity and reduce human suffering.

The Sri Lankan government and the government institutions have no respect for the rule of law. In her address to the UN Human Rights Council in August 2006, UN High Commissioner for Human Rights, Louise Arbour said that the failure of the Sri Lankan government to provide the protection of the rule of law to all its citizens generates serious concerns.

The current President Mahinda Rajapakse himself has wilfully breached the Constitution of Sri Lanka. He has so far failed to appoint a Constitutional Council as required by the 17th Amendment to the Constitution. Whereas the Constitution requires appointments to bodies such as the Supreme Court and the independent commissions to be made only from persons selected and screened by the Constitutional Council, the President has made appointments in the absence of the Constitutional Council. He has appointed members of the Police Commission, Public Services Commission, Human Rights Commission and the Supreme Court. Transparency International has expressed shock and dismay and says that the political decision taken by President Rajapakse to ignore the 17th Amendment will have serious repercussions on the implementation of the rule of law. It also says that the appointments to the judiciary would affect the independence and integrity of the judiciary while having the effect of embarrassing and undermining the judiciary.

In a June 2006 letter to Sri Lankan Minister for Human Rights Mahinda Samarasinghe, the Asian Human Rights Commission (AHRC) says that the rule of law situation in the country is worsening day by day, and Sri Lanka, since becoming a Republic, primarily had two stages of the collapse of the rule of law. Firstly, by introducing new laws that do not conform to reasonable legal norms acceptable to any society based on the rule of law, through the majority power in the parliament and hence, violating the governance of the rule of law. Secondly, as it happens now, by direct illegal orders of the Executive President. The AHRC further says as follows:

“The country is experiencing the horrendous impact of the first stage now. The police and the armed forces behave, as if they are a law unto themselves. Violation of rights of the individual is fast becoming the rule rather than the exception, may it be in the village grocery or in the highest government office. The police show no interest in investigating complaints from the ordinary public other than in very grave crimes, which for the sake of their graveness the police cannot ignore. In the recent past, except in a few matters that were very heavily pushed for investigations for reasons such as the sensationality of the crime or the social standing of the victims, a very great lax in the investigation of crime is seen.

Emergency rule

Recommendation: States must uphold their human rights obligations during periods of conflict and national emergency, in accordance with international law, the rule of law, and the principles of democracy. All measures taken to suspend temporarily those human rights that may be subject to derogation must be proportional, non-discriminatory, respectful of international obligations, and strictly required by the exigencies of the situation. In no circumstances may a State suspend or deny non-derogable rights such as the right to be free from torture and slavery, the right to equality under the law, and the basic guarantees of a fair and impartial hearing before a competent tribunal. Constant civilian oversight over the military and security forces is essential.

Sri Lanka has been under Emergency rule for 11,063 days up to the end of November 2006 since independence. In other words, the Sri Lankan people have been ruled by Emergency Regulations for more than 30 out of the 58 years of independence and their rights have been systematically crushed. The land is now under Emergency rule, and the current draconian Emergency Regulations, which are primarily used against the Tamil community, have removed every tenet of democratic governance. The security forces have been given a free hand in the north-east and their abuses are not investigated or not investigated adequately.

A State of Emergency was reintroduced in Sri Lanka on 13 August 2005. The Emergency Regulations (ER) have the effect of removing judicial oversight in relation to arrest and detention, and suspend the relevant provisions of the normal law. They give authority to security force officers to arrest on mere suspicion, without warrant. The person arrested can be indefinitely detained without access and without charge. The ERs also give wide powers of preventive detention to the Defence Secretary. The ERs allow confessions to the police or any other person admissible as evidence in court and suspend the relevant provisions of the normal law. The ERs also erode the powers of the courts in relation to deaths in the custody of the security forces. Under the ERs enquiries into deaths in custody can take place only on application by the police.

The ERs encourage impunity among the security forces. The consequences of the ERs are indefinite detention without access or trial, admission of confessions obtained under torture, the absence of judicial oversight over arrest, detention and enquiry into custodial deaths and the absence of adequate penal provisions for breaches by detaining officers. These circumstances are ripe for arbitrary detention, torture, disappearances and executions to be carried out with impunity. The Prevention of Terrorism Act (PTA) has been in force despite objections by the UN, and it does not have any of the safeguards that are provided in the laws relating to terrorism in other countries. In December 2006, the government decided, in violation of the ceasefire agreement, to resume using the PTA.