Harsha Gunasena (Daily FT)
The President told the SLFP Executive Committee meeting that he has shown his ‘backbone’ to the international community by rejecting the UNHRC Chief Zeid bin Ra-ad Al Hussein’s recommendation for a hybrid court to probe war crimes allegations in Sri Lanka.
“Two weeks ago the UN Human Rights High Commissioner in his report on Sri Lanka called for a probe by foreign judges. Within 24 hours, I rejected it saying I am not prepared to bring foreign judges here,” he said. “There can be people without a backbone. But I am not ready to go forward with those without a backbone.” (Daily Mirror, 4 March)
The High Commissioner’s report to the 34th session of the Human Rights Council includes the following comments as well:
“The fulfilment of transitional justice commitments has, however, been worryingly slow, and the structures set up and measures taken during the period under review were inadequate to ensure real progress.
“Party politics, including the balancing of power between the different constituencies of the coalition in the run-up to constitutional reforms, have contributed to a reluctance to address difficult issues regarding accountability or to clearly articulate a unified position by all parts of government. Unclear and often contradictory messages have been delivered on transitional justice mechanisms by the President, the Prime Minister and various members of the Cabinet. Similar contradictions are visible in policy development. This tension was apparent both in the draft counter-terrorism legislation and on the proposed amendment to the Criminal Procedure Code. Public messaging around transitional justice and reconciliation has been generally confusing and at times contradictory.”
Devolution of power
The main task the country has in its hand is adaptation of a new constitution to address the grievances of the ethnic minorities and introducing a new governance structure. We know that the steering committee of the constitutional assembly cannot give a draft constitution although it received the reports of all six sub committees, due to the reason of the stance taken by the SLFP.
The argument put forward by the SLFP is that they are no willing to go for a referendum. The two issues we have is devolution of power and abolishing of executive presidency. There were two key judgements given in relation to these two issues, judgement on the 13th Amendment to the Constitution and the judgement on the 19th Amendment to the Constitution.
In the case of the 13th Amendment to the Constitution, there were nine judges to the bench and four judges were in favour and four judges were against. Justice Parinda Ranasinghe delivered an independent judgement which was in favour of the amendment with certain reservations. Therefore his judgement prevailed.
If we were to go an inch beyond the provisions of the 13th Amendment it is obvious that there should be a referendum. By refusing a referendum, are we saying that we will not devolve power anything more than the provisions of the 13th Amendment?
The irony is this. The Chief Ministers of the Provinces governed by the SLFP proposed to the Sub-Committee on Centre-Periphery Relations appointed by the Steering Committee of the Constitutional Assembly that the powers of the Governors of the Provinces should be reduced drastically. The Chief Minister of North Central Province recommended that the post of the Governor should be abolished and the President should appoint the Chief Minister. The reason for this recommendation is this.
Article 154 C of the constitution states as follows: “Executive power extending to the matters with respect to which a Provincial Council has power to make statutes shall be exercised by the Governor of the Province for which that Provincial Council is established, either directly or through Ministers of the Board of Ministers, or through officers subordinate to him, in accordance with Article 154F.”
This overwhelming authority given to the Governor is questioned by none other than the Chief Ministers of the SLFP. Therefore we are talking of devolution of power to the provinces for the benefit of the provinces and as a by-product we devolve the power to the Northern Province where the majority are Tamils.
The issue is we cannot devolve power further without getting the approval from the people at a referendum. President himself said that the country had to suffer this much due to the previous party politics of our leaders where Prime Ministers S.W.R.D. Bandaranaike and Dudley Senanayake had to abandon the power sharing proposals.
Therefore the President has to show his backbone to the party members of the party headed by him and tell them that as a country we have to take this opportunity to have an ethnic reconciliation. It is a prerequisite of economic development that we should have a solid ethnic reconciliation underneath.
Theme cartoon googled and added by TW
Abolishing of executive presidency
The President has pledged that the Executive Presidency will be abolished. During the period of 100 days the 19th Amendment was brought in and the powers of the President was curtailed amidst great reluctance and sabotage by the members of the party headed by him. An approach he has taken was commendable to curtail his own powers which brought international fame to him.
However based on the judgement given on the 19th Amendment to the Constitution it was clear that if we need to curtail more the powers of the president or to abolish the executive presidency we have to go for a referendum. In fact the Supreme Court had rejected certain amendments of the draft 19th Amendment which gives more powers to the Prime Minister transferred from the President.
Therefore the President should show his backbone once again to his party members and tell them that it is mandatory to go for a referendum in order to fulfil the promises he has given to the general public.
If we take the examples of the Raviraj murder case, Prageeth Eknaligoda murder case and Lasantha Wickrematunge murder case, involvement of the members of the intelligence services is clear. It was evident in the Court that there was very little support to the proceedings from the Sri Lanka Army. We all know that it is not the intelligence officers who did the job who are responsible but the person/s who ordered to do the job should be responsible. The President should show his backbone to the Army and order them to give the full support to the Court proceedings.
It is true that the armed forces had done a great service in defeating an armed struggle against the democratically elected Government of Sri Lanka and we all should have a great respect for them. The value of the service is greater since it was believed then that the LTTE was undefeatable. However the credibility of the armed forces is internationally not up to the level of the job they did because of the allegations of violation of international law.
The behaviour of some members of the armed forces were evidenced in the cases mentioned above. Hence in addition to ensure justice to the victims of the armed conflict, we all have a task of clearing the good name of our armed forces. One way of establishing that credibility is inviting foreign judges as members of the commission.
It was reported in Daily Mirror and Sunday Times on 4 March and 6 March respectively that the Prime Minister has mentioned that a referendum is needed to establish a Hybrid Court. There is no necessity to have a referendum to invite foreign judges to a mechanism established by Sri Lankan law. We have precedence in this respect since Sirima Bandaranaike Government invited foreign judges to a commission to probe the murder of Prime Minister Bandaranaike. However it looks like this is not feasible politically based on the political stance of the President.
At the same time we have the right to expect the display of same solid backbone from the President in other issues discussed as well. It is pertinent to mention here that it is also the responsibility of the civil society to take the message of the new constitution and the devolution of power to the people at large in general and to the people who contributed to bring this Government to power in particular.