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Questions of Freedom: Problems in Sri Lanka’s

Constitution, Laws and Institutions

Featured image courtesy Hemmathagama.lk

RAVI RATNASABAPATHY-11/05/2018

“Commander in chief of the army, navy and militia, with the power of making
treaties and of granting pardons, and to be vested with an authority to put a
negative upon all laws… is in reality to be a KING” (An Old Whig,1787)
Citizens of Sri Lanka should heed this warning to the framers of the US
constitution.

The Sri Lankan Presidency was, until recently, a fixed executive, not dependent or
answerable to parliament and not removable except for limited reasons. Head of
the State, the Head of the Executive and of the Government, and the
Commander-in-Chief of the Armed Forces. With the power to appoint higher
officials, Supreme Court judges, the Police Commissioner, Elections Commissioner
it was, essentially an elected monarch.

Did Sri Lanka throw off the British crown only to replace it with local one barely
half a century later?

In theory at least, the colonial administrators of Ceylon were answerable to a
British Parliament. For all practical purposes, Sri Lanka’s presidency answered to
no one.

The 19th amendment restored some independence to institutions but mere
independence is insufficient. Their proper functioning is dependent on the
attitudes and competencies of their members, a question that must be
addressed. The 19A is also incomplete, to erase the legacy of decades of
authoritarian rule and secure rights further reforms beyond the constitution are
needed.
The problem is best understood if viewed from the perspective of what matters
to citizens: individual freedom.

If we call ourselves “free”, how must individual freedoms to be protected and
advanced?

The basic political question

The fundamental problem in political theory is two-fold: on one hand there is a
need for an “enforcing agent” which will protect the individual from violations of
his/her liberty; on the other hand is the problem of how to ensure that any
“enforcing agent” does not in its turn become a violator of the very same liberty it
was originally set up to protect.

The Roman poet Juvenal expressed it as “Quis Custodiet Ipsos Custodes?” [who
will guard us from these guardians?].

The solution that eventually emerged is government which was :

a)accountable to the people,

b) strictly limited in its powers, and

c) a rule of law based upon notions of individual liberty and private property; both
terms carrying specific meaning.

Individual liberty

Individual liberty, simply defined is freedom from coercion.

“Coercion occurs when one man’s actions are made to serve another man’s will,
not for his own but for the other’s purpose.” (Hayek[1]).

Coercion of a citizen: aggression, threats etc may arise from individuals,
organisations (such as religious bodies) or the state.

“Free society has met this problem by conferring the monopoly of coercion on the
state and by attempting to limit this power of the state to instances where it is
required to prevent coercion by private persons”(Hayek)[2].

This means the state is given the sole right to exercise coercion, but it must do
so only to protect citizens from the coercion of others.

“Freedom is achieved by limiting some kinds of actions – coercive ones – in order
to encourage other kinds of actions – non-coercive ones. The result is the increase
of voluntary exchanges within the parameters of the law”(Lehto)[3].
Property

Property is the difference between what is mine and what is yours.

In the classical liberal sense, it is the creation of a protected private sphere
surrounded by limits that cannot be crossed without ethical transgression
(Lehto)[4]. It is a person’s entire private domain, Locke considered property rights
to consist of “life, liberty, and estate”.

Thus, you may not enter my house without my permission. Thus, you may not
borrow my car without my permission. Thus, you may not violate my body
(Lehto)[5].

Property marks the limits of permitted action in a liberal society, the personal
domain which should not be intruded into under any circumstances.

“We may well detest other people’s religion, reject their political views, abhor
their lifestyle, despise their manner and loath their habits. We may be shocked by
their ideas and opinions. We may even worry that they are damaging their own
health with drugs or their own prospects with their anti-social behaviour. But
none of these are valid reasons for using force to try to make them act
differently.”(Butler)[6]

A regime of legally protected property rights, in the wide sense used here is a
prerequisite for liberty: “the end of the law is, not to abolish or restrain, but to
preserve and enlarge freedom (Lehto).

Limiting Coercion by State

States exercise power through the machinery of state: bureaucracies, the bodies
of state and local government, legislatures, judiciaries police and armed forces.

To prevent abuse, this machinery must be controlled. Power must be limited
in how it may be used. This requires:
a) Setting rules that circumscribe its use. It cannot be exercised arbitrarily by
those in authority but only in defined circumstances and must follow set These
are laid down by laws. Laws must be universal, applying equally to all including
the government itself, no one is above the law(the rule of law).

b) Distributing authority so no single organ of government has the practical ability
to exercise power unchecked (separation of powers).

As the law is the principal check on power it is essential that the process of law-
making itself be subject to checks.

These are the principles that must be ingrained in the constitution and the
organisation of government.

How true is our system to these principles?
1. Elections and accountability to the public
The president and parliamentarians are elected which creates accountability to
the public. The weakness is that once elected, voters have absolutely no control
over their representatives, except to remove them at the next election. Requiring
candidates to submit to regular and periodic elections is important but other
checks that restrain power on a day-to-day basis are critical.
2. Separation of powers: Parliament as a check on Government.
At the apex, Parliament must be a check on government. The two are not
synonymous.

The political party that wins the most seats takes charge of government, until the
next election. The Government is responsible for running the country.

Parliament is made up of MP’s elected by voters and is there to
represent citizens interests and make sure they are taken into account by
the Government. They are not a part of government. Government ministers may
have seats in Parliament but most of their work is done in Government
departments.
Parliament must scrutinise the activities of government- examining expenditure,
administration and policy in detail, requiring the government of the day to explain
itself to parliamentarians as representatives of the citizen. This happens through:

(a) debate;

(b) questions;

(c) investigation.

Parliamentary Debates may be about legislation, government activity (policy or
implementation), or issues of public concern.

“For government the purpose of debate is often to showcase the political
argument or philosophy behind a particular policy or approach to an issue, or to
test opinion on it. For the Opposition and backbenchers it provides an
opportunity to demand an explanation of why a particular policy has been
pursued, to identify weaknesses in the evidence base or formulation of a policy,
or to provide new evidence or analysis.”(White, 2009)[7]

Parliamentary questions (in the UK tradition) allow MP’s to seek information or to
press for action. They oblige Ministers to explain and defend the work, policy
decisions and actions of their Departments.

Investigation-drilling deep into issues, is carried out by Committees.

The ultimate form of parliamentary control is that it can force individual
ministers, or even the entire Government, to resign in votes of no-confidence.

For these processes to work, MP’s must be independent. It requires opposition
MPs and backbenchers in government who will question their own policies but in
Sri Lanka this is absent.

MPs not independent
According to the prevailing version of proportional representative system, the
constituency votes for the party first and the individual later. The party hierarchy
is empowered to expel any of its members who vote against the party and replace
him/her with another member of the party. An expelled MP automatically loses
his/her seat.

As MPs who dare defy their leaders may be ejected independence is lost. Instead
of representing the citizens’ interests, they represent the party leaders interests.

Power of government strengthened in the legislature

MPs cannot defy party diktat but a Supreme Court ruling allows them to cross-
over without losing their seat. This enables the government to lure MP’s by
offering them positions, securing a permanent voting majority.

As MPs fear to question, parliament becomes a rubber stamp, not a check. Laws
are what limit power, but if parliament cannot check government bad laws may
be passed.

Under bad laws, power is legitimately exercised but oppresses citizens, a situation
of rule by law as opposed to the rule of law. The Emergency laws or the
Prevention of Terrorism Act are examples.

Committees are weak

Debates and questions allow issues to be discussed but committees are
concerned with fact-based investigation. They go into issues in-depth in a way
that Parliament, as a whole, has no time for, collecting and examine evidence to
develop an understanding of what the government is (or is not) doing under its
democratic mandate.

They can examine what the outcomes of activity (or inactivity) have been,
including by requiring explanation from government. They can summon experts,
stakeholders, demand answers from ministries, send for papers, and documents.
In the UK, there is a strong emphasis on committee reports being based on
evidence, primarily that collected by the committee. The Government is required
to respond to reports.

Committees provide the greatest scrutiny but until the 19th amendment, Sri Lanka
had only ceremonial “consultative” committees. Instead of opposition members
chairing committees (as in the UK) Sri Lanka’s were chaired by a minister of
government. The government was not required to respond to any reports,
effectively rendering them useless.

The 19th amendment has charged committees with oversight and they are now
chaired by an opposition MP which is big improvement but the reforms still fall
short.

Recommendations:

(a) Upper House of Parliament

A single chamber legislature, if unchecked, could become dictatorial. Creating an
upper house of parliament that checks and challenges government is one
safeguard to bad laws. The Soulbury Constitution had an upper house- the Senate
consisting of 30 members; 15 elected by the lower chamber and the rest
appointed by the Governor-General.

(b) Strengthening committees

Although the 19th has provided the framework of independence, creating a
culture of scrutiny is harder. A generation of MP’s who hitherto toed the official
line must learn to ask questions. This requires:

(i) Specialised training

MPs (and their staff), particularly those in committees would benefit from
specialised training. Even established democracies (UK, Australia, Canada etc)
have induction programmes for new MP’s. At a minimum Sri Lankan MP’s must be
made more familiar with their constitutional responsibilities, rules of procedure,
human rights, gender equality and public finance.

(ii) Open committee hearings to the public.

One way to improve scrutiny is to open the hearings to the public. The presence
of media and interested citizens will have a salutary effect on the participants and
allow greater public discussion on relevant issues.

(iii) Government must be required to respond to committee recommendations.

(iv) Adequate resources including access to external specialists:

Committees must have proper resources- their reports claim they are hampered
by lack specialist skills (legal, accounting etc), equipment and research capacity.
Addressing these shortcomings is a must.

(c) Creating a committee on the Constitution

Sweden has a Constitution Committee that is tasked with ensuring that the
Swedish government ministers follows the rules for the government—namely, the
Swedish Constitution and Swedish law.
The committee consists of forty-four members representing all parties of and has
the power to hold hearings, conduct investigations, and request classified
materials from MPs. The Committee can act on its own initiative or in response to
complaints from MPs (not citizens)and can initiate the prosecution of crimes
committed by MPs in their capacity as MPs (decided by the Supreme Court).
(d)A Constitution Committee of the upper house

The House of Lords Constitution Committee’s role is to examine all bills for
constitutional implications (a check against legislation that infringes basic rights)
and, even more importantly, keep under review the operation of the constitution.
This prevents the constitution itself from being undermined by ensuring that
changes are not made “without a full and open debate and full awareness of the
consequences”.
It fulfils the second limb of its remit by carrying out investigative inquiries into
constitutional issues, engaging a specialist advisers (external experts) and taking
written and oral submissions.
Examples of constitutional implications include:

(i) any substantial alteration to civil liberties, including the right to
habeas corpus and trial by jury;

(ii) alteration to the powers of the courts or measures that would place
the exercise of power beyond the purview of the courts, or which would affect
the independence of the judiciary;

(ii) alteration to the balance of power between Parliament and government,
including the conferment of unduly broad or ill-defined powers to legislate
by order.

(e) Revisions to the proportional representation system to restore constituency
ties of MP’s.

( f ) Judicial review of legislation – discussed below.
3. Separation of Powers – Judiciary not a check on power
Given the importance of laws in curbing power even two chambers is not a
sufficient safeguard. Therefore citizens should have the right to challenge laws in
the courts. The following must be dispensed with:
1. Article 80(3) prevents the people from challenging provisions in laws that
have been enacted by the legislature.
2. Article 35(1) – (3) of the Constitution of Sri Lanka conferring immunity
upon the President from civil or criminal proceedings.
3. Power of the president to pardon any offender (Article 34) undermining the
judiciary. In effect, associates of the president able call on his/her goodwill
may be above the law. Article 89 disqualifies criminals from standing for
office but the President may overrule this under article 34.
Until the 19A all supreme court judges were appointed by the president, making
the courts beholden to that office. The 19A restored this power to an
independent commission. Steps to strengthen independent commissions are
discussed in more detail below and the general remarks also apply to the
judiciary.
Recommendations to strengthen the Judicial Services Commission
1. Clear criteria for selection of judges and a rigourous recruitment process
based on competitive exams.
2. Standard criteria for promotion of judges based on merit and seniority.
3. Disciplinary procedures and standard criteria for removal of judges.
4. Initial and on-going training on new methods, laws, and related areas of
knowledge including mandatory training in international human rights law.
Limiting coercion and delivering justice: controlling the police and attorney
general
Rights are granted by laws but their enforcement depends on the system of
justice. It must protect the rights of citizens against infringement by others,
including the government and the powerful.
The police maintain the law, protecting people and their property, preventing
crime. Courts provide redress for wrongs. The Attorney General prosecutes crime.
Sri Lanka system falls woefully short, according to the ICJ “efforts to seek justice
are frustrated by investigative, prosecutorial and judicial lack of independence,
impartiality and capacity, all of which continue to contribute to a pervasive
culture of impunity within the system”[8].
Police
To provide security and maintain the rule of law the police are given special
powers: to arrest and detain and the power to use force. This monopoly on the
use of force place the police in a unique and sensitive position within the
democratic State. Adequate control mechanisms are required to ensure that
these powers are consistently used in the public interest. Risk of misuse include:
police brutality, deaths in custody, torture and ill-treatment, extrajudicial killings,
enforced disappearances and excessive use of force, including in cases of
demonstrations.
Controls include:
1. Laws specifying functions and powers of the police (in line with
international human rights laws).
2. Operational procedures/instructions that reflect the spirit and letter of the
law.
3. Complaints mechanisms, both to police leadership and external bodies.
4. Procedures on dealing with misconduct, disciplinary and criminal, overseen
by an independent body.
5. Proper training, basic and on-going.
For example the UK police are subject to the Police and Criminal Evidence Act
1984, which set the powers of police on matters of stop and search; entry, search
and seizure; arrest, detention and the questioning of suspects. Failure to follow
these rules can result in failures to secure convictions because the courts render
inadmissible any evidence which has not been fairly obtained. Codes of Practice
created under the Act govern cautioning procedures, identification parades and a
range of other responsibilities. Breach of the codes is admissible in evidence in
criminal or civil proceedings against the police.
Separately the UK has a Human Rights Act, requiring all public bodies to respect
human rights. They may be taken to court for failure.
Recommendations
1. Sri Lanka’s Police Ordinance of 1865 needs to replaced by something on the
UK lines along with standard codes of practice.
2. Sri Lanka needs proper legal protection for human rights. Currently human
rights have weak protection under the (circumscribed) fundamental rights
chapter, the ICCPR Act, No. 56 of 2007 and the Human Rights Commission .
Article 15 of the constitution restricts fundamental rights in for a variety of
reasons including parliamentary privilege, contempt of court, defamation. Article
16 allows any pre-existing laws to prevail notwithstanding inconsistency with
fundamental rights, effectively limiting its application.
The Sri Lankan ICCPR Act makes a mockery of the International Convention on
Civil and Political Rights. It contains only four main substantive rights-conferring
provisions (compared to the 20+ in the international act) and these too in
abridged form.
“The Sri Lankan bill of rights is incomplete and structurally incoherent.”(Welikala
&Edrisinha)[9].
Therefore, repeal articles 15 and 16 of the constitution, amend the ICCPR act in
line with international practice and consider a new human rights act.
6. Attorney General’s office (AGO)
The Attorney General’s Office’s (AGO’s) must be willing to pursue prosecutions
independently, even against other state actors and courts must ensure fair and
timely trial.
In Sri Lanka, the Attorney General is the Chief Legal Advisor to the Government
and appears on behalf of the Government or its agents in any Court or Tribunal. It
is also the chief prosecutor, which creates a conflict of interest where the state or
its agents are involved. The ICJ notes “a lack of will to prosecute State actors in
human rights cases, particularly those relating to the conflict”.
The practice of drawing judges from the AGO creates a further conflict: “the
judiciary has an entrenched institutional loyalty in favor of the executive”[10].
Recommendations
1. Create an independent Director of Public Prosecution (DPP) to handle all
prosecution. The police should no longer prosecute but confine themselves
to investigation. The AGO should be limited to acting as advisor to the
government.
The UK Royal Commission on Criminal Procedure, looking at the role of the police
as prosecutors, the Commission found that a police officer who carries out an
investigation, inevitably, and properly, forms a view as to the guilt of the suspect.
They felt, however, that without any improper motive the officer may then be
inclined to shut his mind to other evidence which undermines that view or
overestimate the strength of the evidence gathered. In the absence of effective
oversight, there was also greater opportunity for police corruption.
2. The DPP must be governed by a code of practice that sets out principles on
which to prosecute. One of the most important tasks is to review the
evidence in the file in order to decide whether it justifies the charge laid by
the police, applying criteria set out in the Code of practice. They must
determine if evidence is sufficient, reliable, credible and if prosecution is in
the public interest.
3. The practice of drawing the judiciary from the ranks of the AGO or the DPP
should cease.
Limiting coercion by the bureaucracy
The administrative machinery is, for many citizens, the only ‘face’ of the state that
they experience. As it is responsible for the delivery of basic services it wields real
power over the lives of ordinary people.
Lack of information-on regulations, compliance procedures; insistence on
meaningless procedures, unjustified fines or burdensome inspections that violate
an agency’s own protocols are examples of bureaucratic oppression-actions that
impose unnecessary and harmful burdens on citizens. These stem from poor
organisational practices and the attitudes of officials. Although all citizens suffer,
minorities and the poor are more frequent victims.
More sinisterly, political opponents may be persecuted using particular
provisions.
For example, the Inland Revenue Department is known to have ‘raided’
opposition politicians during the election in 2010[11]. Instead of impartial tax
administration, the powers of the department were being abused, turning it into
a tool for harassment. Similarly, the immigration department has revoked visas of
journalists and aid workers without warning.[12]
The administrative machinery needs to be neutral, delivering services without
discrimination. Politicians are inevitably subject to short term and selfish
pressures so the administration must be insulated from political pressure. The
careers of the staff should not be dependent on politicians but vested with
independent commissions, which must control recruitment (on merit, based on
competitive exams) promotions and transfers. Politicians should not be able to
appoint cronies, punish or reward officials. Independent mechanisms should
handle complaints.
The 1978 Constitution originally vested in the President the power of appointing
several “independent” commissions including the Public Service Commission, the
Judicial Service Commission, the Bribery Commission, the National Police
Commission and the Human Rights Commission.
The 19A removed that executive power. The President still appoints people to
these and other independent commissions but only those recommended by the
Constitutional Council. In establishing the Constitutional Council, the President is
entitled to appoint five members, but is required to accept the nominations of the
Prime Minister and the Leader of the Opposition.
The problem is independence will not change the staff or practices of the
bureaucracy overnight. Some staff will be political appointees only familiar with
executing political directives and may continue to do so out of habit or loyalty. A
set of general recommendations follow.
Recommendations (for all institutions)
1. Independent complaints mechanisms to check malpractice.
2. Develop Standard codes of practice and staff training to ensure work is
carried out fairly and impartially.
3. Regular reviews of procedures, simplifying and standardising rules,
increasing the use of electronic and web-based platforms.
4. An overarching civil service code which sets out the standards of behaviour
expected of bureaucrats.
5. Parliamentary Ombudsmen tasked with ensuring that the administration
acts impartially and respects citizens’ constitutional freedoms. Acts on the
basis of complaints from the public on central government agencies ,
municipal agencies, and other public institutions
Conclusion
The substance of democracy lies in systems of checks and balances; the division of
power and processes to hold those in power accountable. Although not
comprehensive, the foregoing highlights some serious shortcomings in Sri Lanka.
Citizens should press political leaders to address these issues, the ongoing
political crisis underlines urgency for further reform.

[1] The Constitution of Liberty, F. A. Hayek
[2] Ibid
[3] Otto Ilmari Lehto. 2015. THE THREE PRINCIPLES OF CLASSICAL LIBERALISM (
FROM JOHN LOCKE TO JOHN TOMASI ) : A Consequentialist Defence of the
Limited Welfare State. [ONLINE] Available
at: https://helda.helsinki.fi/bitstream/handle/10138/155211/Lehto_Kaytannolline
nFilosofia.pdf?sequence. [Accessed 11 September 2018].
[4] Ibid.
[5] Ibid
[6] Classical Liberalism, A Primer E. Butler, 2015
[7] Dr Hannah White, Institute for Government. 2009. Parliamentary Scrutiny
of Government. [ONLINE] Available
at: https://www.instituteforgovernment.org.uk/sites/default/files/publications/P
arliamentary%20scrutiny%20briefing%20note%20final.pdf. [Accessed 29 October
2018].
[8] International Commission of Jurists. 2012. Authority without accountability:
The crisis of impunity in Sri Lanka. [ONLINE] Available
at: http://www.refworld.org/pdfid/50ae365b2.pdf. [Accessed 15 October 2018]
[9] ROHAN EDRISINHA & ASANGA WELIKALA. 2015. GSP PLUS AND THE ICCPR:
A CRITICAL APPRAISAL OF THE OFFICIAL POSITION OF SRI LANKA IN RESPECT OF
COMPLIANCE REQUIREMENTS. [ONLINE] Available
at: https://www.cpalanka.org/wp-content/uploads/2015/01/ICCPR-Chapter-
Final.pdf. [Accessed 15 October 2018].
[10] International Commission of Jurists. 2012. Authority without accountability:
The crisis of impunity in Sri Lanka. [ONLINE] Available
at: http://www.refworld.org/pdfid/50ae365b2.pdf. [Accessed 15 October 2018]
[11] The Sunday Times, Sri Lanka. 21 March 2010. Tax sleuths go after
opposition candidates. [ONLINE] Available
at: http://www.sundaytimes.lk/100321/News/nws_06.html. [Accessed 15
October 2018].
[12] The Guardian, UK. 2010. Why the media silence on Sri Lanka’s descent into
dictatorship?. [ONLINE] Available
at: https://www.theguardian.com/commentisfree/libertycentral/2010/jul/12/sri-
lanka-journalists-threatened. [Accessed 15 October 2018].
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