Wickremesinghe’s statement made in the parliament 01.12.2011:
1. The meeting of the Commonwealth Heads of Government in Trinidad and Tobago in 2009 agreed to the “Affirmation of Commonwealth Principles”. They also mandated the Commonwealth Eminent Persons Group to report on making the Commonwealth more relevant to its times and its people.
The Report of the Commonwealth Eminent Persons Group recommended the appointment of a Commissioner for Democracy, the Rule of Law and Human Rights. At the Commonwealth Heads of Government meeting in 2011, the Sri Lanka Government opposed the appointment of the Commissioner for Democracy, the Rule of Law and Human Rights. Why does the Government of Sri Lanka want to oppose such a recommendation? If we are a functioning democracy the rule of law and human rights are upheld then there is no need to oppose such a recommendation. Supporting this recommendation would have answered the allegations made against the Government in the Report of the Secretary General of the United Nations’ Panel of Experts on accountability in Sri Lanka. I want to ask why the Government did not table this report for debate in Parliament. This is an issue related to fundamental rights which is a component of the sovereignty of the people. Hence the people’s representatives must be given an opportunity to discuss such issues. It is a violation of the responsibility and answerability of the President and the Cabinet of Ministers to Parliament. The government of Sri Lanka has no right to take a decision on these matters without consulting Parliament.
2. Sri Lanka is a party to the Universal Declaration of Human Rights as well as the International Covenant on Civil and Political Rights and is obliged to uphold these agreements. Holding of free and fair elections are also governed by these agreements.
3. In the case of Nicaragua vs. USA, the International Court of Justice held that national electoral systems are a matter of domestic policy provided these do not violate any obligations of international law. These international obligations are contained in the two agreements I mentioned above. Article 21 of the Universal Declaration on Human Rights specifies that the will of the people shall be expressed in periodic and genuine elections. This is further elaborated in Article 25 of the ICCPR which states “that every citizen shall have the right and the opportunity to be elected at genuine and periodic elections”. All the state parties to these two agreements (including Sri Lanka) are obliged to uphold these provisions.
4. The Inter Parliamentary Union Council of which we are members adopted at its 154th Session the following criteria for free and fair elections:
“3. Candidature, Party and Campaign Rights and Responsibilities
(1) Everyone shall have an equal opportunity to become a candidate for election.
(5) The right of candidates to security with respect to their lives and property shall be recognized and protected.”
As a follow up to these Declarations, the IPU also issued the publication titled “Free and Fair Elections” – Second Edition edited by Guy S. Goodwin-Gill. Referring to International Standards it states:
“Fundamental human rights, for example, to hold and express opinions, to receive and share information, as well as freedom of movement, association and assembly, all give specific content to, and thus limit, the choices open to states in the regulation of an electoral campaign.
5. We, in Sri Lanka, have, until now, upheld these obligations. The Presidential Elections of 1988 was held in the midst of internal armed conflicts both in the North and in the South. It was agreed by all parties that Emergency Regulations should be restricted to matters of public security and the election would be conducted under the election laws. This practice was followed at subsequent elections. During the Presidential Elections of 1998 when the LTTE attempted to assassinate President Chandrika Kumaranatunga, the Emergency Regulations were applied only in respect of inquiries into the alleged assassination. This is because our Constitution is based on the sovereignty of the people which incorporates fundamental rights and universal franchise. Article 4 (d) further enumerates the requirements for all organs of the Government to respect and secure the fundamental rights. This includes freedom of speech and expression referred to in Article 14 (1) (a) which is an essential ingredient of free and fair election. The right to franchise is enshrined in Article 4 (e).
6. Under the Constitution, the President may at any time after the expiration of four years from the commencement of his first term of office appeal to the people for a mandate to hold office for a further term. This is provided in Article 31 (3a)(a)(i) which enables the holding of a Presidential Election. Any persons challenging the incumbent President at this election also challenges his record and reputation during his tenure of office. Thereby, the President calls upon the electorate to pass judgment on his record and reputation. Therefore, the campaign strategy at any modern Presidential Election is based on reputation management. Earlier two Presidential Elections of 1982 and 1991 were called under Article 31(3a)(a)(i). I was a candidate in the Presidential Election of 1999. Then incumbent President Chandrika Kumaratunga and I made allegations both well founded and unproved against each other. The same practice was followed in 1982. Both sides seek to demolish the reputation of the other candidate. This is the same practice that was followed at elections, even prior to Presidential Elections. I myself have been at the receiving end of unfounded allegations in 1994 and 2004 when I was the incumbent Prime Minister. Traitor, betraying the country, race and religion were amongst the many allegations which I had to face during the Parliamentary Elections of 2004 and the Presidential Election of 2005.
7. The right to free and fair elections is conferred by Articles 3, 4, 14, 31 and 154(G)(7) of the Constitution. This right cannot be superseded by emergency regulations which are made by the President under Article 155 (1). They are not an exercise in legislative power. On the other hand, the power to make legislation is exercised by Parliament and by the people at a referendum. But a regulation is a rule of order which seeks to give legal effect to the primary legislation, the Public Security Ordinance.
Now under Part II of the Public Security Ordinance, the President may make emergency regulations in accordance with Section 5 where it appears to him to be necessary or expedient in the interest of public security and the preservation of public order and the suppression of mutiny, riot or civil commotion, or for the maintenance of supplies and services essential to the life of the community.
Article 155 (2) specifically states that a regulation cannot override amend or suspend the provisions of the Constitution. The electorate has a right to be informed by the different candidates of their view points during an election campaign. This is a part of the free and fair elections and it cannot be restricted or interfered in any way. Even these rights are granted under the Constitution and the two agreements cannot be abrogated by Emergency Regulations.
8. Article 4 of the ICCPR states that emergency regulations may only permit state parties to derogate from their obligations under the present Covenant to an extent that is strictly required by the exigencies of a situation provided that such measures are not inconsistent with their other obligations under international law.
Furthermore, a restriction on fundamental rights contained in Article 15 cannot take away the sovereignty of the people including the right of franchise and free and fair elections guaranteed by Article 3 (4), 31(3a)(a)(i) of the Constitution. The criteria laid down by the Inter-Parliamentary Union also specifies under 3(7) the rights as follows:
“3 (7) The above rights may only be subject to such restrictions of an exceptional nature which are in accordance with law and reasonably necessary in a democratic society provided they are consistent with States’ obligations under international law.
9. Presenting the Emergency Regulations in Parliament on 09 December 2009, then Prime Minister Ratnasiri Wickramanayake gave the following reasons to bring these Regulations into operation.
- Meeting immediate threats from the remnants of the LTTE
- Replace the displaced persons in the Vanni
- To recover ships, arms and other assets of the LTTE.
Then, according to the obligations under the ICCPR the Emergency Regulations in question have to be limited to the exigencies mentioned in the speech of the Prime Minister Ratnasiri Wickramanayake. It cannot in any event apply to acts done in connection with the Presidential Elections. To go outside the exigencies mentioned above is to violate the provisions of the ICCPR and the Human Rights Declaration. If any candidate of any election, Provincial, Parliamentary or Presidential is prosecuted under Emergency Regulations which have no application to election, then it is a violation of obligation of the state under the Universal Declaration of Human Rights and as well as the International Covenant on Civil and Political Rights.