Book Review

Public Confidence in the Judicial System

Sri Lanka: A Nation in Conflict
Author: H.L. de Silva

Deshamanya H. L. de Silva, P.C. is like a devoted physician caring for his patient, and safeguarding the vital organs of the patient from infection and malaise. When the vital organs function properly, good health is assured.

In his case the patient is the body politic of Sri Lanka, its society and the vital institutions are, in the order in which they appear in the collection of essays, legislative sovereignty, territorial integrity, democratic governance, judicial independence and rule of law.

The sub-title of the book, 'Threats to Sovereignty, Territorial Integrity, Democratic Governance and Peace', sums up the analogical reference.

This review is from a lay perspective. There is much in the book to inform the general reader of the implications of the national issues that form the subject matter of the essays, which are necessarily couched in legal language.

Those steeped in the study of Law and Jurisprudence will, of course, find in it an esoterism that only a master can convey.

Legislative supremacy of Parliament

There was a time, especially when the proposed new Constitution of 1997 - 2000 was mooted, when some legal experts argued that the difficulty of obtaining a two-thirds majority could be circumvented by obtaining an approval at a referendum, followed-up by a passage in Parliament with a simple majority. Kelsen's 'theory of necessity' was invoked in support of this contention.

HL discusses the legal issues of this debate in chapter 2, taking special care to explain the specific conditions in which the concept of 'necessity' could be invoked (p.16), and pointing out that such pre-conditions did (and does) not obtain in the Sri Lanka context.

The message is clear: Constitutional amendment should follow the procedure laid down in the relevant Constitution and any difficulty in such procedure should not be blown up into an impossibility for reasons of political expediency.

The exception to this rule, seen in the adoption of the autochthonous Constitution of 1972, is adequately justified (p.22).

There is an interesting discussion (pp. 90-94) on whether the power of a Provincial Council to make statues in respect of subjects appearing in the Provincial List is a curtailment of the legislative power conferred on Parliament by Article 75 of the Constitution.

The right to secede

Ever since the Vaddukoddai Resolution of 1976, the right of the Tamil community to secede from the Sri Lanka State has been canvassed amidst controversy. This right, it was argued, flowed logically from the Right of Self Determination enshrined in the UN Charter, because the Tamil community constituted a 'Nation'.

HL discusses this notion with precision. His position is that 'self-determination' has a colonial connotation, meaning that it implies a right to break free from colonial subjugation and forcible annexation.

It has no applicability to different communities living side by side (even with mutual antagonisms) in a historically defined territory. Thus "the right to secede would be exercisable only in a colonial context".

The reference to the Canadian Supreme Court ruling (August-1998) on the right of secession of Quebec in very illuminating (p.43). A state whose Government represents the whole of the people (through representative institutions) and reorganises the principles of equality and non-discrimination is entitled to have its territorial integrity recognised by other States.

There is commendable balance when he postulates defence capability and a 'just and equitable treatment of minorities' as 'the only sure and certain guarantee against secession.'

Chapter 4 on 'Separatism' is a continuation of this theme and contrasts the over-riding nature of the UN Charter (1945) in relation to the two covenants on Human Rights(1966).

Chapter 5 is a reproduction of the Lalith Athulathmudali Memorial Oration of November 2005, and is a re-assessment of the threat of separation after the CFA of February 2002 and subsequent developments. He is almost apprehensive of an UDI being called by the LTTE and proceeds to evaluate the options available to the Sri Lanka State in such an eventuality.

He predicts that the International Community would be conditioned by considerations of expediency and decide the matter on 'whether the people within it are able to exercise effective control of the dismembered portion' (p.78). However, he posits six grounds on which an UDI could be challenged effectively (pp.83-84) at the forum that matters most -i.e. at the UN when recognition as a new member is sought for the breakaway group.

His last word on this question is worth a full quotation (p.64): "The real safeguards against separatism are not to be found entirely is Constitutional provisions and legal safeguards. It needs the much more difficult tasks of creating an environment of trust, tolerance and good will that will generate a sense of solidarity and togetherness among all communities in the island."

Devolution and the 13th Amendment

HL's views on devolution are well known. He genuinely feels that when dealing with an organisation like the LTTE extra care should be exercised to safeguard devolution from becoming a stepping stone to the ultimate break-up of the country. His nationalist ardour would not countenance even the slightest advance towards the catastrophe of such a break-up, because its demonstration effect could set in motion other separatist movements in the Muslim South-East and the Central Highlands leading to a complete disintegration of the country.

He has been responsive to the opposite argument that devolution may assuage ethnic discord and serve as a facilitator of national unity as has often being projected using the Indian example. His view is that "the Indian Constitution confers far-reaching powers of overall control on the Centre" to avert separatist tendencies, which controls were lacking in the Sri Lankan devolution efforts up to year 2000.

Chapter 8 provides an excellent overview of the devolution efforts up to the end of the previous administration. He is clearly for substantial devolution, but within a unitary state. Only one matter seems to be unresolved. At the Lalith Athulathmudali Oration of November 2005 he was of the view that devolution on the lines of the 13th Amendment afforded 'the most viable option for a long-term settlement and the restoration of a durable peace' (p. 75). Today, he has qualified this view in advocating devolution 'to bodies elected for administrative districts as the territorial unit rather than upon a provincial basis' (p.125).

Constitutional deadlock

Chapter 11 deals with the potential for conflict that is inherent in the Constitution whereby the President is to exercise executive power along with a Cabinet of Ministers drawn from Parliament, a marriage of two institutions deriving their authority from two distinct and separate electoral processes. The relevant provisions in the French Constitution are examined to demonstrate how the French have a clearer definition of the powers of the Prime Minister vis-a-vis the President.

Written as it was in June 2003 when the then President was trying to assert herself in the face of a hostile majority in Parliament, this piece in isolation may create the wrong impression that he was a proponent of unfettered Presidential power. On the contrary on many an occasion, in the period 1977 - 89, he spoke out against the unbridled power of the Presidency - of which the worst feature was the unprincipled referendum to extend the life of the then Parliament. It was not the location of executive power that was material (be it the Presidency or Parliament), but the need to check its abuses.

The State and foreign interference

Chapters 13 to 15 (the last a scholarly piece on Kosovo and its secession from Serbia through NATO intervention) deal with the vexed issue of humanitarian intervention in internal disputes of member states of the UN.

Early interpretations of international law leading to the more recent development of the R2P (Right to Protect) doctrine are explained lucidly. India's intervention of 1987 finds a special mention.

The prognosis is not very encouraging. HL foresees a gradual shrinking of national sovereignty brought about by globalisation of economic, social and cultural spheres, and a parallel expansion of the frontiers of humanitarian intervention orchestrated by the powerful States, thereby enabling the later to dominate the global order.

Appeasement and compromise

Part II contains eleven chapters on topics that the reader will be familiar with. They also contain personal insights of the author on the Thimpu Talks, the Supreme Court ruling on the 'Non-merger' of the Northern and Eastern Provinces and several rounds of peace negotiations that were held between the Government and the LTTE.

The reader will be afforded a clear statement on the issues involved in the Indo-Sri Lanka Accord of July 1987, the MOU of February 2002, the Oslo Statement of December 2002, the ISGA proposal of November 2003 and the P-TOMS Agreement of June 2005.

Collectively this part provides a short history of peace negotiations and one is left agreeing with the author that vital issues were compromised, 'on assumptions made which are superficiality attractive but are in fact dangerous and would sooner or later result in the fragmentation of Sri Lanka and its disappearance as a Sovereign State' (p.309).

Judicial Independence and the Rule of Law

Part 111, containing chapters 27 to 40 deals with matters mainly connected to the author's legal profession. Chapter 27 which deals with Judicial Independence when read along with chapter 30 on 'Public Confidence in the Judicial System' throws sufficient light on this pivot of democratic governance. Instances of intimidation by the Executive, critical utterances in Parliament, rewarding public officials found guilty of fundamental rights violations and the oft-quoted case of abusing Article 163 of the Constitution to remove judges of the superior courts at the time of the inauguration of the 1978 Constitution are cited as serious inroads into judicial independence and integrity.

The author is realistic when he explains that corruption is to be found everywhere in our society. 'It is hard for the Justice System to remain unsullied and unscathed in such a noxious environment'(p. 453). He explores ways and means of containing this malediction.

Along with judicial independence the author attaches great importance to the Rule of Law.

The judicial processes must not only be fair and just, but must appear to be so, and should be administered according to the Law. If public confidence in the justice system is lost, then, it may imperil all other systems leading to a state of anarchy and chaos.

Collection

This book is a collection of essays written at different times; hence, it lacks the smooth thematic flow of a well-crafted scholarly tract. Understandably, issues and themes find repetition in different chapters.

A positive feature of this repetitiveness is the constant refrain (some may see this as an obsession) that the territorial integrity of the Sri Lankan State should not be compromised under any circumstances.

Writing in the mid nineteen nineties, HL spelt out his strategy for future Governmental action (p. 56): elimination of the LTTE, restoration of law and order and the Rule of Law, and 'once this is achieved the grant of substantial autonomy'. Let us hope that this dream will be realised, soon.

- Dr. B. S. Wijeweera