The fact that two provincial elections are on the cards does not seem to have healed the rift within the UNP - even for the sake of unity at the election. Things have settled down into a depressingly familiar groove and the felling seems to have sunk in that that there will be no change of this pattern. Every time the UNP has lost an election, they have cried foul. When they lost the 2005 presidential election, the story that I was told by almost every UNP supporter I spoke to, was that Mangala Samaraweera and his JVP contacts had got around the grama sevakas and deleted the names of UNPers from the electoral lists resulting in thousands of UNP voters not being able to vote. This was of course after the election. My reaction to this was that if Mangala Samaraweera and his boys could remove UNP members from the electoral lists so slyly that it was not noticed by a single UNP electoral organizer until the results were being read, then the PA deserves the victory they got and the UNP deserves its defeat! Samaraweera is now with the UNP – he is in fact their deputy prime minister-designate – so now the UNP should have been able to tap his allegedly extensive knowledge of doing crooked things to win elections, to win the eastern province elections.

The ‘critical moment’

However, even with Samaraweera within the UNP fold, the UNP has not yet been able to win. And the story that we hear about the EPC elections is that it too was rigged. Someone has to draw the line somewhere. If those who rigged the EPC elections were able to do the rigging without the foreign observers present seeing anything, then one might well say that the victors have earned their victory. How did they do it? It could be that they kept close tabs on the foreign observers to see where they were headed, and avoided those places and stuffed the boxes unseen. Then the moment the foreign observer’s backs were turned, they would have tip toed to those polling stations and done the dirty. Thus all the boxes were stuffed without the foreign observers noticing anything. This is not completely improbable. During the Chandrika Kumaratunga regime, I had the opportunity to spend some time with goons of the then government  - characters I would not normally associate with. One thing  they told me was that when ballot boxes are being stuffed, very often, even the voters in the queue outside are blissfully unaware of what was going on inside.

The ballot box stuffers would slink into the polling booth with apologetic smiles and politely tell the government servants on duty that they meant no harm and all they wanted were some ballot papers. These would then be quickly marked and dropped into the boxes, and the stuffers would be gone as quietly as they came. It was only in the past that goons invaded polling booths in a manner reminiscent of an American gangster movie, firing guns and shouting obscenities. Nowadays, only two or three would go into the polling booth, and they would be courteous to everybody so long as they got to do what they came for. This was an innovation introduced by the Chandrika government. Now, if we believe the UNP, the Rajapakse regime has fine tuned the procedure to such an extent, that even foreign observers are kept in the dark.

If this is really the situation, the UNP has absolutely no chance in winning any election - not now or ever. The only hope for the UNP would be to wait patiently for that ‘critical moment’ when a government is so discredited that even the stuffing of ballot boxes does not help. All governments come to such a situation sooner or later. The Sirima Bandaranaike government elected to power in 1970 came to this pass in five years - the moment of reckoning being the Dedigama by-election. The UNP government that was elected to power in 1977, took 17 years to come to it. For the UNP, the turning point was the southern provincial council election of early 1994, which was handled by Sirisena Cooray on behalf of the UNP. The CBK government took seven years to come to the point that no amount of stuffing would retain them in power. The UNP government elected to power in 2001came to this point in just two and a half years, thus setting an all time record. Given the present state of the UNP, their only option would be to wait patiently for the Rajapakse government also to come to that critical moment.

Red herrings

One of the main reasons why the UNP is faring so poorly against the Rajapakse government is the inexplicable tendency to follow red herrings. For example, it was the NGO known as the Centre for Policy Alternatives that floated that story about a constitutional amendment being necessary for Sri Lanka to qualify for the GSP+ facility. The UNP as a political party, should have been more careful about what they were getting into. But the UNP plunged headlong into this mess and now it’s not the CPA that people are talking about in this regards – it’s the UNP. The UNP made the CPA stand on its own and Ranil even wrote to the External Affairs Commissioner of the European Commission expressing his willingness to provide the two thirds majority necessary for a constitutional amendment. The mere fact that it is rather unusual for the leader of an opposition to write to an EU bureaucrat about constitutional amendments and his willingness to cooperate with the government, does not seem to have registered in the minds of those who make decisions within the UNP.

 But then, the UNP is not sensitive to these things. There is that celebrated instance, where when the Japanese peace envoy Yasushi Akashi during his last visit to Sri Lanka some months ago, asked the UNP delegation led by Wickremesinghe himself what it thought about the All Party Representatives Committee proposal that the 13th amendment be implemented in full, the UNP leader had smugly replied "If the co-chairs (USA, EU, Japan, Norway) and India was agreeable to that proposal, then the UNP too was agreeable!" No doubt, Akashi would have gone away, scratching his head in bewilderment. Likewise it would have been the first time in that Benita Ferrero-Waldner’s life that she ever received a letter from the leader of the opposition of any country, about a constitutional amendment in a foreign country.

  The CPA article on GSP+ which was originally published in the Sunday Leader, gave reasons as to why they think the constitution should be amended in order to qualify for GSP+. The main sticking point in qualifying for the GSP+ facility was the question whether Sri Lanka had fully implemented the International Covenant on Civil and Political Rights. The government insists that the ICCPR is fully operational in this country and they have even got a Supreme Court ruling to confirm the point. But the CPA disagrees. The reasons given by them for holding the view that the ICCPR is not fully operational in Sri Lanka can be broken up into three main categories.

  Firstly, the CPA argues that some rights in the ICCPR are not recognized under Sri Lankan law. Some of these rights are: (1) The right to life. (2)  Freedom from forced or compulsory labour. (3) The right to compensation for unlawful arrest or detention. (4) The right to leave the country and so on.

My dear friend D.P.Sivaram was abducted and killed, but the fact that nobody has been charged yet is not because there are no laws in Sri Lanka against abducting and murdering people.  Then again, had Lankans, as the CPA alleges, not had the freedom from compulsory labour? If not, this country would have been crawling with foreign investors wanting a piece of the pie! As for compensation for unlawful arrest, I do think I have heard of instances where the courts have compensated unlawful detention. The Police Inspectors Association even has a special fund to help cops in trouble.  As for the right to leave the country, people do that all the time.

 The ICCPR is not rocket science. It’s a very basic human rights document which seeks to give people the right to a dignified life. For example, Article 14(2) says that everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. Article 8(1) states that no one shall be held in slavery, and the slave trade in all their forms shall be prohibited. So these are very basic rights that the ICCPR speaks of. To say that these are not applicable in one way or another in Sri Lankan law, is almost an insult. When, for instance, was the last time that slaves were traded in Sri Lanka?  The ICCPR would be rocket science only to countries like Afghanistan which exist almost on the borders of civilization and have never known the rule of law or democracy. Sri Lanka, in contrast, is Asia’s oldest democracy now in the eighth decade of universal suffrage and we have a history of having effected many changes of government through the ballot.

So obviously what the CPA was talking of are curious legal abstractions that professional lawyers should discuss over cake and coffee. Can any sane rational person consider this to be an adequate reason for the EU to do away with GSP+? Is the EU going to deprive many female workers from the poorest segments of Sri Lankan society of a livelihood, merely because, theoretically speaking, there is no ‘right to life’ in the Sri Lankan constitution? What is the EU planning to do? Become the implementing arm of the ‘no right to life’ policy?  

The second point raised by the CPA is about the restrictions to the fundamental rights incorporated in the constitution. The fundamental rights chapter in the 1978 constitution was an innovation introduced by J.R.Jayewardene. In the 1948 constitution which was bequeathed to us by the British, there was no talk of fundamental rights at all. But many people would swear that fundamental rights were better protected under the 1948 constitution than it ever was under the 1978 constitution. Be that as it may, the main point raised by the CPA with regard to these restrictions was that article 16 of the constitution validates all laws existing prior to the enactment of the constitution notwithstanding any inconsistency with the fundamental rights chapter of the constitution. To my untrained mind, the restriction on fundamental rights was mainly aimed at the criminal law and the emergency laws, under which a restriction of fundamental rights has to necessarily take place. A convicted criminal cannot claim to have a right to liberty and so on. One does not need to be legally trained to understand that while fundamental rights apply to all citizens in normal circumstances, they are suspended or rendered inapplicable in certain exceptional circumstances. Article 4(1) of the ICCPR itself recognizes that signatories to the ICCPR may take measures deviating from the provisions of the ICCPR required by the exigencies of the situation.

Mad judges

The third issue raised by the CPA is that citizens of Sri Lanka should have recourse to applying for relief to an International Human Rights Committee. This can be described as the centre-piece of the issues raised by the CPA. The two points raised above are mainly a case of trying to reinvent the wheel or crossing the Ts and dotting the Is. But if an appeal is allowed to a court overseas, that would violate the supremacy given to the supreme court in the  Sri Lankan constitution as the final court of appeal. For those who have been at the receiving end of judgments, the ability to address an appeal to a court overseas would in fact be a great source of relief. Under the 1948 constitution, appeals could be addressed to the Privy Council and this did provide relief in some cases. On the face of it there may seem to be nothing wrong with having such a source of relief. But during the Privy Council days, western courts were by and large, rational. The culture in western courtrooms today is anything but.

Recently, George Bush had to approve legislation brought in Congress to limit the powers of the judiciary in awarding compensation in cases of medical negligence. In many western countries, thanks to the lack of commonsense in courts, medical negligence cases became a new gold rush. If a 95 year old great, great grandmother died in hospital, her descandents could claim millions from hospital staff on the grounds of medical negligence and there was no dearth of lawyers who for 40% of the takings, would leave no stone unturned in the effort to prove negligence.

All over the West, doctors were living in fear of medical negligence litigation. If anything was proven against them, they would have had to sell their homes and property to settle the claims. So doctors began to take out insurance cover against this risk. Whenever there was a spectacular case where millions of dollars were awarded in a medical negligence claim, the insurance companies would increase the insurance premiums so as to cover themselves adequately against what was possible. Things were spiraling out of control all over the west, with doctors deeming the risks not worth their while and the American government had to take the initiative to impose a ceiling on what could be claimed in medical negligence cases. This keeps the insurance premiums for medical negligence cover at a reasonable level, and gives doctors and other medical staff an incentive to stay on in the profession.

Its not just shortsighted legislation that has sent the west into a crisis on some fronts - the judiciary in those countries are equally responsible. In almost all western countries, teachers no longer take school children out on excursions. On the rare occasions that they do, they have to take elaborate precautions to ensure that absolutely nothing goes wrong on pain of a law suit asking for millions in compensation. So they fill in dozens of forms, take out millions worth of insurance cover, and cover themselves by taking permission from the education department itself to take the students out to show them some sights. Because of the hassle and the risks involved, many teachers would not dream of initiating an excursion on their own. The fear of litigation is something that has gripped the whole western world and has increased stress levels all round. There is one instance that I know of where the finger of a child was bitten by a little bunny rabbit in a private zoo and the child’s mother went to court and was awarded 750,000 Dollars. The owner told the newspapers that he was going to sell the zoo to raise the money! With the international courts being dominated by judges from western countries, a single judgment could render Sri Lanka completely ungovernable.

Impolitic politics

The ICCPR does not make it mandatory for all signatory countries to agree to come under the jurisdiction of international courts. It has two optional protocols which are designed to do even more good for the world than the primary covenant. It is not mandatory for the signatories of the ICCPR to implement the two optional protocols as well. For example, Article 6(2) of the ICCPR says that the death sentence may be imposed only for the most serious crimes. Article 6(5) stipulates that the death penalty will not be imposed for crimes committed by persons below eighteen years of age and that the death penalty shall not be carried out on pregnant women.

So in the ICCPR there is provision to implement the death penalty. The second protocol of the ICCPR was promulgated for those countries that wanted to abolish the death penalty completely. Article 1(1) of the second protocol to the ICCPR, stipulates that no one within the jurisdiction of a state party to the present protocol shall be executed. Article 1(2) says that each state party shall take all necessary measures to abolish the death penalty within its jurisdiction.

Even though Sri Lanka is a signatory to the ICCPR itself, we have not signed the second protocol. So even though the death penalty is not implemented in Sri Lanka, it remains on paper and judges continue to hand down death sentences. This however is not a problem according to the ICCPR. Likewise, the first optional protocol is about ‘adding value’ to the ICCPR and seeks to make provision for citizens of signatory countries to be able to appeal to an international tribunal if they don’t get relief from the local courts. The first optional protocol is not mandatory, but where the UNP, even more than the CPA, demands their pound of flesh, is the point that Sri Lanka did sign this optional protocol during Lakshman Kadirgamar’s time as foreign minister. Hence comes the theory that without a constitutional amendment to make the ICCPR and the first optional protocol fully operational in Sri Lanka, and making the Sri Lankan Supreme Court subordinate to an international court of law, we will not qualify for GSP+. Where one is left red faced is the fact that Sri Lanka has in fact signed this messy document.

However, article 12(1) of the first optional protocol makes provision for any signatory state to move away from the protocol. It is not necessary for Sri Lanka to move away from the first optional protocol because the Supreme Court has already deemed the signing of the protocol to be unconstitutional. To scream for the implementation of something that is purely optional on pain of losing the GSP+ facility smacks of an attempt to use this issue to flog the government with. The point that I am trying to make is that it is perfectly alright for an entity like the CPA to write articles about the finer points of the ICCPR and the constitution; but it is yet another thing for the leading opposition political party of the country to seize upon this as a political stand. This could expose them to a lot of flak.

The UNP is abysmally poor in judgment in choosing what bandwagon to ride. When the CPA talks about having provision for appeal to an international court, one may argue that this is an attempt to provide relief to citizens. But when the UNP as a political party, talks of making the Supreme Court subordinate to a foreign court of law - which is what this finally boils down to - it looks like an attempt to undermine the sovereignty of the country. This combined with the image that the UNP has of being overly servile towards the West, makes a very bad mix indeed.

It might be of interest to note that Somawansa Amarasinghe, the JVP leader was in Britain the week before last, meeting parliamentarian Andrew Lowe, the chairman of the Committee on Sri Lanka in the House of Commons. On this occasion he presented the JVP’s case for the extension of GSP+. The point he made was that it is not the government that will be affected by a withdrawal of GSP+ but the business community and the ordinary people. The point to note is that even though the JVP is mistrusted by a good section of the general public, nobody says that Amarasinghe was out to undermine the country by meeting foreign dignitaries and poisoning their minds against Sri Lanka.