How to solve a ‘problem’ like ‘Uthayan’

The ‘Uthayan’ newspaper was attacked a few days ago.  It was not the first time.  Not the second. Not the third.  It was the thirty sixth time that ‘Uthayan’ was attacked.  That it still stands, still publishes and still defies testifies to admirable resilience.

Uthayan, over the years, has been a newspaper that has a clearly identifiable political position and one with clearly identifiable political loyalties. As is the case in such publications, political expedience overrides journalistic ethics. Truth is not important; political convenience is.  Balance is not important; required slant is. Informing is not important; misinforming is.  But wait, isn’t that also what the BBC does, what Al Jazeera does, what Channel 4 does, what people who are invested in political projects do all the time?   

What Uthayan does (or does not do) may be interpreted as attempts to wreck rather than facilitate post-conflict processes of rehabilitation, resettlement, reconstruction and reconciliation, but those who interpret thus need to understand that nothing comes easy.  They need to understand that there will be ‘spoilers’ real or imagined. They need to understand also that good and lasting solutions need to a) factor ‘spoiler’ into the process, and b) deal with spoiler within the larger framework of the law. 

It is not easy, of course.  If it was about money and guns in an earlier era, today its money, guns and media, working in concert of course.  So ‘Uthayan’ is part of that larger story, one could argue.  On the other hand, the moment Uthayan is attacked, the hack gets visibility and respectability, and what is patently slanted is legitimately taken as biblical truth. 

Even if none of this was true, any attack on any establishment or person is an affront to democracy as well as an indictment on the law and order situation in the country.  If any entity is attacked as many times as Uthayan has and no one has been apprehended then it implies that the law enforcement authorities are utterly incompetent or else complicit.  The state can and must do better than this. 

The best way to counter a lie is by confronting it with truth.  There’s a reason why the so-called human rights activists whose safety Navineethan Pillai was ‘concerned’ about can’t find friends outside their tiny circle of party-going, cocktail-sipping, dollar-hungry fellow-travelers: they have been effectively dealt with solid arguments. 

This is why, a couple of weeks ago, attending a session of Colomboscope 2013 devoted to alleged war crimes, where Prof Rajiva Wijesinghe and two spokespersons for the Sri Lankan security forces spoke, Dr. Paikiasothy Saravanamuttu didn’t utter a word.  No, not out of fear for everyone knows what his positions are and he walks around without looking over his shoulder.  He just doesn’t have the arguments; he’s been undressed enough with logic.

That’s how democracy works.  It doesn’t stop Saravanamuttu from lying through his teeth of course and it won’t stop those who are ready to accept lie as truth and reward with bucks the liar from continuing to harass Sri Lanka at every turn, true.  On the other hand, it stops outsiders from scripting anarchy in this country. 

In the case of the Uthayan, on the other hand, what we’ve seen is action and inaction that not only provide frill to the lie-manufacturing mill, but upsets those who value democratic processes and the democratic culture of engagement, including those who are wont to consider Uthayan as a propagandist rag. 

The same goes for attacks on political opponents, physical or otherwise.  It betrays a reluctance to fight word with word or indeed a certain impotency in debate.  Worse still, it raises the questions of arrogance and implies an inherent weakness when it comes to dealing with criticism. 

The two uniformed gentlemen at Colomboscope, it is reported, showed admirable composure, which only buttressed argument and moreover helped floor critics.  That’s maturity. 

When the Government will get its act together, no one can tell. For now, all that needs to be said is that just as it might be hard to stand with the Uthayan on the same political platform, standing for democracy necessitates an unambiguous condemnation in the strongest terms of the attack. 

We condemn. Unreservedly.

[The Nation 'Editorial', April 7, 2013]

 

 

 

 

 

 

 

 

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A nation on the edge

The nation is on edge.  There is a sense of foreboding.  There are fears of a July 1983 repeat.  Indeed there are even those who are eagerly waiting for such an eventuality.  And there is no shortage of people and organizations that feed these fears, knowingly or unknowingly contributing to tensions. 

In the aftermath of the violent incident in Pepiliyana where a Muslim-owned business, Fashion Bug, was attacked by mobs, the Bodu Bala Sena categorically denied involvement and condemned the attack. Indeed, the organization went as far as to state, a) that the Police should arrest all those responsible, even if they happened to be bikkhus, b) that the organization has neither called for a Buddhist boycott of Muslim shops nor threatened with physical harm those who patronized them. 

This is a welcome move, especially since the rhetoric of the organization has not exactly championed co-existence and tolerance.  It appears that the rhetoric has given rise to forces that the organization cannot control and which, ironically, operate in the name of the Bodu Bala Sena, setting up Twitter, Facebook and other accounts in the domain of social media.   Bodu Bala Sena cannot claim innocence in the groundwork that has been laid for intolerance and violence to prosper. 

On the other hand, vilifying the Bodu Bala Sena has led to a blanket dismissal and vilification of Buddhists.  This too does nothing to ease tensions.  The Bodu Bala Sena statement, in this context, must be applauded, but with a certain degree of caution. The organization could do more if it clearly stated that as per the teachings of the Buddha, it will support authorities responsible for law and order to ensure that Muslims and Muslim businesses and other properties are protected. 

It is also heartening that President Mahinda Rajapaksa has announced that he is not the President of the Sinhalese and Buddhists but is the President of all communities and people of all religious faiths.  He has clearly signaled that the Government will not turn a blind eye to religious intolerance in whatever form.  It is a good sign that three persons have already been arrested over the incident, but peace requires swift and decisive action to prevent incidents as much as bringing to book those who violate the law. 

If things get better from now on, much of the accolades should go to the Muslim community which has shown remarkable restraint and good sense.  This should not be reason for complacency or for assumption of ‘weakness’ or ‘impotence’, though.  All it takes is for one individual to lose control for an entire nation to be engulfed in flames we can very well do without.  The only way that the Bodu Bala Sena can stop this from happening is by actively reaching out to their Muslim brethren, to take whatever grievances they may have to the relevant authorities and these authorities dealing with issues as per constitutional provision. 

Any attack on any Muslim individual (or any individual for that matter, regardless of religious persuasion) is not in keeping with Buddhism.  Indeed any attack is a blemish on the overall cultural ethos of Sri Lanka which undoubtedly has been wrought of Buddhism more than any other doctrine, religious or otherwise.  If a Muslim is attacked, then, it is an affront to Buddhism and the attacker can at best claim to be Buddhist only by name. 

Buddhists have not given any organization the authority to speak on their behalf. Only the bikkhus of their respective temples and the Mahanayakas of the three nikayas have that authority.  These authorities have not endorsed the Bodu Bala Sena.  Neither have they actively intervened to urge Buddhists to adhere to the teachings of the Buddha, especially those tenets pertaining to compassion and tolerance.  Clearly, a lot more needs to be done. 

The Government has a responsibility.  Religious leaders too.   The general citizenry needs to be alert and exercise utmost caution and tolerance. Anyone taking the law into his/her hands is not affirming his/her faith but in fact denouncing it by that very act. 

The nation is on the edge.  It is a moment of truth.  A political chasm beckons.  All the more reason to take a step back. 

[The Nation 'Editorial', March 31, 2013]

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Spare a thought for Manmohan Singh

India has a question for Sri Lanka: How will India's vote in the UNHRC impact Indo-Lanka relations? It’s a complicated question and one which prompts multiple answers. 

Officially, the Government still considers India a friendly country. The nature and volume of trade between the 2 countries, especially what SL imports, both in terms of volume and number of items, makes severing relations hard. The fact that the Indian Parliament did not choose to pass a resolution against SL will also be factored in: 'face-value' has value.

On the other hand, the Government will most certainly appreciate Pakistan's friendship and also China's support. Unofficially, it is likely that the Government will move closer to these two countries, not so much to 'teach India a lesson' but for pragmatic reasons, of which the following must be flagged: 'India cannot be counted on'.

If there was a buzz regarding Geneva 2012, this time around there was hardly a murmur.  If people wondered what India would do last year, this year there was no doubt.  India’s vote was not ‘news’. 

Did India, or rather Delhi/Singh, have a choice though? 

First of all, India, having burnt the friendship boat or rather what was left of it in Geneva in 2012, could hardly be expected to do a volte face and certainly not after pandering to the pro-LTTE Sour Grape lobby in India and elsewhere. 

Secondly, India, aspiring as it is to break into the UN Security Council, can hardly afford to annoy the USA, which country tabled the resolution against Sri Lanka.  Please note that the US Ambassador’s semantic intervention (resolution ON Sri Lanka and not AGAINST her) fools no one for at best it smacks of a 21^st Century version of ‘White Man’s Burden’. 

Thirdly, Manmohan Singh and the Congress Party cannot ignore political arithmetic.  Whether its Jayalalitha or Karunanidhi that’s calling for accompaniment, Singh has to dance to the Tamil Nadu tune come election time.  It is for this reason that Sonia Gandhi had to forgive her husband’s murderer.  Perhaps. 

Fourthly, nothing that Singh does (against Sri Lanka) is ‘enough’ for Tamil Nadu because Jayalalitha and Karunanidhi have to keep upping the stakes as both appeal to the worst sentiments of Tamil Nationalism to secure and usurp power in that state respectively.  Singh was burnt both before and after Geneva. 

Fifthly, Singh has a lot to lose by pandering to Tamil Nadu, which is why the Resolution on (against) Sri Lanka in the Indian Parliament was still born. 

With all these issues to think of, India is also harangued by Sri Lanka’s firm friendship with Pakistan and China.  Now some may say that India sided with the USA to ‘send a message to Sri Lanka regarding the growing Chinese “presence” in the island,’ but when we consider the volatility of the factors Singh has to take note of, this seems trivial.  Singh is first a politician and then a patriot; like all politicians on may add.  If Delhi sided with Sri Lanka and Singh lost the election, a sojourn in the political wilderness may have seemed too high a price to pay for not having a lesser Chinese presence in the backyard. 

Regardless of all this, and all the tired and expected noises India is now forced to make about accountability and reconciliation (by way of the 13^th Amendment; read ‘boundary-lining Eelam myths’), Sri Lanka has to understand Singh’s predicament and read his choice-lack accurately.  The man didn’t have many options.  An option-poor man’s statements and demands must therefore be viewed with compassion and empathy. 

It is better for Sri Lanka to let Singh find cures for his many political miseries and concentrate on getting things done right here, in Colombo, Killinochchi, Monaragala and elsewhere, in the Constitution and the Separation of Powers, with respect to transparency and accountability, reconciliation and rule of law.  This should be done not because there’s going to be another circus in Geneva a year from now, but the only way Sri Lanka can resist spoilers from other countries is to be united. Unity is not obtained by poetry workshops and development exhibitions, but by a full consideration of what ‘citizen’ means and what has to be done on all fronts to make citizenship meaningful, to create a Sri Lanka where citizens feel acknowledged, respected and belonging. 

msenevira@gmail.com

 

[The Nation 'Editorial', March 24, 2013]

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We are nothing if we are not all

Api venuwen api (all of us for all of us) was a defining slogan as the entire nation stood with the President, the Government and the security forces in the last years of the struggle to rid the country of the terrorist menace.  Today, almost four years later, the country faces another test, this time from external sources.  A few days from now the UNHRC will take up a US sponsored resolution on (read ‘against’) Sri Lanka.  Given realities of global power balance (and imbalance) in all likelihood, the resolution will pass.  There is very little that Sri Lanka can do about international busybodies with pernicious agendas backed by bucks and guns, not even if Sri Lanka had the finest diplomats on earth. 

As is mentioned in the Dhammapada (Verse 11, Sariputta Thera Vattu), ‘those take untruth for truth; they take truth for untruth, persons can never arrive at the truth, for they hold wrong views’.

The silver lining, paradoxically, in these trying circumstances is the opportunity to separate friend from friend-claimant. India, for example, is said to be negotiating another ‘watered down’ resolution, but this should not fool anyone.  India would love to come off as ‘friend’ even as it wrangles a resolution that will keep Tamil Nadu happy and its interests in Sri Lanka safe from usurpation by China (for example). 

Come next Sunday, we will know. 

Whatever happens, Sri Lankans must reconcile to the fact that in the face of adversity and in times of celebration we are best when we are united, i.e. when we are in api venuven api mode. 

Now absolute unity in any polity is a myth.  We can only speak of degrees of unity.   We can be united against a common enemy, even if we are at odds with one another.  Sometimes adversity prompts blaming.  When faced with storms beyond our strength we take our frustrations out on lesser ‘enemies’.  Sometimes we even conjure enemies where there are none.

It is not possible of course to explain animosities between followers of different faith in terms of what’s happening in Geneva right now.  However, regardless of Geneva, it is prudent to reflect on the notion of unity and the attendant virtues of tolerance, compassion and wisdom as we struggle to obtain and experience the full meaning of the term ‘citizenry’ in a post-terrorism Sri Lanka.

There is reality and there is perception. Human beings are frail and this frailty cuts across all identity markers, all faiths, all ethnic groups, all classes, castes and age groups.  No community can claim it is blameless in taunting, causing grievous hurt and insulting another.  It is this very fact that is used by those persuaded by less than religious motives to make point, exaggerate, raise anxiety level and in these and other ways mobilize the lowest human sentiments for political projects that have nothing to do with the teachings they profess to abide by. 

Religious fervor is an easily sharpened sword.  Those who use that instrument have an edge over those who are probably closer adherents to fundamental tenets.  All the more reason for those who would hesitate to be swayed by religious-politics to stand up and be counted, stand up and stand between executor and would-be executed, literally and metaphorically.

A good Buddhist is a good human being. So too a good Hindu, a good Muslim and a good Christian.  All religious texts are made for interpretation and therefore for pernicious misinterpretation.  That’s politics. But all texts contain notions of tolerance, compassion, giving and wisdom. 

People say we cannot afford another ‘July 1983’.  The reasons, it is claims, is the flak Sri Lanka will receive internationally.  This is not true.  We cannot afford another ‘July 1983’ not because of the exaggerations it will spawn, the distortions and the political instability, but that it will leave us impoverished in terms of how we relate to each other, individually and as collectives. 

Extremism is not always produced by extremists.  The TULF was ‘moderate’, the LTTE was not.  But malice, exaggeration of grievance, inflation of aspiration, provocation, planting of mistrust etc., unleash forces that are beyond the control of the unleashing entity. 

A ‘Good Buddhist’ would be a failure if he let anyone in his/her name or the name of ‘Buddhism’ harm anyone of any other faith, whatever wrong he/she may have done.  ‘Revenge’ has no place in Buddhism.  Neither is it resident in Hinduism, Islam or Christianity.  Infringement of the law has to be taken care of law enforcement authorities, not private citizens.  If laws are deficient or law enforcement authorities errant, then these flaws have to be corrected. We cannot have unauthorized entities interpreting the law and enforcing it. 

Api (us) is not an ethnic-specific term.  It is an inclusive one and moreover one that finds resonance in all faiths.  If a Muslim does not recognize the humanity of a non-Muslim then he is a lesser Muslim.  The same holds for a Buddhist.  If a Buddhist sees a lesser creature in a Christian then he/she diminishes him/herself and his/her fellow Buddhists. 

We are nothing if we are not all. 

msenevira@gmail.com

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Carlo’s lesson

Human beings are frail. They err.  Sometime the transgressions are deliberate.  There are times also when poor judgment, lack of adequate information, deductive poverty, emotion and arrogance result in wrongdoing.  There are no safeguards against the former.  People who believe they can get away with murder will murder for the ‘getting-away’ is but after-thought of murder-decision.  If found out and charged very few would acknowledge crime. Most would look for loophole.

Of the latter type most who later realize the error of their ways would let sleeping dogs lie, so to say.  If error is pointed out, there would be many who twiddle thumbs, many who would try to pass the buck one way or the other, and many who would seek to dismiss or dismiss weight of mistake.  It is a rare breed that acknowledges in full, accepts responsibility and pleads forgiveness. 

Professor Carlo Fonseka is a rare man.  He has his detractors, those who disagree with him and who find fault with the positions he’s taken on particular issues.  One thing is clear: he is a man with a conscience.  If he makes a stand it is because he identifies with the particular cause.  If he is silent it is because he has reconciled to himself that silence is ideologically correct, socially responsible and politically appropriate.  He will, if pushed, defend the positions he takes. 

On January 19, 2013, Carlo Fonseka stepped back.  He admitted error.   Indeed, he virtually confessed that he was accessory after the fact of crucifixion. He asked for forgiveness.

The ‘crime’ was relatively mild.  All he had done was to repeat a lie, which he had honestly believed to be true, that the late Gamini Dissanayake was behind the burning of the Jaffna Library.  He did this on approximately 30 occasions in public forums, i.e. during Chandrika Kumaratunga’s presidential election campaign in 1994.  Now, with the retired police officer Edward Gunawardena establishing clearly in his memoirs ‘Memorable Tidbits include the Jaffna Library Burning’ that it was the LTTE that was responsible for this crime, Prof Fonseka had a choice to make.  He could have ignored, told himself that he had gone with what was thought to be the truth, downplayed his error or taken refuge in any number of absolving arguments.  He went public with confession.  He apologized to the Dissanayake family.  He asked Navin Dissanayake (Gamini’s son) to think of his late father and say ‘Father forgive him, for he did not know what he was doing’.   He need not have, but he did.  Rare. 

Confession does not put parts of broken things together.  Event, personality, time and metaphor pass and pass rapidly over crime-moment.  ‘Sorry’ doesn’t turn back time. It doesn’t draw back fire into matchstick.  It does not turn ash into manuscript and brick.  Remorse, however, imprisons arrogance, subverts righteous anger and makes healing possible.

At the same event, Dr. Gunadasa Amarasekera pointed out that the error resulted in another crime: false accusation.  It was not just Gamini Dissanayake who was vilified.  The state, erroneously (and deliberately) tagged ‘Sinhala Buddhist’ by the LTTE, Tamil chauvinists and others who had a gripe against Sinhalese and Buddhists, stood accused.  Errors of omission and commission did nothing to put the record straight.  No apologies so far.

Prof Fonseka has sowed the seeds of humility.  He can be emulated.  One does not have to say ‘You are right, I am wrong’, but one can say, in the very least, ‘You may be in error, but I am not error-free either’.  This country has seen a lot of violence.  Few are guilt-free.  Individuals can step up and become bigger men and women.  They can speak for themselves, for few have the right to speak for collectives. 

One can say, ‘They’re not remorseful, so why should I?’   Fear comes from possible political fallout.  Carlo Fonseka is a bigger man than he was.   Humility is rewarded.  In the very least it makes for less sleeplessness.  If you have a conscience, that is. 

['The Nation' Editorial, January 27, 2013] 

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In praise of Sumanthiran

It is natural for members of the Parliamentary Opposition to oppose whatever the ruling party proposes.  Voting in Parliament is therefore predictable, whether it is for an Act of Parliament, Annual Budget or anything else.  There was a time of dissenting voices voting against party position but that was effectively quashed by a Supreme Court determination regarding the fate of Members who considered crossing over.  What we have got used to seeing is all members of the Opposition using allocated time to object, with the main opposition being the most vocal and other making cursory dissenting noises. 

Seldom do were here impassioned, well-argued presentations by members of parties with lesser representative power on major issues, the exception being Sarath Muttetuwegama who was a veritable one-man opposition (and an effective one at that) in the eighties.  This is particularly true of identity-based parties.  They tend to speak up only when constituency demands they do and do so vociferously.  At least in post-1977 Sri Lanka.

It is in this context that TNA MP, M.A. Sumanthiran’s intervention in the debate on the impeachment of the (now ex) Chief Justice should be assessed.  The TNA as well as other avatars of parties consciously focused on Tamil issues have rarely taken on national issues that were ‘ethnicity-free’ as seriously as Mr. Sumanthiran did in this instance.  One can agree or disagree with him, take issue with his assumptions and interpretations, but there is no question that he was representating a point of view that cut across identity divide.  His efforts are all the more praiseworthy because they have no impact whatsoever on the party’s electoral fortunes. 

There are of course many issues which feed into communal segregation and mutual suspicion.  Among the reasons why non Tamils view Tamil politicians with suspicion even when the latter talk of a ‘United Sri Lanka’ (‘United’ of course being a problematic term in the unitary-federal debate since neither formation forbids it and therefore warranting the query ‘sleight of hand?’) is the fact that they have never taken up ‘common issues’ with any degree of passion or sobriety.  When Mr.
Sumanthiran spoke, however, he was speaking for Sinhalese, Muslims, Burghers and Malays as well as Tamils, for Buddhists as well as Christians and Hindus.  Not all, because not everyone would agree with him, obviously, but still he stepped out, one can argue, from a communal and communalist (some would say) shell. 

There is a huge difference between a Tamil politician from a major party speaking on a national issue and one from a Tamil party doing the same.  If Sinhalese were reluctant to listen to the TNA except to know what their views are about Sinhala-Tamil relations, Tamil grievances and aspirations, and so on, these kinds of interventions would make them listen without thinking ‘enemy’. 

The Sinhalese must, for their part, appreciate that the TNA, being a ‘Tamil party,’ is obliged to articulate the problems of the Tamil people and moreover to put aside past apprehensions to treat such representations seriously because ethnic identity notwithstanding Tamils are fellow-citizens.  However, whether or not anyone else is listening it is still incumbent on all Parliamentarians to be cognizant of all grievances and their Parliamentary responsibility to be the voice of all citizens.  The President, for example, is not the Head of State of those who voted for him, but every single Sri Lankan, including those whose first choice he was not.

Three years after the end of the three decade armed conflict everyone agrees it is time to move on.  The President has called for the forging of a national identity, a Sri Lanka where Sri Lankanness overrides all other identities.  Mr. Sumanthiran’s effort, even his detractors must recognize, is an articulation of that same sentiment.  He has shown that the TNA, if not in name then in action, can become a ‘national’ political entity.  A concretization would be to re-think party position on the proposed Parliamentary Select Committee to hammer out a lasting solution to grievances of a communal kind.  Indeed, they could turn that exercise into one which designs a new constitution, more inclusive, more democratic and better safeguards against abuse, not to mention one where the principle of power separation is less vague and less open to multiple (and wild) interpretation. 

['The Nation' Editorial, January 20, 2013]

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Towards a country called Tomorrow

‘It is better to impeach too often than too seldom; if those in positions of power cannot be virtuous, they should at least be nervous’ [after Joseph Sobran]

President Mahinda Rajapaksa promised that the ruling party will show its strength when necessary. The ruling party did so on Friday, passing the impeachment motion against Chief Justice Dr. Shirani Bandaranayake, courtesy the massive number advantage, 155 for 49 against. It was a foregone conclusion. The argument in favor of the motion referred heavily to the notion of parliamentary supremacy and the weight of Standing Orders (in particular 78A) vis-à-vis the word of the courts.

The debate itself was held in spite of and in contradiction of the Court of Appeal (CA) upholding writs of certiorari and Prohibition petitioned for by the Chief Justice, where the Parliamentary Select Committee (PSC) appointed under and in terms of Standing Order 78A was determined not to have legal power or authority to find anything that affects the legal rights of the CJ. The court thereby quashed the report of the PSC.  The CA in fact refereed the larger question of constitutional interpretation to the Supreme Court (SC), which had ruled that 78A violates the constitution.  The other elements of the petition (bias, deviousness etc.) the CA did not have to determine on, therefore. 

The above, then, can be described as the butt-ends of parallel processes where the legal muscles of the relevant lines tested themselves against one another.

Processes are never clinical. People and interests are naturally parts of the story. Rhetoric has a say. Words are used. In high profile cases the stakes are high, not just for the protagonists but their hangers-on and anyone and everyone who senses that there are morsels or even something more substantial to be lapped up if the cookie crumbles their way. There has been, therefore, much vilification across the board.

The charges against the CJ are serious to the point that those against Neville Samarakoon seem utterly trivial. Details of her bank accounts and activity therein warrant, in the very least, query of post-suitability. Details of the Trillium transaction and related discounts indicate infringement of Article 110(2) of the Constitution, ‘No Judge of the Supreme Court or Court of appeal shall perform any other office (whether paid or not) or accept any place of profit or emolument, except as authorized by the Constitution or by written law or with the consent of the President.’ Financial experts would maintain that the term discount indicated loss to the seller and profit to the purchaser. ‘Gift’ is indicated. As such the legality of the move notwithstanding decisions regarding the bench hearing the relevant case raises serious questions of objectivity and dignity of office.  Allegation needs to be proved, though.  For such, there should be provision.  The CA determination leaves one to conclude that there are none. 

Many who have opposed the impeachment process have studiously sidestepped such issues, choosing instead to focus on matters of moral authority and perceptions of vindictiveness, both of which can be argued cogently. Political readings where logic is mixed with selectivity make heady cocktails. Allegation can be read as vindictive finger-pointing and this can be confronted by finger pointing in return. For every single matter on which the CJ’s behavior is questioned, one could argue, similar queries can be directed at her detractors.  The politics of convenience, therefore, marked the process from the beginning to end.

That kind of politicization could have been avoided, if for example the process was a product of separate investigations, subject to the caveat that nothing can stop objectors crying ‘foul’ and alleging premeditation. It could have been minimized if process was not padded by a campaign to ‘educate’ the public. It can be argued also, that such efforts may have fed into the interests of those who have an axe to grind against the regime, spurring frenzied commentary about attacks on the independence of the judiciary, dictatorial tendency. The notion ‘international conspiracy’ naturally acquired currency.

It was not a matter of determining guilt or innocence, as far as the CA was concerned, but rather one of propriety.  If 78A is unconstitutional, then it should be transformed into an Act of Parliament, the constitutionality of which the SC has to determine.  Parliament, in such an eventuality, could have insisted that the incumbent CJ should absent herself from the inconsistency check, since we were in impeachment mid-stream. At this point, Parliament would have been forced to assume the integrity of the bench, whose ‘independence’ is clouded by the composition of the Judicial Services Commission, the Chairperson of which is the CJ herself, ex-officio.  ‘Mid-process,’ however, is the rhetorician’s ‘home turf’.  That’s where ‘foul’ is heard the loudest.  Given the degree of politicization, sobriety would have been obtained dearly for suspicion is at a peak and egos at risk of disintegration. 

The fact of the matter is, without 78A and until such time some new measure is introduced, the 1978 Constitution would remain one where there are no provisions whatsoever to oust an errant judge of the higher courts.  That’s an unacceptable state of affairs.  Introducing something now would set a bad precedent, but one could argue that there’s no choice but to do so. 

Those who object to the CA determination can argue that judicial review is never conferred in the abstract or in every conceivable situation. Permissibility is detailed. Powers are caveated with limitations. They can also state that constitutional provisions for ousting of judges of the Supreme and Appellate courts in countries that subscribe to the Latimer House Principles have applied them only to the subordinate judiciary. In both Britain and Australia, Parliament has close to absolute power in determining the ways and means of impeaching judges of the higher courts, noting however that both countries have second chambers which are less about political parties. 

The problem is that review of impeachment measures was not done when they had to be done and were neglected when necessity was pointed out.  Queen’s Counsel Nadesan’s submissions on the matter in his defense of Justice Samarakoon is almost three decades old, so few can claim that no one noticed. Bandaranaike, Muttetuwegama and Gunawardena (of the PSC relevant to that process), in their dissent, urged sending the matter to the SC for a determination.  Nothing was done and so the flaw remained.

On the other hand, those objecting to the CA ruling could claim that Article 107 (3) gives Parliament the option of providing procedure for impeachment either by Law or by Standing Order.  The Legislature can perforce choose to ignore determinations of the judiciary, they would argue, contending that the ruling traverses the jurisdiction and powers of the Legislature. They would, like their objectors, refer principles of power separation.   

It is then the lack of clarity regarding the separation of powers that makes for multiple interpretations. This is why political convenience is enjoying a field day. This is why, regardless of the seriousness of allegation and the guilt or innocence of the accused, it is possible for all protagonists to present cogent expositions of respective positions.

For all these reasons, it is objectively impossible to salute one or the other of the interpretations as ‘true’, ‘valid’ and/or ‘overriding’. When one or other is upheld as ‘The Relevancy’, what is in fact being asserted is political preference and/or political objection, propriety being a convenience, an alibi shaped by preferred outcomes.

As things stand, the President (who is both Executive and Commander-in-Chief of the Armed Forces) has the power to give effect to the Parliament’s determination, by word and if necessary deed (of enforcement). The President can, in the name of the people and dignity of the post of Chief Justice, go ahead to sack her and appoint a successor. This, however, will not untie the interpretive conundrum pertaining to the matter of ousting judges of higher courts. Just as erring on the side of the Court of Appeal determination would not indicate a superior-anterior positioning of judiciary and legislature respectively, this course of action would not make Supreme Court slave to Parliamentary master forever, even though precedent is a powerful referent and ally in the machinations of the pernicious.

The statesmanlike option would be to desist, not out of deference to interpretive superiority of the Court of Appeal or fear of possible censure by unfriendly movers and shakers in the international community and consequent political discomfiture, but because CJ, impeachment and constitutional conundrum are trivial to someone who has vision and has the larger and sustainable interests of the country at heart.

This is perhaps a moment for deep and sober executive reflection. The President may, if he so chooses, declare that inasmuch as he (let us say) respects the determination of the Parliament and inasmuch as he (let us say) finds error in the court determination, he recognizes that a serious constitutional flaw exists, one which blurs dangerously the boundaries that separate the three branches of government. He can add that moreover the 1978 Constitution has many other errors, including those pertaining to checks and balances, those of transparency and accountability in particular. He can therefore declare that this crisis (as some brand it) calls not for amendment but overhaul. The matter of infusing clarity and robustness and moreover dignity to appointment processes, positions themselves and ousting procedures would be thereby resolved but only as part of a larger and necessary process of elevating the constitutional document to one consistent with democracy, in spirit, in word and deed.

['The Nation' editorial, January 13, 2013]

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That ‘Halal Controversy’

Certain sections of the Sinhala Buddhist population are up in arms against what they call ‘Islaamikaranaya’ (Islamization) or ‘Halalkaranaya’ (Halal-ism).  The more virulent elements of this group have indulged in the most distasteful of anti-Islam hatemongering especially in social media sites such as Facebook. 

The initial objection has been to non-Muslims being forced to play participant to a Muslim religious dictate pertaining to meat, i.e. the slaughtering of animals as per Islamic doctrine.  One can argue that if it’s meat that is desired then the ‘how’ of slaughter should not really matter.    It is not that non-Buddhists consuming Halal meat are automatically converted to Islam, after all.  On the other hand, perceived intrusions (there have been instances, we note, of Muslims legitimately and systematically purchasing properties to turn formerly ‘Sinhala’ villages into Muslim-dominated entities) can act as cultural trigger where those who talk the religion but may not practice it preying on natural social fears. 

The Buddhist response would be to treat things with compassion, which would require Buddhists to draw on the principles of tolerance and empathy.  If wisdom is also employed, as is required according to Buddhism, then the wise thing would be stop eating meat altogether.  Consumption of meat is not necessarily forbidden, but since animal turns to mean only consequent to slaughter, and since slaughter does not sit with the Buddha Vacana (May All Beings Be Happy), then abstinence is a choice that takes a culturally unpalatable situation and turns it into a reason for walking closer to prescribed path. 

The attacks on Muslims and Islam, and especially the vilification on sites such as Facebook are quite antithetical to Buddhist teachings of tolerance and equanimity.  They have been quite rightly condemned.  Some of the condemnation of course comes from those who have an axe to grind with Buddhism and Buddhists, ever ready to vilify but extremely reluctant to point error in other religions, their churches or followers.  Such people use the erroneous and misleading blanket descriptive ‘Sinhala Buddhists’  which is as bad as conflating Tamils and the LTTE.  The criticism, however, remains valid.

If these so-called ‘Buddhist’ groups are in error in their vilifying thrusts, so too, sadly, are some of their detractors, many of whom believe that only the majority community needs to be rebuked fearing perhaps that if other communities are found fault with (as collectives or partial entities or individuals) it amounts to being racist, chauvinistic, religiously intolerant etc. 

A classic case is that of the furor over allegation of Tamil versions of the Law College Examination being leaked.  Now this is a competitive examination and the facts certainly raise questions that compromise the integrity of the examination in ways that are far more serious than a leaking of an Ordinary Level examination.  And yet, this has been a touch-me-not issue for almost all commentators who have intervened in the ‘Halal Controversy’. 

If Sri Lanka is to be a nation of less paranoid communities it is imperative that each individual and each community looks within.  Sinhalese and Buddhists have shown exemplary tolerance in years gone by.  In Europe the only ‘religious’ holidays are Christian and in countries dominated by Muslims there is even less recognition of other faiths.  The intolerance of the Swiss is a well concealed fact that came out when a referendum was held about mosques.  There’s nothing in Sri Lanka akin to the issuance of Fatwas as are common in Muslim countries.  These are good things to think about. 

In the end though, deeper reflection on faith and an abiding by the relevant doctrine would make for better engagement with religious others.  In the end all human beings, regardless of faith, share the same will to live and the same apprehension about death.  If a symbol of co-existence is required, take any mosque in any part of the island and the chances are there is a Bo sapling coming out of some crevice.  It doesn’t say anything about either faith, but the togetherness is a lesson that can be learnt. 

['The Nation' Editorial, January 6, 2013]

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It is time to un-‘develop’ our minds

We are a few hours away from the year 2013.  The world has not ended and the signs are it will not.  Strangely, the end of the world sometime in late December was the most looked forward to event of the entire year, beating by a fair margin the Olympics, the US Presidential Election and the T-20 World Cup.  Well, it looks like Doom’s Day prophets have called it a day. For now. 

A calendar year is ending and a new year beckons.  It’s naturally a moment to look back and look ahead, to think about the what-have-we-done and also the what-should-we-do.  If the whole world’s-end hoopla taught us anything, it must be that we are collectively ignorant.  We just don’t have the ability to predict.  And if anyone is to be blamed it is ourselves. 

Now it is not the case that the world has been spared natural disasters.  Earthquakes, cyclones, tsunamis, droughts, floods, famine, epidemics and such are not unknown to the world.  Our ancestors saw and suffered.   They also knew war.  .  And the wars they fought, won and lost, were nothing like the conflagrations the world has known in the past century.  What they didn’t have then was ‘development’.

There was a time when we had seasons: when we knew when it would rain, for how long, in what quantity and where.  We knew about inter-monsoonal rains.  Again, our ancestors knew enough about rainfall and where the rain would fall and where it would not.  So they planned for drought.  They built sophisticated irrigation systems.  They knew enough about ecology to be circumspect in how they engaged with the natural world, especially since they were equipped with technological know-how capable of causing much destruction to ecosystems. 

‘Development’ changed all that.  ‘Modernity’ changed all that.  ‘Modernism’ and ‘Develomentalism’ changed all that.  Capitalism and Communism in their various articulations changed all that.  These things spawned hordes of profit collectors and do-gooders (some naïve, some now) who wanted to modernize and develop societies that were deemed to be archaic and underdeveloped. 

Things that worked were called ‘traditional’ or ‘crude’.  Values and customs that built civilizations and sustained societies were tagged ‘heathen’.  Those who did not require salvation were sought to be ‘saved’.   And when it became clear that ‘the good life’ comes at a cost (environmental degradation to the point of ecosystem collapse and frenzied competition for resources resulting in wars), the do-gooders, so-called, said ‘people need to have choices’.  They should, in other words, be able to choose between 10 brands of footwear, each brand offering a range of choices for the ‘sophisticated’ consumer.  The consumer, at the end of the day, is much like his or her less needy ancestors, endowed with just two feet. 

But everything we see, hear, taste, touch and smell come with three tags: loba (greed), dosha (envy/hatred) and moha (delusion/ignorance).  They come with an invite: ‘Come, embrace and embrace tight!’  Delusion is a pernicious operative for it persuades us to destroy all that we have in the belief that this is a necessary condition for obtaining what we don’t have and didn’t need but have come to believe we must have in order to secure meaning in our lives.  We throw away what we have (traditional knowledge, climate-specific seeds, ethics of giving and sharing etc) to obtain membership in a throw-away society; so that we can be called ‘developed’ and ‘modern’, where the tag-giver deliberately leaves out the obvious suffix, ‘fools’. 

The world did not end as predicted, but there are many worlds that are ending or rather are being ‘ended’.  That process should be stopped.  We have ‘developed’ for quite some time now and have very little to brag about.  Perhaps it is time to undo certain things.  Perhaps it is time to un-develop.

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The original sin of selection

The fate of the Chief Justice is now officially in the hands of the Parliament and thereafter the President, in the event that Parliament recommends removal from office.  The fate of the dignity of her post, parliamentary procedures, impeachment processes and the nature of power separation between the executive, judicial and legislative arms of the state will remain a matter for constitutional amendment, interpretation and the extent to which the primacy of public will and public trust congeal within these institutions and processes. 

Time will tell. 

For the last several weeks the rhetoricians have ruled.  The law and due process have been overshadowed by a preference for emotional outburst.  The nation Is used to parliamentarians behaving like hooligans, so their outbursts don’t surprise any more.  However, when lawyers (individuals who are supposed to ponder words spelled out in black and white) resort to smashing coconuts and appealing to astral entities whose existence is fictional, only those motivated by narrow political objectives can cheer. 

All things in this world are subject to the timeless truths of birth, decay and death. People come and go. Institutions are more resilient but are themselves subject to alteration.  Individuals can resign or be sacked, but the posts they hold survive them.  One can impeach a Chief Justice or a President, but one cannot retire the post of Chief Justice or sack the Presidency without risking anarchy unless alternative structures of justice-determination and executive authority, respectively, are legislated. 

While political circles have been busy pontificating on the legality of process, pointing fingers about vindictiveness and high-handedness, the manufacture of guilt and so on, there’s been a conspicuous silence about the genesis of the current tension between executive and judiciary, which has translated into a legislative-judiciary battle. 

The Constitution provides for appointment and removal.  The current debate focuses on ‘removal’.  The point is that ‘removal’ is consequent to appointment.  The public service does have recognized and established procedures of appointment.  Over the years, these rules have been bent for reasons of political convenience. On certain occasions even laws have been changed to facilitate appointment and promotion of favorites and the politically and administratively pliant. 

If the CJ is found to have been out of order, then the question that needs to be asked is ‘was she not properly screened?’  It goes for other ‘high posts’ too, including diplomatic postings.  Whatever the confusion regarding propriety of impeachment process may be, there is absolutely no doubt that this country woefully lacks a process of screening candidates to important positions in the administrative service and of course the senior most position in the judicial system. 

For all its many flaws, the system in the USA is far more stringent when it comes to screening candidates.  There are congressional and senate committees where candidates are grilled not just on track record, but decisions made and all manner of affiliation, official, semi-official and private.  In Sri Lanka, the notices for submission of public query come late, in small print and are largely ignored.  The signature of the process, if there be one, is rubber-stamping. 

In the case of CJ-appointments, especially since 1978, we have seen ‘friends’ being favored over seniority and competence.  This has led to an erosion of trust in both appointer and appointee.  The current tensions make for an ideal situation to revisit the appointing-moment and correct the obvious flaws which have at least in part snowballed into what some have called a constitutional crisis or worse a crisis of the state. 

Individuals come and go; systems are more sustainable.  Flaw in system naturally lead to error in selection and exacerbate the ill effects of a flawed appointee.  The entire script then has to be revised.  From scratch.  ‘Scratch’ here would be ‘appointment moment’. 

If one positive is to emerge from what has turned out to be a bitter and invective-filled process that is unhealthy to society as a whole, then it is a firm decision by all concerned to correct the relevant statutes on selection.  If we get it right at the proverbial ‘Square One’, future generations will be spared the hooliganism from all quarters as such we are witnessing today. 

['The Nation' Editorial, December 9, 2012]

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Aney Haamuduruwane!

There is a school of opinion which holds that the clergy should not be involved in politics.  In fact UNP MP Wijedasa Rajapaksha has called for constitutional measures prohibiting clergy from entering Parliament, which would of course see his party man Eran Wickramaratne being barred as well, a fact which neither individual has dared comment upon.  The merits and demerits of such a move notwithstanding there is no escaping the fact that every single citizen has a right to opinion and the expression of the same, subject to the caveats pertaining to character assassination, libel and so on.   Everyone makes choices and very few choices are apolitical.

 

As such, no one can complain about the Maha Nayaka Theros expressing opinions on matters of national import, including that of the present tensions between the legislature and judiciary.  They can write to newspapers, make speeches and even express views privately.  Whether or not such privately expressed views are thereafter published for purposes unintended is a matter they may or may not know about or care about, but that’s not the point.  They have the freedom to express. 

The word of the Prelates needs to be listened to by all, of this there is no argument.  They may not get it right, but that’s a different matter.  They have on many occasions made political choices, some of which have been detrimental to the country and the people, which too one can dismiss as decisions prompted by notions of the wellbeing of all albeit based on incomplete information and inadequacies pertaining to reading the political.  Opinion is opinion, however, and as citizens they have the right to express views. 

So there is nothing wrong about the Maha Nayaka  of the Asgiriya Chapter the Most Venerable Udugama Sri Buddharakkita Thero chit-chatting with anyone, even with the US Ambassador Michele J Sison.  The Venerable Thero has every right to talk about anything with anyone; even the US Ambassador and even about the current tensions between Parliament and Supreme Court.  The Thero can pass judgment too.  By the same token the Thero will also be judged, with all due respect. 

Sison asked about the impeachment motion against the Chief Justice, as she is entitled to, and the Venerable Thero responded, as is his right.  It was then, not just a courtesy call, but a visit to play agent provocateur as has been the not so side-role of US diplomats all over the world. 

Now it would be childish to say that the Maha Nayaka Thero is part of an international conspiracy led by the USA against the Government.  The question is, why even bother to discuss the subject with someone whose government cares next to nothing about justice, fair play, decency, propriety and such in domestic or international affairs.    It is certainly not something one expects from those who are often referred to as the Mura Devatavo (Guardian Deities) of the nation. 

The Venerable Thero perhaps out of courtesy is reported to have referred to acts of friendship.  Perhaps, again out of courtesy, the Venerable Thero kept silent on unarguable acts of aggression and enmity.  Perhaps out of ignorance, we could add, but let’s err on the side of compassion here.  Either way, circumspect ought to have been demonstrated.  It was not.  Pity.  

 

 

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Floundering without integrity and ethics

There are two processes before us.  In one, a set of judges whose career advancement is tied to decisions taken by a body presided over by a particular individual, deliberates on the constitutionality of a second and simultaneous process that seeks to oust that very same individual.  In the second case, a set of people also sit in judgment over the conduct of that individual.  The majority of this group share membership in a political party with another set of people who have petitioned for the individual’s ouster. 

It is all legal, subject of course to interpretation of relevant constitutional articles, an exercise, as pointed above is as marked by ‘interest conflict’ as the one being determined on.  The political battle will be fought with both rule-sword and interpretive-sword.  Other arms and ammunition cannot be discounted here, for history is replete with many examples of out-of-court settlement, so to speak, where the settlers don’t necessarily cover themselves with glory. 

As things stand, though, personality, error, ego and expedience have taken center stage, where the players strut around as public-interest litigators and are egged on by cheering squads who have their own agenda. 

The one thing that is clear in all this is that somewhere down the light a few characters left the stage or rather they were robbed of scripted line and pause.  It is an indictment of our society that we haven’t noticed their exits, absences or silence.  Ethics has left the building.  Integrity has quit.  Their clothes have been robbed by the other players who prance around as though they’ve got the garments, undergarments, skin, bone, flesh and organs as well, heart included! 

It cannot be by accident that Justice C.G. Weeramantry in this year’s Lalith Athulathmudali Memorial Lecture chose to speak on Judicial Ethics (experts of his speech can be found elsewhere in this edition of ‘The Nation’).  One of just 5 individuals to be honored with the title Sri Lankabhimanaya (Pride of Sri Lanka), he is in fact someone who deserves a global title on the same lines, few would disagree.  A patriot in the finest sense of the word, Justice Weeramantry’s choice here needs to be read as a serious and tender exposition with malice to none that is acutely aware of the aforementioned processes.  

It is not just about the judiciary.  He speaks of all the key institutions of the state, the way they relate to one another and how and why they need to be independent of one another, subject to the irreducible non-negotiable: integrity.  That’s not something you can legislate for; it is not something you can script in.  It is a choice made by the particular individual. 

Words (read as laws) are important and necessary but not sufficient, he reminds us: ‘strong  words in a constitution regarding judicial independence can very easily be undermined in practice, unless all members of the executive and the public act in the spirit of this constitutional provision’. 

This ‘independence’, he cautions, must be tempered with a conscious effort by judges ‘to rise to the highest levels of rectitude necessary to discharge the hallowed duty that rests on them of delivering justice, pure and unadulterated, to those who come before them’.  That ‘rectitude’ has been observed, sadly, in the breach. 

‘Observed in the breach’ is, equally sadly, not the preserve of the judiciary.  The current machinations by movers and shakers in these critical spheres of the state scream for constitutional amendment.  And yet, such tweaking can only take us so far. 

The doors must not only be opened for the re-entry of integrity and ethics, but it should be ensured that these entities preside over everything that happens. 

We are a long way from that and that is because all of us, as individuals and collectives, booted them out of the building.  Easy to throw out, hard to recall. 

['The Nation'  Editorial, November 25, 2012] 

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