(Submissions by Judge C.G. Weeramantry to the Presidential Commission on Lessons Learnt and Reconciliation 29th November 2010)
Trust and Confidence Building
There are many factors to which we should give our attention in this connection, for without confidence and trust that their rights will be upheld and guaranteed without fear or favour, there cannot be contentment and harmony, especially among minorities whose confidence in law and order needs to be built on firm foundations.
To achieve this there are some essential prerequisites among which are:
* A Constitution which shields all citizens from abuse of power and authority and guarantees them against any denial or erosion of their rights;
* The freedom of information and complete transparency, if achieved, can bring stable peace and create a united Sri Lanka which will be a model to the rest of the world;
It goes without saying that the Constitution of a country is the bedrock on which citizens build their sense of security. To build up trust and confidence among the citizens of a country, especially one which is emerging from a long and bitter conflict, it is essential that their rights and liberties be securely guaranteed by the Constitution. That is an essential prerequisite to nation building in the aftermath of conflict.
It so happens that this is a legal topic on which I have worked for over thirty years, especially in the context of countries of the developing world.
My first study of the impact of constitutional structures on equality and freedom was made in 1976 when, on the occasion of the American Bicentennial, the World Congress of Legal Philosophy held a world wide conference on the causes impairing equality and freedom in the three worlds of the time: the Western World, the Communist World and the Third World.
I was asked to make the presentation for the Third World and for this purpose I needed to study the constitutional structures in many Third World countries. What emerged was that in many of these countries their constitutional structures were such as to permit the growth of authoritarianism with a resulting denigration of basic rights and liberties.
Among the countries whose constitutions I studied, for the purpose of examining the reasons for the growth of authoritarianism, were Ghana, Lesotho, Tanzania, Kenya, Chile, Venezuela, Indonesia, Pakistan and the Philippines;
This study necessitated an examination of the weaknesses and gaps in constitutional structures through which authoritarian power denigrating human rights, equality and freedom could grow, free of restraints, checks and balances, which the constitution should impose. In 1976 I expanded on those studies in ‘Equality and Freedom: Some Third World Perspectives’, giving details of weaknesses in the constitutional structures of many countries. This necessitated a wide ranging inquiry at both the theoretical and practical level into the- principles, concepts and structures, essential to a Constitution if it is to guarantee the equality and freedom of every citizen.
In 1978 when President Jayewardene sought to introduce the Presidential system, I realized, in the light of these studies, that the proposed constitutional structure opened up possibilities for authoritarian rule through a violation of the principle of separation of powers and a departure from the basic tenets which had thus far protected the liberty of the subject in Sri Lanka.
I was then in Australia and I requested a meeting with him to discuss this matter, which he kindly granted me. I came from Australia for this meeting and in a long interview sought to persuade him not to pursue this course. My submission to him was that Presidential power under the proposed constitution was so great as to place democratic principles in danger. I also submitted that even if he himself would not misuse his powers, he had created a dangerous concentration of Presidential power with serious implications for the future. I was not successful in convincing Mr. Jayewardene that he should desist from this course.
In light of my study of the growth of authoritarian power in many other countries, I had my fears that this could lead to an erosion of the rule of law in contradiction of the principles we had been accustomed to since independence. I believe many instances of this surfaced from time to time, especially through the weakening of the traditional independence of the administrative service.
In February 1984 when I was a Visiting Professor at the University of Florida, when the separatist problem had reached acute proportions, I wrote from Florida to President Jayewardene suggesting the implementation of a number of principles, among which were that:
* No denial of fundamental human rights is to be without appropriate and easily accessible remedies under the law;
* For this purpose, an entire range of human rights procedures and instrumentalities will be set up, in light of the latest international knowledge and experience;
* All personnel administering the human rights machinery of the state will be completely independent in the discharge of their duties.
I believe it was the Presidential system that stood in the way of the proper implementation of these proposals. Since these steps did not take place, Presidential power continued to be exercised for 5 years on the basis of the Presidential Constitution. Without the checks and balances that would have resulted from the implementation of the proposals referred to I believe that many denials of justice and violations of human rights occurred thereafter, which were a direct result of the continuation of the Presidential system.
In 2005 on the eve of the Presidential Elections I saw the need for a candid assessment of our national weaknesses and national institutions and wrote A Call for National Reawakening, listing a number of these. Among the institutional reforms which I urged was the abolition of the Presidential system, giving a number of reasons why this needed to be done.
Among the reasons given were the lack of adequate checks and balances, the possibility of abuse of power and the possibility of personality clashes if the Prime Minister and President came from opposite parties. Around the same time I was greatly reassured to note that the Mahinda Chintana of 2005 promised the drafting of a new Constitution with a promise also of the appointment of a Constitution Redrafting Commission, a Referendum on its proposals and immediate steps to implement such new Constitution.
The excessive use of power, in denial of democratic rights, which I anticipated even in 1976 when I first studied this question received strong confirmation in the Mahinda Chinthana of 2010 which said that while the present President had been particular1y careful when exercising the powers of the “Executive Presidency”, the Executive Presidency had in the past been used “to postpone elections, to topple elected governments, to disrupt the judiciary, to ban political parties, to suppress demonstrations and lead the country towards a violent culture, to sell state institutions at under-valued prices, to defend criminals and to grant concessions to unscrupulous businessmen. Agreements that betrayed the country were entered into using the powers of the Executive Presidency’.”
This categorical statement was a very strong indictment of the Presidential system, coming as it did from the President himself, with access to all the sources of information. Indeed this Presidential statement confirmed the worst fears I had entertained, when the Presidential system was conceived, of possible abuses of Presidential power. If Presidential power was capable of being used to disrupt the judiciary, to ban political parties and to betray the country, the fundamental principles of democracy were in danger and this was the strongest possible reason for subjecting it to the necessary checks and balances.
It is true President Rajapaksa gave a categorical assurance that he himself would convert the Executive Presidency into a Trusteeship, which honours the mandate given to Parliament by being accountable to Parliament, establishing equality before the law, being accountable to the judiciary and not being in conflict with the judiciary. Trusteeship is indeed a noble concept and such an assurance by His Excellency’ the President is most honourable and welcome.
Yet it still is personal to him and does not have the force of law, however noble the intention behind it. Nor does it bind any future holder of the office.
Each of the preceding items can be elaborated on at length and I only point out here that this is an aspect which assumes prime importance in the context of reconciliation and rehabilitation.
A constitution entrenching power that can be abused by other office holders in the manner described in the Mahinda Chinthana 2010 is not an institutional measure promoting confidence and reconciliation.
Since this is an institutional, administrative and legislative field which has such deep implications for the future of a united Sri Lanka living in harmony, peace and equality under the protect of the law, I trust the Commission will give it careful and considered attention.