A Statement by the Asian Human Rights Commission
The passing of the Amendment 19A, is a step towards undermining the authoritarian constitutional structure imposed on Sri Lanka through the 1978 Constitution. This together with the appointment of a new Chief Justice in Sri Lanka constitute two important steps towards creating a greater space for interventions of people in order to protect their dignity and their rights.
However, the debate on this constitutional amendment demonstrated that there are still a number of Members of Parliament who favour the authoritarian style of governance and resist the implementation of the will of the people as expressed through the election of January 8, 2015. The argument of these members were grounded on the same constitutional philosophy which led to the passing of the 1972 and 1978 Constitutions. That constitutional philosophy, is essentially to claim all power to be exercised by the Parliament by the Executive President of Sri Lanka. This was the constitutional philosophy which led in 1972, for taking of the control of the civil service directly under the Cabinet of Ministers by displacing the powers of the permanent secretaries that existed under the former constitutional framework. The attempt by some to have only members of parliament to function as members of the constitutional council, has the same aim of paralysing the independent functioning of all public institutions. The government which is a minority government, succeeded in damage control by keeping space for three members to the council who are not members of parliament.
This demonstrates that the struggle for creating independent public institutions is far from being realised. Yet, it also cannot be denied that an important step was taken towards that goal by the successful passing of the Amendment 19A.
The task now before democratically minded citizens, is to utilise the expanded space for the purpose of asserting their rights by way of getting the public institutions which were made defunct by the passing of the 18th Amendment to the Constitution to be revived again. Democratically minded citizens acting with the understanding of their obligations could now force considerable changes in the functioning of the public institutions.
Our concern here is for some of those vital public institutions, particularly dealing with the administration of justice, namely; the policing service, the Attorney General’s Department, and the judicial services. The independence of these institutions was significantly undermined by the 1978 Constitution and particularly by the 18th Amendment to that Constitution. The disaster caused by that is popularly known as politicisation of these institutions.
What politicisation meant was the political control of these institutions by the ruling regime which often forced the officers functioning these institutions to act contrary to their obligations under the law. Instead they were to blindly obey the orders of political superiors however, unlawful and unjust such orders may be. It is that, which can be brought to an end, now.
The citizens have a right to expect that all public officers would serve them within the framework of law. This means that citizens have a right to expect that the public officers would not deny them of their rights due to undue influences by their political superiors.
In the same way, the public officers also now have a right to expect that their political superiors will not request them to act in any manner contrary to the law. In the event of any such demand being made which are contrary to the law, then the public officers have a duty to disregard such illegal orders.
This again brings us back to the role of the judiciary for the purpose of the protection of public institutions and thereby guaranteeing that the citizens will get their entitlements respected, and practically enforced through these public institutions. In the previous decades serious interferences on judicial independence took place and this not a secret to anyone. The citizens now with the passing of the Amendment 19A have a right to expect that their courts will protect their rights by resisting any actions by public authorities which are arbitrary and contrary to the law.
The responsibility of getting the judiciary to act against arbitrary and unlawful actions of public authorities now lies on the citizens themselves. In the previous period, an attitude was widespread which regarded any attempt to resist arbitrary and unlawful actions of public authorities is futile as these authorities were merely carrying out the political directives given to them by their political superiors.
An opportunity has now arisen to establish a new alliance between the officers of the public institutions and the citizens of the country. This alliance can be based purely on the agreement to enforce the rule of law within each of the public institutions and thereby allow a greater space for citizens to seek the services of these public institutions. This would require active and energetic participation of both the citizens and the public officers.