Sophomoric legislators cannot fix constitutional flaws

Constitutional reforms is a serious business, whether it is an amendment or a new document altogether. Even ordinary bills and acts of parliament are serious affairs. Such things require lawmakers, the Attorney General’s Department, the judiciary and the general public to act with sobriety and responsibility.  

The basic premise of any new piece of legislation is that whatever exists is insufficient or flawed. That, however, is just one reason for attempting correction. It is (too) easy to use the horrendously flawed Second Republican Constitution (of 1978) as an excuse for (any old) amendment. ‘It can’t get worse’ is tired, silly and unethical reasoning for the simple reason that it (indeed!) can (get worse)!

Just think of all the amendments since 1978. Lawmakers didn’t exactly cover themselves with glory in those exercises. The most recent was the 19th Amendment. From draft to legislation makes a case for how not to engage in constitutional tinkering. The Supreme Court shot holes in the draft. The lawmakers did not amend the draft but almost rewrote it, leaving contradictions and grey areas. It was a shortsighted and mischievous piece of legislation, to put it mildly. Let us just mention, in passing, the following: a) presidential powers to dissolve parliament, b) the appointment and removal of the prime minister, c) the notion of a national government to circumvent limitations on cabinet-size, and d) a politician-heavy constitutional council which effectively mangled the idea of ‘independence’ in related institutions. 

Since the Supreme Court determination on dissolution, there’s two documents before Parliament. First, the (new) 20th Amendment tabled by the JVP seeking to abolish the Executive Presidency, and secondly a new constitution, as per a TNA need, based on recommendations by the so-called committee of ‘experts’.  

The merits and demerits of both exercises can be debated. Obviously, the second would make the first irrelevant. But what’s crucial to understand here is the fact that this parliament has proved beyond a shadow of doubt that it is incompetent when it comes to its fundamental purpose — law-making. 

The Parliament made a mess of electoral reform, in effect replacing the existent proportional representation system with another proportional representation system, despite the rhetoric to the contrary! Today, across the political spectrum, people seem to have resigned themselves to reverting to the previous system, which each and every one of them deemed to be flawed, made for thuggery, the movement of vast sums of money and other ills.  

We saw how they went about with the 19th Amendment. The proposed 20th Amendment shows how shortsighted and silly the JVP is, since it seeks the abolition of the executive presidency without accounting for the dangers of such an eventuality given the existence of the 13th Amendment (which moreover was constituted in the most undemocratic manner). 

Now we have the ‘new constitution’ circus. The JVP has opposed it. Sections of the ruling coalition, especially the JHU, has objected to it. The TNA, as expected, whines about people being ‘political’ — as though politics is something absolutely alien to that party! The chances of a new constitution, therefore, are slim. That’s not something bad, even though the current constitution simply cries out for replacement. ‘Not bad’ because we just cannot trust this Parliament to do anything right regardless of intentions, which too they have taught us not to trust.  

However, there is the danger of this utterly sophomoric set of legislators hoodwinking the masses by leaving intact articles whose repeal could spell trouble while surreptitiously inserting others that make those very same articles irrelevant (just like the articles pertaining to dissolution in the 19th Amendment). They can retain terms and notion (e.g. ‘unitary’ and ‘foremost status of Buddhism’) and throw in things that make them meaningless. They can’t make decent laws but they seem to be experts at the indecent end of things.  

The question is simple: considering that this set of parliamentarians have demonstrated incompetence, proved they are either hooligans or have directly or indirectly sanctioned hooliganism, that electorally, the UNP, SLFP and JVP (making up a majority) have lost their standing and even legitimacy in the eyes of the voting public, and have abused power in numerous ways, can we and should we trust them with tinkering with the constitution? The answer is pretty obvious: No!  

The constitution needs to be changed, yes, but not by these people. We just cannot trust them to do anything right. We cannot trust them to ensure that the sovereignty of the people is kept intact. 

We can trust them to do just the opposite. 

RELATED ARTICLES

Justice delayed is justice affirmed, apparently

The 19th Amendment: blessing or curse?
The before and after of the Supreme Court decision on dissolution

Citizens as 'suckers'

'ප්‍රජාතන්ත්‍රවාදය උදෙසා සටන් කරන ප්‍රජාතන්ත්‍රවාදීන්' වෙත ආදරයෙනි

So who's cheering the 19th Amendment now?

Democracy is alive, ladies and gentlemen

How about some sovereignty for a change?
Sri Lanka's democracy-deficit
Who the &^%$ is Maithripala Sirisena
Karu Jayasuriya: A man besieged 
Hypocrisy in the name of democracy
From DS to RW: The Decline of the United National Party
Selective tear-shedding in seasons of demagoguery

The Supreme Court and Constitutional Clarity

The 19th Amendment should be revisited

Constitutional Reform Poisons: personalities, parties and outcome-preferences

malindasenevi@gmail.com. www.malindawords.blogspot.com

Read more

The 19th Amendment as a plaything of the UNP

It is reported that the Government has decided to seek the opinion of the Attorney General on the possibility of increasing the size of the Cabinet of Ministers to 32. The argument is that the President and Prime Minister should not be included in the 30 member cabinet, as limited by the 19th Amendment. The Government is therefore seeking a green light considering the legal ambiguity.

Interestingly, one of the main figures in the making of the 19th Amendment, Jayampathy Wickramaratne, claimed recently that ‘The National Government’ which allows Parliament to decide the size of the cabinet, continued to exist despite the United People’s Freedom Alliance (UPFA) withdrawing from the government, because, in his words, ‘the Sri Lanka Muslim Congress (SLMC) continues to be in it.’

If this constitutional expert of the United National Party (UNP), who also helped author the 19th Amendment, believes that we still have a national government, why is Ranil Wickremesinghe’s government sweating over numbers, one must ask.

The 19th amendment is a remarkable piece of legislation. For all the wrong reasons, one must add. The authors were first rapped on their metaphorical knuckles by the Supreme Court which determined that sections of the draft  were unconstitutional and would require two-thirds support in Parliament plus endorsement through a referendum in order to hold. Interestingly, the Supreme Court probably drew from a determination it had delivered way back in 2002 in a case filed by Wickramaratne himself, where he pleaded that the President’s powers to dissolve Parliament cannot be taken away by Parliament. When the 19th was tabled in Parliament, a dissolving clause was included, probably in view of the SC determination. That was the genesis of the confusion. In essence, then, the SC revoked an earlier decision when it determined that President Maithripala Sirisena did not have the power to dissolve Parliament, rendering the dissolution article meaningless.

We have to conclude that the 19th was a piece of legislation that was written and voted for by sophomoric lawmakers. Wait, there’s another explanation: it was a deliberate exercise in constitutional tinkering for partisan reasons; in other words for the benefit of the UNP! 

Some basic questions would put the matter to rest. First of all, why couldn’t the likes of Wickramaratne and Sumanthiran come up with a draft that was ambiguity-free with regard to dissolution? Secondly, why did they offer a vague definition of ‘national government’ that made it possible for people like Wickramaratne to come up with the absurd claim that a UNP+SLMC arrangement would fulfill ‘national government’ criteria? Thirdly, why did they make a mockery of ‘independence’ when legislating the composition of the politician-heavy Constitutional Council?

It is against all this that we need to examine the current dola-duka of the UNP government regarding increasing cabinet-size. Clearly, that party doesn’t give two hoots about promises made to the electorate. That’s not surprising since one of the key leaders of the UNP, Mangala Samarasinghe, once brushed aside manifestos as being irrelevant once elections are done. This is obviously not something that is important to the sad bunch of pro-democracy activists who came out of the woodworks recently when it appeared that Sirisena had well and truly trumped Ranil Wickremesinghe and the UNP.  

Why 32? What’s this fascination with increasing cabinet-size? Who does Wickremesinghe want to pencil in? What checks are being submitted by whom for what kind of services rendered, are we permitted to ask?

The composition of the Cabinet itself is a damning indictment on the Prime Minister and his government. Starting from the top, we have Wickremesinghe, who is close to 70 years of age, as Minister of Youth Affairs. We have a ministry for ‘Kandy Development’ which begs the question, ‘doesn’t the logic require ministries for every major city in the country?’  Ravi Karunanayake, who is either the man at the centre of the Central Bank bond scam or at best a front man for Wickremesinghe, has a portfolio — need we say more? We could say more. Rishad Bathiudeen, accused of illegal and communalist settlement exercises is the Minister of Resettlement of Protracted Displaced Persons. There’s a ministry for ‘Dry Zone Development’. Why not ministries for the development of other climatic zones? Malik Samarawickrema didn’t want a ministry, but he got one. 

To be fair, Wickremesinghe has not done any worse than his predecessors, dating back to J.R. Jayewardena’s time. Then again, the UNP in its good governance avatar was supposed to do things differently. Cannot? Will not? Will not, obviously! 

As things stand, then, we can safely conclude that the democratic credentials of the UNP are toilet wash.  We can conclude that not only was the 19th Amendment a careless piece of legislation that’s marked by multiple flaws, the ‘errors’ were deliberate and designed to favor the UNP. 

Today, ladies and gentlemen, what we see is the UNP and Ranil Wickremesinghe stretching or contracting the 19th Amendment in accordance with their political needs. Those who operate in this way do not deserve to be protected and those who have and continue to protect them (in the name of democracy) have to be considered accessories after the fact of constitutional tinkering, crass political expedience of an anti-democratic political formation and twisting of mandates for partisan reasons.  

Yes, the 19th Amendment is a remarkable piece of legislation and one that should be studied carefully by students of politics, law and constitutional reform. In terms of process and product, it stands out as an excellent example of how not to write laws. 

Related Articles:

The before and after of the Supreme Court decision on dissolution

Citizens as 'suckers'

'ප්‍රජාතන්ත්‍රවාදය උදෙසා සටන් කරන ප්‍රජාතන්ත්‍රවාදීන්' වෙත ආදරයෙනි

So who's cheering the 19th Amendment now?

Democracy is alive, ladies and gentlemen

How about some sovereignty for a change?
Sri Lanka's democracy-deficit
Who the &^%$ is Maithripala Sirisena
Karu Jayasuriya: A man besieged 
Hypocrisy in the name of democracy
From DS to RW: The Decline of the United National Party
Selective tear-shedding in seasons of demagoguery

The Supreme Court and Constitutional Clarity

The 19th Amendment should be revisited

Constitutional Reform Poisons: personalities, parties and outcome-preferences

malindasenevi@gmail.com. www.malindawords.blogspot.com

Read more

Democracy is alive, ladies and gentlemen

What’s the talk of the town? ‘The town’ of course can be anything from Cinnamon Gardens to Hokandara to Debarawewa. If you are talking about Cinnamon Gardens as the trope that it is for a significant portion of the decision-makers of the United National Party (UNP) and those who balk at power shifting to Debarawewa (or Kebithigollewa or Karandeniya or Kachchativu), then the talk is all about democracy.  

And democracy (or its subversion) was SUDDENLY noticed.....!

Here are some of the low-tone rumbles that are making the rounds in that particular echo chamber: ‘Democracy is under serious threat,’ ‘we need to fight to the last to safeguard democracy for future generations,’ ‘this is not about Ranil, it’s about democracy,’ ‘this is not about us, but about all of us (i.e. the entire nation).’  Well, considering the deafening silence of most of these born-again democrats (the Sinhala term is better, ‘heenen bayavunu prajaathanthravaadeen’ or ‘democrats waking up from a bad dream’) on all anti-democratic moves by the UNP from DS to Ranil and not forgetting JR and Premadasa and in particular the dictatorial party constitution and post January 2015 subversions, we can safely say ‘it’s about you, it is about Ranil, it is about the UNP.’

In their case, it’s a matter of outcome-preferences framing political comment. In the case of the less partisan, the outcome-fears (‘If Mahinda returns, he will bring back the 18th’) overrides all.  And so, they conclude (prematurely) that a) the removal of Ranil Wickremesinghe as Prime Minister and the appointment of Mahinda Rajapaksa in his place was illegal and unconstitutional, and b) the dissolution of Parliament was illegal and unconstitutional. They conclude, therefore, that Speaker Karu Jayasuriya is a hero (never mind that he flouted procedures he was almost worshipping a few months ago).  

The ‘other lot’ is no different. They have their outcome preferences, they have their fears. They will happily conclude that the President was acting constitutionally, never mind the high-handedness, never mind that if the UNP lost mandate and political legitimacy on February 10, 2018, so too did Maithripala Sirisena. 

But let’s focus on democracy.  

Fact: we got a terrible constitution in 1978. Fact: of the 19 Amendments passed since then, 18 were partisan and favored incumbents. Fact: the 19th amendment was flawed. Fact: the architects of the 19th, in particular Jayampathy Wickramaratne, the ardent backers (the UNP and the NGO cheering squad) and the ‘aye-sayers’ including those in the Joint Opposition except for Sarath Weerasekera, are guilty of irresponsibility if not utmost imbecility.  

A polity is not made of a constitution alone. Democracy is not a synonym of either constitution or parliament. In these things, people count. In these things process matters. There are times when limits, especially those couched in vagueness, need to be tested. This is one. Whether Sirisena’s intention was to test limit or otherwise is immaterial. 

At the end of the day, the law-makers appear to be stumped. The President, for all the power-curtailing, has prevailed and in prevailing, at least for now, has thumbed his nose at the architects of the 19th Amendment and its approvers. Hopefully, the courts will offer clarity on all the vagueness that the executive and legislative branches of the state have together inscribed. At the end of the day, also, everyone is learning that constitutions are not cast in stone, that there are no accidental errors (no, not even the discrepancies in Sinhala and English and possibly Tamil versions), and most importantly, the people need not get into fisticuffs on behalf of their so-called representatives. If Parliament is a joke and parliamentarians are jokers, let them do their thing — we can laugh. That seems to be a common enough response.  

Let’s assume this happened in some country in Europe or even some other South Asian ‘democracy’.  There would be riots, it is safe to assume. By and large, Sri Lankans have determined, ‘it’s none of our business’.  It is our business, true, but then it seems more prudent to let the courts have a say before the streets do. Those who are street-bound are essentially a partisan lot; the majority will have none of it. That’s healthy. There’s a time for agitation, this just isn’t that time. The diehards will rally around their leader(s), i.e. either Ranil Wickremesinghe or Mahinda Rajapaksa, but let’s not fool ourselves into believing that they are doing this for ‘all of us’ or for ‘democracy’.   

The ‘us’ of it all, is biding time, it seems. ‘Our’ time may or may not come soon, but it will only be at the politically auspicious hour that ‘we’ will speak, it is safe to assume.  Here’s a Facebook post (pruned and edited to capture the essence) that captures some of that ‘us-sentiment’:

‘The people of our country have been behaving exceptionally well. If any other country were had a headless state, life would have been grim, but the lack of a Government has not deterred nor derailed our ppl [people] from their daily paths. Even though the macro environment is worrisome, focus is not lost. It proves we don't need the 225 donkeys to govern and even if they did or didn't no one seems to give two hoots. It proves our people our innately good, have the power to regard or disregard.  Hopefully we will continue to be calm and collected, draw up the courage from our 2500 years plus culture and do what needs to be done to get over this speed bump and put our country back on track.’

So what’s this hullabaloo about democracy then? Perhaps the answer can be found in an insightful observation made at the inauguration of the Sri Lanka Freedom Party by S.W.R.D. Bandaranaike on September 2, 1951.

SWRD at the inauguration
of the Sri Lanka Freedom Party

‘It will be thus seen that unlike other countries such as India, Pakistan, Burma, Indonesia, Ireland, etc., which advanced to Freedom through the instrumentality of Mass Movements based on clear-cut principles and policies, our Freedom Movement was really one proceeding from the top and cut off to a great extent from the masses (SWRD had previously referred to D.S. Senanayake and his aides getting the Soulbury Constitution amendment to obtain Dominian Status ‘without placing amendment before country or parliament but prepared according to Mr Senanayake’s personal views — hint, hint). It has created a feeling in the minds of some people that our freedom is not something that the people have obtained but one that a few individuals have succeeded in getting, and one therefore that is looked upon to a great extent as the private property of these individuals, the benefits of which should be chiefly enjoyed by them. It is this psychology that is chiefly responsible for the nepotism and cliquism which our rampant today and for the reluctance to deal effectively with the many important problems that face us, a free country today, particularly in the context of the present trend of world affairs.’

SWRD’s own errors and culpabilities notwithstanding, this could be read as a damning account of the born-again democracy-brigade of today. This year marks the 200th anniversary of the 1818 Rebellion and the capture of Keppitipola. Democracy was blood-less and something we owe the D.S. Senanayakes, they believe and/or would have us believe and therefore it is an elite-birthed project for the benefits of political progeny, they seem to think. No wonder that the general public are not inspired by their siren call to save democracy from ‘the yakkos’.  

Well, the masses appear to know what’s what. In retrospect one might conclude that they knew the dangers of electing Ranil Wickremesinghe in 2005 and knew the dangers of re-electing Mahinda Rajapaksa in 2015. It is unlikely that they have any illusions about these two individuals or about Maithripala Sirisena. They know better than democracy-experts that democracy was always an unholy creature which didn’t die on October 26, 2018, and moreover has to owe its longevity to the people, who have been patient and have largely refused to purchase all the lies about it. They know what it is and what it is not. They don’t need tuition on the same.  

malindasenevi@gmail.com. www.malindawords.blogspot.com

Read more

Executive, legislative and judicial branches of the state: ALL OUT OF ORDER

SYSTEM ERRORS MUST BE ELIMINATED!

The presumption of innocence until and unless proven guilty is one of the foundational and sacred principles of the judicial process.  So let us not be presumptuous.  However, let us state some established facts.

Nagananda Kodituwakku, Presidential Candidate 2020 and a public interest lawyer has written to the Registrar of the Supreme Court requesting that several cases he has filed not be listed before certain judges he has mentioned by name.  

The cases areas follows: the abuse of National Lists (SC/Writs/05/2015), abuse of tax-free permits by MPs (SC/Contempt/03/2017), destruction of ancient Buddhist religious places of worship in the Northern Province (SC/FR/309/2015), judicial corruption (SC/Writs/03/2016), abuse of public office to defraud government revenue by P.B. Jayasundara (SC/Writs/04/2015), and a ruling against lawyer/activist Nagananda Kodituwakku (SC/Rules/01/2016).

As mentioned above, let us not be presumptuous; the accused have not been found guilty.  What is interesting is the issue that has prompted litigation, in short failure to fulfill constitutional obligation with respect to the (alleged, as of now) illegality of the 14th Amendment, that piece of legislation allowing those rejected at the polls to be accommodated in Parliament through ‘National Lists’.  The relevant judges, Nagananda charges, refused to offer determination and instead passed it on to someone else.  

For the record, the passage of the 14th Amendment in 1988 (just before the United National Party lost its two-thirds majority perniciously obtained through the anti-democratic measure of the 1982 referendum), violated established procedure.  The then President, J.R. Jayewardena submitted a note to the then Chief Justice requesting a determination on constitutionality. 

The 14th Amendment was not included in the Order Paper of Parliament.  It was not gazetted.  The people were not given sufficient time to assess its worth and if thought fit to make submissions to the Supreme Court on the issue of legality.  In fact this particular draft was used to throw out another draft on the same subject that had actually adhered to established procedure.  

It’s obviously a can of worms, but one which has now been opened thanks to a case filed by DEW Gunasekara (possibly inadvertently, according to Rajan Philips) after he was denied a slot in the SLFP’s national list in August 2015, and thanks to the untiring efforts of his lawyer, Kodituwakku.  What it affirms (that’s a soft word which does not mean ‘proves’) is the widely-held notion that the judiciary either functions under the control of the executive or is given to betraying the judicial power of the people that it is mandated to exercise purely on trust.  If it’s a matter of not wanting to incur the wrath of the executive, then we are poor indeed as a citizenry and our sovereignty is not worth the ink used to write the word. 

This particular case, then, involves all three organs of the state, the executive, legislative and judicial. It forces us to wonder why the recent enthusiasm shown by the Government for constitutional reform has tiptoed around the issue of the National List, the illegality of the 14th Amendment and making room for people who have failed to win the trust of the people to legally represent them in Parliament.  

It is in this context that constitutional reform proposed by Kodituwakku need to be discussed.  He has made several recommendations which he believes would make for a corruption-free institutional arrangement where the sovereign rights of the people are upheld at every turn, especially in the courts.  

Among the measures recommended are the following: Ensuring that judicial power of the people shall be exercised by the judiciary, the introduction of the right to judicial review, removal of immunity afforded to the executive president, the removal of the ‘Urgent Bill’ provision, extension of the citizens’ right to reference fundamental rights alleged to have been infringed to a period of six months, the introduction of accountability criteria for the judiciary, prohibition of any judge to take up any position in either the public or private sector after retirement, restricting promotions in  the entire judicial service to career judges on the basis of merit and merit alone, introduction of a case management system with mandatory compliance provisions guaranteeing the speedy disposal of cases, removal of the unlawful court vacation system, and introduction of public interest disclosure law. 

In addition, Kodituwakku has called for the number of MPs to be limited to 125 and the size of cabinet to be limited to 12. Citizens would also be empowered to recall MPs for abuse of office.  He has recommended sweeping changes to the political party system and the process of elections as well radical reform pertaining to labour rights.

What is interesting is that for all the talk of democratization, there has been very little interest on any of these important issues from the lords and ladies of good governance, be they NGO activists, academics or political commentators.  One hopes that given the courage shown by Kodituwakku in a) taking up these issues in court, b) putting his entire career in jeopardy simply because he has proven to be an irritant in court thanks to his forthrightness, and c) bringing it all into the public domain by announcing his candidacy, all these forces will now support the call for constitutional reform along the lines he has detailed.

Kodituwakku has humbly stated that it is not about himself and we have no reason to believe otherwise.  The reforms proposed are not only pro-citizen but they are aimed at correcting fundamental flaws in the entire institutional arrangement that have been neglected for decades, errors that have spawned other errors and rendered the entire edifice untenable.  

It is not the hour of Nagananda Kodituwakku and he will be the first to say it.  It is the hour of the citizen.  Your time.  My time.  Our moment.  Let us not fail to seize the opportunity.

Malinda Seneviratne is a freelance writer. Email: malindasenevi@gmail.com Twitter: malindasene

Read more

Cheating Sinhalese in proposal and Tamils through outcome

JVP leader Anura Kumara Dissanayake has made two statements regarding reconciliation via constitutional reform.  Firstly, he has said that a referendum on a new constitution should not be approached the way the Presidential Election was fought.  In that election, the Northern and Eastern Provinces overwhelmingly voted for President Sirisena, who was the default candidate of the United National Party and as such was backed to the hilt by the coalition led by that party.  

What Anura K is saying, then, is that in this instance voters should not back a UNP-drafted proposal.  In other words, as far as the JVP is concerned, this is not something to do with Mahinda  Rajapaksa and indeed is a larger issue that has little to do with regimes, regime-change, good governance and what not.  

The signal is that the JVP is opposed to the new constitution or at least those sections that refer to devolution.  Why the JVP cannot openly oppose the secrecy shrouding the process or detail the relevant articles to which they only hint that they object, is anyone’s guess.  

The second contention is that in the event that the new constitution is rejected at a referendum, the cry for ethnic-based devolution should be abandoned.  This provides a clue.  The draft new constitution clearly includes articles that go beyond the 13th Amendment in terms of devolving power to the provinces.  This is not surprising since the chief architects of the process, Jayampathi Wickramaratne, representing a party that would not win a single seat in Parliament in a first past the post system, is ideologically committed to such devolution.  Add to that the ideological preferences of Mangala Samaraweera and Chandrika Kumaratunga, and the intellectual sloth and political naivete of the UNP and we cannot expect anything else.  

That said, there is a serious political problem in Anura K’s second wish.  Why should defeat result in a dropping of a demand?  In the first instance such change of heart cannot be legally obtained.  Secondly, if electoral defeat must necessarily result in abandonment of political project, there are lots of things the JVP should have dropped a long time ago.  And not just the JVP, one might add.  

It is like saying that since there are laws against theft, thieves should give up on wrongdoing from  pickpocketing to misusing power and abusing trust to pull of heists worth billions through the manipulation of Central Bank bond issues.  Silly.

While we can attribute the formulation of such wishes by the JVP to anxieties about how much political bleeding the JVP could suffer from the enactment of such proposals (if endorsed by a referendum) and of course sophomoric thinking, the key issues are essentially being skirted here, by the JVP and by the Government.  

First of all, the question ‘why devolution in the first place?’ is not addressed beyond the crass regurgitation of the logic of Eelamist myth-modeling sans appropriate weight to all the relevant factors.  According to all indications, is yet another ill-conceived pandering to Tamil chauvinism marked by an absolute disavowal of history and a shameless and even dangerous refusal to factor in historical, demographic and geographical realities.  

It is also, in effect, a proverbial lifting of the sarong to the valid observations made by President Maithripala Sirisena with respect to the errors embedded in provincial boundaries which (need we even mention?) were arbitrarily drawn by the British and has been the ‘base’ on which the Eelam Map has been traced.  It’s a trace that Tamil chauvinism swears by and sections of the current Government are loathe to inspect.  That’s pernicious historiography compounded by pernicious approval by the very fact of nonsensical constitutional drafting.  

It is clearly incumbent upon governments to listen to grievances and to set in place structures and processes that allow for the rational treatment of aspirations where the true dimensions of grievances and the appropriateness of aspirations are correctly assessed.  One can argue that these structures and processes do exist.  What is lacking is the political will to do this important and necessary audit.  The formulation of ‘resolution’ where such ‘homework’ is not done is irresponsible and goes against the basic principles of good governance.  In the absence of such will the natural yield is ‘whim and fancy’.  

The fate of a people should not be put in the hands of whim-fancy politicians because such idiocy and irresponsibility do not yield reconciliation but rather exacerbate antipathies and produce bloodshed.  

What if, for example, the JVP went further and something of this kind: ‘include a caveat whereby a an overall “yes” for devolution requires all Tamils to live in the North and East’?  That would be unfair, absolutely.  On the other hand, therein lies the key problem about devolution predicated on chauvinistic thinking and the exaggeration of claims.  Close to half the Tamils live OUTSIDE the so-called traditional/historical homeland (whose histories and traditions at best remain unsubstantiated).  

Strong supporters of federalism are now swearing that this is not the right time to have a referendum.  It will be defeated, they claim, because ‘wounds are still new’.  They advocate a brainwashing of Sinhalese before putting the question to them.  That’s ‘democracy’ in their book.  In other words Anura K and the JVP need not worry, going by what the devolution racketeers are worried about right now.  Any ‘yes’ vote for such measures in Parliament would seal the political fate of the aye-sayers and perhaps even their parties, at least in the short term.  The President, at the right time, could pull out SLFP support.  That’s ‘goodbye’ to the two-thirds needed to get it passed in Parliament.  The UNP could tell Tamils that they did their best but the SLFP wrecked it and thus seek to retain the minority vote.  The SLFP will say that the UNP was trying to whack the Sinhalese.  A general election would see the UNP losing much ground among the Sinhalese.  Needless to say parties such as the TNA will tell Tamil youth that the Sinhalese will never yield anything.

This is what happens when you put the horse before the cart.  Reconciliation is scuttled.  The necessary starting point of the exercise has been missed.  Failure gets scripted, even if that’s not intended.  Sooner or later, after much pain, suffering and even bloodshed, we have to return to the beginning, the historical audit and the sober assessment of grievances and the equally sober consideration of aspirations.  

If the ‘beginning’ is to be painted in colours that are acceptable to Tamils, then the Vadukoddai Resolution is an excellent document to have on the table.  The claims therein could be evaluated with those affirming and negating bringing substance and not rhetoric to the table.  Anura K can find his voice, even.  

All of the above, we must not forget, has the danger of scuttling important deocraticising measures which may have been included in the draft.  The mishandling of Tamil chauvinism by the constitution drafting pundits can therefore wreck that other, more important project that is such an important part of Maithripala Sirisena’s manifesto.  We saw a similarly surreptitious move by the Chandrika Kumaratunga government in the year 2000.  Proposing the kind of ‘resolution’ that her political successors in this Government are currently pushing effectively resulted in keeping intact the executive presidency.  

These are the issues that the JVP could take up, if indeed they want to remain politically relevant into the foreseeable future.  As of now they are party to the insidious attempts by a few to cheat the people, the Sinhalese in the proposal itself and the Tamils through the most likely outcome.

Malinda Seneviratne is a freelance writer. Email: malindasenevi@gmail.com.  Twitter: malindasene

Read more

When government plays Enlightened One

This was first published in the Daily Mirror (January 15, 2015) under the title 'Bikkhu Vinaya: who should decide?'

There are moves to bring in new laws to define what is kepa (permissible) and what is akepa (prohibited) for the Buddhist clergy, i.e. theBikkhus.  Whether or not this has been prompted by requests from the Buddhist Order as represented by the Maha Nayaka Theros of the three Nikayas, we do not know.  In any event it is an initiative that resurrects the old discussion about the relationship between state and religion, whether the relevant institutions should operate independent of one another or, if not, what the rules of engagement should be. 

There are some primary objections and these should be dealt with first.   Nirmal Ranjith Dewasiri has made a relevant observation drawn from the notion of citizenship rights and the principle of equality (in a Facebook post): “All those who value religious freedom should unconditionally oppose the proposed laws related to the conduct of Bhikkus.  It is the particular religious community that should decide on the affairs of that particular religious community, subject to the laws of the country.  For example, it is not the state but the Buddhist Order that should decide whether or not a Bikkhu can apply for a driving license. If the state rejects the application for a driving license submitted by a Bikkhu it is simultaneously a violation of that Bikkhu’s rights as well as the Bikkhu’s rights as a citizen.  What is important here is his citizenship and not his status as a member of the clergy.” 

In other words, the state cannot set the rules and regulations of any organization, be it religious or otherwise, and can intervene only if these are out of order in terms of the overall legal framework of the country.  The state will not and cannot move to amend the rules and regulations, the articles of faith if you will, the articles of association etc., of scout troops, welfare societies, trade unions, blue chip companies or the bulathvita kade  tucked into an alleyway off a busy street.  The state will not and cannot dictate to the Chairperson or CEO of a company what the dress code ought to be.  As such this move is an infringement of and an affront to the basic principles of freedom enshrined in the Constitution, for example, Article 10 of Chapter III, ‘Freedom of thought, conscience and religion’.   

The state can and does set general rules for various sectors, for example companies (and within them sub-sectoral institutions such as banks and insurance entities for example) and cooperatives, but does not and cannot interfere with the details of the particular organizations with respect to behavior.  It cannot specify the menu for lunch, whether women can or cannot drive, or determine that only men can hold positions in the top management.  That’s silly, unethical and violates fundamental rights.

Perhaps a counter-example and the objections it could prompt might help.  Suppose an Act is presented to Parliament to say that the Catholic Church or any other church of a Christian denomination cannot own or run a school?  Suppose there’s an Act proposed to bar clergymen of such institutions from applying for a driving license? Suppose there’s an Act to open the Catholic priesthood to women?  What would we have?  First there’ll be howls of protest from the Religious Freedom NGO brigade and it’s academic and other adjuncts.  The US Embassy will express grave concern. The Asian Human Rights Commission will issue a statement as would Amnesty International and Human Rights Watch.  The Permanent Representative of the country’s mission in Geneva would be summoned by the head of UNHRC and perhaps even Ban Ki-moon.   That they are pretty much silent on this occasion tells of their selectivity and their mostly unspoken but clearly evident anti-Buddhist sentiments. 

Nirmal, in a phone conversation, brought up the valid issue of the insertion of ‘Buddhism’ into the Constitution, i.e. Chapter II (Article 9), regarding the foremost place given to Buddhism and the ‘duty of the State to protect and foster the Buddha Sasana’.  Nirmal argues that this is an invitation for interference of the kind that he objects to.  Well, firstly, it is one thing to ‘protect and foster’ and quite another to play class monitor, head mistress, ombudsman and the Vinayarakshaka  Sabha.  Also, just as there are constitutions and laws, there are also things like culture, history and heritage which inform their making.  “Secular” is not god-given, after all and neither is a constitution (or state) culture or religion free in word or application.   

Anyway, since the issue is discipline and applies only (therefore selectively and illegally) to the clergy of a single religion, Buddhism, there are legal as well as political and doctrinal objections.  The movers of this Act are assuming to have knowledge superior to the Buddha on matters pertaining to Bikkhu Vinaya or discipline. Whether or not the Buddhist Order and its membership in word and deed subscribe to the relevant tenets is of course something that the Buddhist Order should discuss, but it’s all there in the Vinaya Pitaka. 

The basic rules of conduct for bikkhus and bikkhunis (Patimokkha) are set out in the Suttavibhange and these are complemented in the Mahavagga and the Cullavagga with relevant elaboration for instructional purposes in the Parivara.  Whether or not the clergy abides by these or violates beyond the point of what is accepted as permissible in today’s context either through ‘error’ of omission or commission, is a matter for the Maha Sangha to deliberate and act upon.  It is NOT the business of the state, NOT the business of legislators.  

Law makers, whether Buddhist or otherwise, in addition to recognizing the fundamental error of this move in terms of articles enshrined in the Constitution, would do well to reflect on the arrogance of assuming equality or even superiority to the intellect of Siddhartha Gauthama, especially on matters of the Order he founded. 

Malinda Seneviratne is a freelance writer who can be reached at malindasenevi@gmail.com

Read more

Constitutional reform and the underside of ‘enabling’ mechanisms

Towards the end of 2009, Sarath Fonseka, convinced he would defeat Mahinda Rajapaksa, spoke of turning Parliament into a Constituent Assembly.  Today, six years later, there's talk once again of going for a similar option.  These thoughts written six years ago might be of use to those interested in constitutional reform.  

History is a fascinating subject.  History teaches us so much, especially in the patterning of events, the reappearance of personages and so on.  It also alerts us to the possibility of re-enactment and therefore allows us to act in ways to prevent tragedy.

These days I am thinking about the Nazi rise to power and the circumstances that saw the end of the Weimer Republic and the rise of the Third Reich and of course a man called Adolf Hitler.  Hitler, an Austrian-born German politician was a decorated veteran of World War I and leader of the National Socialist German Workers’ Party better known as the Nazi Party.  Fundamentally opposed to the democratic post-war government of the Weimar Republic and the Treaty of Versailles, Hitler advocated extreme nationalism, Pan-Germanism (the equivalent is Sri Lanka could be Pan-Sinhalism, a ‘let the Tamils go to India’ kind of view articulated recently by someone who aspires to be the all powerful executive president) and virulent anti-Semitism.

The key to Hitler’s hold on political power was the Enabling Act of March 1933.  This came after the Great Depression saw the economic and political collapse of the Weimar Republic.  A fire in the Reichstag (which the Nazis blamed on the Communists) on February 27, 1933 resulted in the Government issuing a decree suspending constitutional civil rights.  Hitler convinced President Paul von Hindenburgh to take strong action against the ‘Communist threat’.  Elections and behind-the-scenes maneuvering saw Hitler being appointed as Chancellor.

The Enabling Act gave dictatorial authority to Hitler’s cabinet for four years.  Article 1 stated that the Laws of the Reich can be promulgated by the Reich government apart from the method prescribed by the Constitution, and Article 2 stated that laws decided upon by the government of the Reich can depart from the Constitution of the Reich, in so far as they do not touch the existence as such, of such institutions as the Reichstag and the Reichsrat, which of course were rendered irrelevant by the Enabling Act. 

In April 1933, the government abolished self-government in the German states by appointing governors responsible to the central government in Berlin. The states lost even more power in January 1934 when the Reichsrat, the upper house of the parliament and which had represented the states, was abolished.

In May 1933, the Nazis ordered the abolition of the independent labor unions. Both strikes and lockouts were prohibited, and a system of compulsory arbitration of labor-management disputes was established. All workers were compelled to join the German Labor Front, an agency of the Nazi Party, which was designed primarily to promote labor discipline rather than the interests of the workers. During the spring of 1933, the Nazis moved to eliminate opposition political parties. In July, the Nazi Party became the only legal party.

Following the death of President Hindenburg on August 2, 1934, Hitler abolished the office of president and assumed the president's powers. The members of the armed forces were now required to take an oath of allegiance to Hitler. This oath represented an important step in the establishment of Hitler's control over Germany's armed forces.

This is the nutshell-version of the rise of the Third Reich and Adolf Hitler.  What has this got to do with Sri Lanka in the year 2009?  Simple: talk about constitutional reform.

Everyone knows that the 1978 constitution is utterly flawed.  Everyone knows, also, that it is next to impossible to amend it.  This is why I find it amusing when some people talk about abolishing the executive presidency as though it can be done by presidential directive.  Knowing very well that the two-thirds parliamentary majority that is prerequisite for initiating constitutional amendment cannot be obtained, some of these abolitionists are proposing alternatives.  Some say that the manifesto will include a commitment to abolishing the executive presidency by turning Parliament into a Constituent Assembly.  The ‘mandate’ given by the people would make it ‘legal’ they argue.  Not true.

Manifestos are not one-item affairs.  They are made of multiple promises and there’s no earthly way of determining which element(s) were in mind when someone voted for this or that party.  As for turning Parliament into a Constituent Assembly and using the device called ‘simple majority’ to amend the constitution, that is a clear undermining of constitutional integrity.  It means that any and all uncomfortable constitutional articles can be dealt with by this ‘Constituent Assembly Mechanism’.  That’s a recipe for anarchy. 

Frustration is a powerful generator of aggression.  Constitutional blocks are frustrating. They make people look for extraordinary means of circumvention.  Like Hitler.  I am not saying that Parliament will be burnt and some party blamed and forced to keep away so that Parliamentary arithmetic could be cooked in favour of the pyromaniac and dictator-in-the-making.   Stranger things have happened, though, when it is sought to change constitution through means not enshrined therein.

Take a hypothetical case: imagine a man who becomes President but does not have a political party and therefore finds himself at the mercy of every single Member of Parliament when it comes to passing the budget.  Such a man will have to find a way to trip the constitution and has to do it in an extra-constitutional manner, i.e. by violating the constitution or tweaking it in a way that trips the democratic spirit.  That would be going against campaign rhetoric of course but then who said that manifestos and mandated mean anything! 

There is something we should not forget. Power is not something that is yielded by constitution alone.  There are other sources of power than can be mined to make constitutional provisions or lack thereof irrelevant.  A President, as Commander-in-Chief of the Armed Forces could, for example, in the name of restoring democracy no less, engage in such ‘irrelevancing’.  Hitler wanted 4 years.  That much time is not needed.  One could ask for 4 month or 4 weeks or even 4 days.   What is required is actually 4 seconds!  Once you got it, you’ve got everything and those who did the ‘giving’ get nothing, have nothing and cannot have anything either. 

Did I hear someone say ‘No, he is not like that!’?  Well, men are made of circumstances and sometimes that alter circumstances and that’s how history is made.  Certain circumstances limit options and both change and method of change are shaped by these realities.  It is useful to read the signs.  We know that the 1978 Constitution is extremely resistant to alteration. We know that there’s a candidate who vowed that he leaves pistol, epaulets, medals and what-not at home and don civilian garb.  We see, in poster, tone, content and everything associated with candidacy a marked fascination with a military past/present. 

Should we be worried? Well, the positive thing is that it is unlikely that he will win.  What’s the ‘negative thing’ then?  Hmm…the fact that this society by and large prefer slogan to substance, rhetoric to reality and can therefore easily find itself in a situation where there will be only one option: subjecting itself to tyranny.  It is quite possible to give ‘Enabling Power’ in a moment of giddy euphoria.  We know what the Third Reich did.  The universe of the ‘possible’ is therefore blood-laced.  It is certainly something we need to think about these rhetorical days of constitutional reform, for there is a name for the underside of ‘enabling’: dismemberment. 

malindasenevigmail.com.

Read more