Archive for March 1st, 2008
by Rohan Edrisinha
(Expert in Constitutional Law and Colombo University Law Lecturer Rohan Edrisinha takes on the excuses trotted out on behalf of the government by SCOPP (Secretariat for Coordinating the Peace Process) and others over the President’s failure to appoint the Constitutional Council despite the fact that the minority parties have agreed on their nominee - former auditor General SC Mayadunne.)
It is pertinent at this moment to examine why even now the 17th Amendment to the Constitution is not implemented.
The media has reported that President Mahinda Rajapaksa told Opposition Leader Ranil Wickremesinghe during their meeting this week that he cannot move forward in this regard because a parliamentary select committee is looking into deficiencies in the 17th Amendment. This is not a valid excuse because the 17th Amendment is part of our Constitution. It is already law. It is fine if a select committee wants to improve on the 17th Amendment but you must apply and implement the law as it is, and then, if necessary, improve it later. Everyone agrees that there are weaknesses in our Presidential system. Does that mean that until these weaknesses are overcome you don’t have Presidential elections or that nobody will hold the office of President? This excuse for further delay is utterly unacceptable.
Furthermore, the parliamentary Select Committee, as far as I know, has completed its work and has submitted its report which is quite good. I have seen a copy of it. Minister of Constitutional Affairs D E W Gunasekara, who chaired the group, has said the committee has finished its work. It is very strange for the claim now to be made that the select committee has still not finalised its report.
Non-implementation
In the meantime, much to my surprise, the Secretariat for Coordinating the Peace Process (SCOPP) has issued several statements in the past few months seeking to justify the non implementation of the 17th Amendment. One of the arguments put forward in a statement of 8 January 2008 is that, “it is the Speaker who selects members of the Council”. This is not correct. According to Article 41A of the Constitution all that is provided for is that the Speaker CHAIRS the Council. The selection of members is NOT made by him. Some members of the Council hold office ex officio. Separately, the Prime Minister and Leader of the Opposition have to identify and then nominate five persons. The President, too, has to nominate one person and the smaller parties in Parliament (parties other than the parties of the Prime Minister and the Leader of the Opposition) have to nominate one person. The Speaker has NO role in selecting any of the members. So, to say that the fault lies with the Speaker and not with the President is an incorrect reading of the 17th Amendment.
Appointments
The SCOPP statement of 8 January 2008 also makes the misleading claim that the President had no alternative but to appoint the Human Rights Commission because of the stalemate with regard to the appointment of the Constitutional Council and that the President made the appointments “in the way in which such appointments had been made by previous Presidents on their own before the 17th Amendment was passed.”
Before the 17th Amendment was passed, appointments to the Human Rights Commission were made according to the provisions of the Human Rights Commission of Sri Lanka Act No 21 of 1996. Section 3 of the Act anticipated the creation of a Constitutional Council but provided that, until a Constitutional Council is established, the President shall appoint members on the recommendation of the Prime Minister in consultation with the Speaker and the Leader of the Opposition. This was not done. Therefore the appointment of the present members of the Human Rights Commission was done a) in violation of the 17th Amendment; and b) in violation of the Human Rights Commission Act 1996; and c) therefore, not as previous Presidents had appointed members to the HRC.
SCOPP in a statement dated 20 December 2007 also makes another false claim. It states that:
“Unfortunately perhaps, according to a Supreme Court ruling… in Sri Lanka an official body which has no designated quorum cannot function unless all its members are in place. Given this finding, the Constitutional Council cannot exist unless and until the Speaker nominates its final member.”
There are two problems with this claim by SCOPP. First, why has SCOPP not specified the name and reference of the case as is usually done when one is basing an argument on a decision of a court? Secondly, this point is irrelevant as the Constitutional Council does have a designated quorum. The legal advisor to SCOPP has obviously not read Article 41 E (3) of the Constitution which declares that the quorum of the Council is six members.
Endorsement
Another erroneous claim was made by Human Rights Minister Mahinda Samarasinghe in a statement issued on Human Rights Day, 10 December 2007, and carried on the website of Sri Lanka’s Embassy in Geneva. It states that: “His Excellency the President took steps to appoint the Commissioners of the Human Rights Commission; this action has been endorsed by the Court of Appeal as being within his constitutional authority.”
Again, there is no reference for the Court of Appeal decision so that one can verify this claim. However, as far as I know, a petition filed in the Court of Appeal challenging the President’s appointment of members to the Human Rights Commission in violation of the 17th Amendment was dismissed in limine or at the threshold due to a procedural objection raised by the Attorney General based on the much maligned Article 35 of the Constitution.
This Article prevents legal action against a President. The court, therefore, never brought its mind to bear on the merits of the case as the preliminary objection was upheld. To state that the court endorsed the President’s action is false and misleading.
For two years, the whole country was told that the problem was with the smaller parties in parliament failing to identify their nominee. Now it seems that the delay is because the President has not identified his nominee to the Constitutional Council. This, basically, supports the argument that I have made since 2006 that there is simply no political will on the part of the President and government to activate the 17th Amendment. They are now continuing to delay the process because, the longer the 17th Amendment remains unimplemented, the more opportunities exist for the President to continue to make unilateral, politically partisan appointments.
Speculation
The situation is serious because several appointments that should be made in a non-partisan manner under the 17th Amendment are due in the next few months. The position of the Secretary General of parliament is to become vacant soon. There are going to be vacancies on the Supreme Court and the Court of Appeal. There is speculation about appointments to the office of the attorney general and the inspector general of police. Therefore, this matter must be resolved as a matter of urgency. The Government should explain what the real reasons for the delay are given the fact that the old reason for the delay no longer exists.
This issue could easily have been resolved in early 2006 if the questions of constitutional interpretation had been referred to the Supreme Court for an opinion. This is another reason why the governments’ credibility on this matter is extremely low.
The lesson from the 17th Amendment fiasco and the unwillingness of the President to activate it suggests to me a dangerous populist attitude towards politics which believes that a person who is elected by a majority of the people has democratic legitimacy which entitles him to virtually do anything. This kind of populism is very dangerous for constitutionalism and the rule of law because the raison detre of a constitution is the protection of certain fundamental principles and institutions from crude majoritarian democracy. [Courtesy: LakbimaNews]
March 1st, 2008
Senior Presidential Advisor Basil Rajapaksa in an interview with LAKBIMAnEWS staffer Namini Wijedasa says, “India did not force his brother’s government to agree to a full implementation of the 13th Amendment.” Excerpts:
Ln: Is the government going ahead with the 13th Amendment?
BR: That’s what the APRC proposed and the government has accepted it. The UNP has also accepted it. It is part of constitution. Everybody has to implement the constitution as much as possible.
Ln: Did the government agree to this due to heavy pressure from India?
BR: Not to my knowledge. This is definitely not a matter of India pressurising. Everybody knows the 13th Amendment was part and parcel of the Indo-Lanka Accord. India was very much involved in the process. It is not the case now. Today, we want to get the liberated people of the East to participate in democracy after many years of LTTE terrorism. We want to give them the democracy that citizens are enjoying in every part of the country except Mullaitivu and Kilinochchi.
Ln: Does the international community support the government on the 13th Amendment?
BR: This government doesn’t believe it can live without the international community but I think the President doesn’t do anything specifically to please the international community. He does it for the country. I believe the international community must be pleased because most of them are friends of the government and want democracy established in all parts of Sri Lanka.
Ln:The JVP opposes the 13th Amendment…
BR: Immediately after liberation (of the East), the JVP’s main request was that we hold elections and establish democracy. I don’t think the JVP will be against what we are doing. The JVP has representation in other provincial councils. I think they will contest the provincial council in the east if we have an election. They are opposing the 13th Amendment as a policy. They have a right to that view. At one stage, the SLFP was also against it.
Unfortunately, the provincial council system has not functioned in the north and east for more than two decades. The people of the other seven provinces didn’t ask for it but are enjoying it. The people who asked for it don’t have it. That is why the APRC proposed that we have elections immediately and that we implement the system in the north and east. There is no excuse not to have election in the east. This is democratisation.
Ln: The provincial council system is inefficient elsewhere so why do you want to introduce it to the north and east?
BR: If you ask some people, they will say the parliamentary system is not working. Some people think the presidential system is not working. Some say proportional representation is not a good system while others say the judiciary is not working well. There are a lot of views. So you can’t say one system is working and other system is not working. You must take it as a whole.
Ln: When will you hold Provincial Council elections in the north and east?
BR: The APRC proposal is to hold them immediately… soon after this election.
Ln: When?
BR: No date. It depends on the elections commissioner.
Ln: Is it important for the government, for the JVP to support them?
BR: Yes.
Ln: What are you doing at this time to encourage the JVP to support the Government?
BR: We are sticking to the Mahinda Chinthanaya.
Ln:The JVP says the Mahinda Chithanaya does not authorise the President to devolve power through the 13th Amendment or otherwise.
BRThat is their interpretation but that’s not our interpretation.
Ln: Will there be a prorogation of Parliament?
BR: Yes.
Ln: Why?
BR: It’s up to the President to do it but it’s very necessary to prorogue parliament. Normally it happens every year. I don’t know why it didn’t happen for the last few years.
Ln: It is alleged that the President is proroguing parliament merely to have the COPE and PAC reconstituted. Is this true?
BR: It’s not an allegation. It is a fact. They have to be reconstituted.
Ln: Is the President trying to get rid of Wijeyadasa Rajapakshe and Rauff Hakeem who head these committees and who produced hard-hitting reports?
BR: They didn’t produce the reports. They were produced by the committees. And don’t forget that the government now has a majority in these committees because most of the members nominated by the UNP have crossed over to us. When you reconstitute the committees, our majority goes down. So, it’s actually a disadvantage to us.
Ln: Are five more members of the UNP readying to join the government?
BR: I think more than that is ready to join the government. I hear that even the whole UNP wants as a party to get together.
Ln: Are you negotiating with anybody in the UNP at present?
BR: No, I’m not personally negotiating with anybody.
Ln: But you have in the past?
BR: Normally, I negotiate on authority of the party and on request from the President.
Ln: The international media is critical of the fact that the Rajapaksa family is controlling all powerful positions and finances of the government. As you know, that is nepotism. It is corruption to hand out all the best posts to members of your own family. What do you say?
BR: In any executive presidency system, you have to have your own people… the President’s people. It happens in the US… with the Kennedys and all the others. It happens even in communist countries like Cuba or North Korea. It happens in Poland. We can show examples even in Western countries. I think the President has selected the best people who are loyal, capable, trustworthy and honest. For example, he chose Dr P B Jayasundera as finance secretary from Chandrika Kumaratunga. Lalith Weeratunga, his secretary, was with him when he was Prime Minister. He also brought in outsiders like Central Bank Governor Ajith Nivard Cabral who was earlier with the UNP. He has selected the best (military) commanders. To my knowledge, only the defence secretary holds a post other than myself… and I’m only an MP. In fact, the only two MPs in the government who are not ministers are Nirupama Rajpaksa and me.
Ln: Why hasn’t the President appointed the Constitutional Council?
BR: I don’t know but I’m not personally for the whole concept of the Constitutional Council. It doesn’t represent the will of the people. For example, a person who secures 51 per cent of the vote is entitled to select one person while a party with just three per cent of the vote also gets one member. And they are all political party appointees so how can you call them independent? Another issue is that the CC is not accountable to anybody. In democracy, there’s interconnectivity, independence and control. Politicians are accountable to the people. The executive is accountable to the judiciary, the judiciary is controlled by legislation and so on. Where the CC is concerned, there is no control at all.
Originally, the commissions were meant to be oversight committees. Now they have become administrative institutions. There is a lot I personally don’t agree with. Still, this is part of the constitution and we have to obey the constitution.
But Ranil Wickremesinghe took one year to nominate his member; the small parties got more than two years; and now they want the President to do it within weeks or days. Why is that? He also must take time. You must give him own time to decide. It’s a risky appointment. Anyway, there is no timeframe for him to appoint.
Ln: But it’s based mostly on goodwill, isn’t it? The President needn’t be as bad as Ranil Wickremesinghe or the small parties…
BR: Yes, that is right. So he must take more time and do the right thing. I think he needs four or five years to do this! (Laughing)
Ln: Do you think the east, from where you just returned, is ready for elections?
BR: The situation has improved since the east was liberated. In the past, people did not talk; they just stood around and watched. Now, they come forward and voice their grievances. They interact. This means that democracy is working. I think this election will be more successful than all others held in Sri Lankan after 1977. A larger number of candidates are participating than we have seen in any recent Pradeshiya Sabha election. There are five registered political parties, six independent groups and 800 candidates. How many electoral candidates have been killed during election campaigns? How much violence have we seen during parliamentary, presidential or local government elections? In the East today, there is hardly any violence. We have only received a small number of minor complaints. Everybody is campaigning freely.
Ln: If the situation is so harmonious, why have civil society groups urged the government to call off the election?
BR: I don’t know. I saw a list of civil organisations, I didn’t see any names. Some civil society organisations have only a website and one person. They are mostly private companies, not organisations. They are creating issues. That’s how they earn money. Only then can they put up project proposals to their financiers who sponsor them.
This is their livelihood. Of course, there are good organisations like PAFFREL (People’s Action for Free and Fair Elections) and a few others. Everyone can go and see the situation in the East. We want a fair election.
Ln: What do you think voter turnout would be?
BR: Definitely more than 60 per cent. The number of postal votes is already very high.
Ln: What is your relationship with the Tamil Makkal Viduthalai Pulikal (TMVP)?
BR: I have a very close relationship with the TMVP. It’s a registered political party. [Courtesy: LakbimaNews]
March 1st, 2008
by Dr. Nihal Jayawickrama
I am deeply honoured to have been invited to participate in this workshop which is part of the programme organized by the Ministry of Constitutional Affairs to celebrate the centenary of the birth of Dr Colvin R de Silva, and to pay tribute to a generous and warm-hearted human being; a unique and dominant personality of our time.
I was a young schoolboy, living and growing-up in the home of his close friend and colleague and my uncle, Mr. T. S. Fernando QC, when I first came to know him and first heard that unmistakable stentorian voice. I worked as a junior in his chambers after I joined the legal profession, and later shared the services of his illustrious clerk, Mr. Perera.
I recall the first occasion I accompanied him to the Supreme Court when, after the judge had allowed the appeal, he stood up to say that his entire argument had been based on the work done by his learned junior. He was not merely the greatest criminal lawyer of his time; I was his junior when he appeared before a bench of five judges and successfully argued a partition appeal against an array of the best civil lawyers in the country without once referring to the conflicting judgments that had led to the reference to a full court, or to any judgments at all, but solely on the basis of first principles. He was my referee when I made the usual application to join the Attorney-General’s Department, and he proposed the toast when my wife and I were married.
Of greater relevance to the subject of today’s discussion, I was proud to have been a part of his team that was able to steer successfully through a minefield of legal and constitutional obstacles and nightmares to enable this country to make that unique unilateral declaration of independence. The problem was neither the Queen nor the British Government who were only too happy to facilitate the proposed legal revolution. The great legal debates of the 1960s between Professor C.F. Amerasinghe and Mr. H.L. de Silva on whether or not the Parliament of Ceylon could repeal the 1946 Constitution had lost their relevance. The Privy Council had been replaced by our own Court of Final Appeal, and Parliament had already abolished one of its constituent units, the Senate. The real problem was our own judiciary, Mr. C. Suntheralingam, and the impending trial of the JVP leadership on the charge of having waged war against the Queen.
Dr. Colvin R de Silva would not consider the perfectly practical option of terminating Ceylon’s link with the British Crown through the exercise of the open-ended legislative power conferred on Parliament by an Order-in-Council issued from Buckingham Palace, and was about to commence waging war against the Queen himself. It was a time when the executive did not communicate with the judiciary on such matters, and therefore we had no way of knowing how the latter would respond.
It is to him, and to him alone, that the credit for that bold, idealistic, even romantic and eventually successful exercise in autochthony must go. It must surely have been the vindication of that consistently principled stand that he and all his colleagues in the Marxist movement have always taken in the political life of this country. Dr Colvin R de Silva was a politician who looked beyond the art of the possible and dreamed of the impossible, and in achieving that dream transformed himself into a statesman.
I have been out of Sri Lanka, intermittently, since Parliament, on the report of the infamous Special Presidential Commission of Inquiry, imposed civic disabilities on me and stripped me of my civic rights some 27 or 28 years ago. While some may regard that as a disqualification to comment on events in Sri Lanka, I believe that the perspective of one who has lived and worked in countries both in this region and outside it and observed how rapidly and steadily much of the world outside has developed and advanced while his own country either remained stagnant or perceptibly deteriorated, would probably be useful.
Whether a country can develop or not is influenced, if not determined, by the prevailing system of governance in that country. For example, despite its horrendous heritage of apartheid, South Africa has emerged as the foremost state of that continent due to the enlightened framework of governance that Nelson Mandela established for that country. The economic strength and the spirit of tolerance and respect for human rights that marked the early years of the new republic of Zimbabwe are non-existent today following the structural changes that President Mugabe has foisted on that unfortunate country in the twilight years of his political career.
The resilience of British institutions, despite the absence of a written constitution, has ensured a political culture in that country that is able to respond positively to contemporary phenomena such as multi-ethnicity. On the Indian sub-continent, we have been witnessing year after year what irreparable damage military intervention has done to the governance of two countries, while the third which preserved intact its democratic institutions and its respect for the rule of law has achieved near super-power status. In that traditionally apolitical colonial territory of Hong Kong, I was able to observe, and sometimes even contribute towards, the development of laws and institutions that have helped to preserve its unique economic, political and legal status despite being integrated into an enormous state with diametrically opposing values and beliefs.
To understand why the first republican constitution survived for only six years, and why the second has proved to be an intolerable burden which the people of this country have had to bear for nearly thirty years, I think one must begin by sparing a moment to reflect on that which preceded them – the 1946 Constitution of Ceylon. Incidentally, it is interesting to recall that the draftsmen of our three constitutions were born within the space of one year between 1906 and 1907; were contemporaries in the same school, Royal College; and were members of the same profession – two having been called to the English Bar at the same time and the third having qualified through the Ceylon Law College. I refer not to Sir Ivor Jennings but to Mr. Bernard Percival Peiris who, contrary to popular belief and despite what we were all taught in school and university, was the actual draftsman of the Independence Constitution; and to Dr Colvin R De Silva and Mr. J R Jayewardene who oversaw the drafting of the 1972 and 1978 Republican Constitutions and ensured that these reflected accurately and precisely their respective ideologies, philosophies and imperatives.
The 1946 Constitution had no ideological basis. It professed no economic or social objectives. It was only concerned with establishing the essential framework for democratic governance by creating the principal institutions and defining their powers. That was traditional constitution-making. Under that Constitution, it was possible for both right-wing and left-of-centre political parties to be elected to office, and for them to implement their respective programmes unhindered. It was possible for both free market and regulated economies to be practised. The parliamentary executive system of government it provided was flexible enough to withstand the tremors caused by the attempted military coup d’etat in 1962, and strong enough to survive the whiplash of the 1971 insurgency.
In seven successive general elections held under that Constitution, the electorate demonstrated a growing political maturity when it voted in increasing numbers to change governments on five occasions, and the politicians demonstrated their ability to accept the popular will when they effected peaceful transfers of power on each of those occasions. The provisions of that Constitution were successfully invoked to challenge the language legislation of the 1950s, as well as the attempts made in the next decade by parliament, perhaps unwittingly, to encroach on the powers vested by the Constitution in the judiciary.
The Liyanage Case, the Ranasinghe Case, the Kodeeswaran Case and the Aseerwatham Case raised the stature of the judiciary to its high-water mark. The parliament was the acknowledged forum for great debates on policy. The civil service possessed both the integrity and the capacity to help formulate, and then to implement, policy, whatever the complexion of the government in office. Despite the tradition of street agitation introduced by the Marxist parties, and the belief insidiously inculcated among several thousand young idealistic men and women by the JVP that political power could be wrested from the establishment by the simple technique of attacking all the police stations in the country on a single night, the dominant political culture of the times was based on a widespread acceptance of the rule of law.
Of course, the 1946 Constitution had its shortcomings, and one that was identified very early was the lack of an enforceable Bill of Rights. Prime Minister S.W.R.D Bandaranaike attempted to remedy that omission through a select committee which was representative of every major ethnic, caste, and religious group, and in which his ruling party was in a minority. But the public consultative process he set in motion was aborted when his party began to fragment and he was laid low by an assassin’s bullet. If some of the institutional safeguards for minorities proved ineffective, it was because successive governments willed it to be so. The Senate, for example, was transformed into a haven for unsuccessful politicians, and the higher judiciary glossed over sensitive issues such as citizenship and language.
I would submit that the 1946 Constitution reflected the popular will to a far greater extent than either of the other two that followed. B.P. Peiris states in his recently published memoirs that his instructions came in the form of three documents: (1) The Ministers’ Draft which contained a constitutional scheme that had been approved in the State Council by an affirmative vote of 51 to 3, with both Tamil and Muslim members voting in favour; (2) The Soulbury Commission report formulated after extensive consultations over a period of three and a half months at sittings held throughout the country, during which evidence was recorded at public sessions and information gathered in private discussions; and (3) The British Government’s Declaration on Constitutional Reform.
In contrast, the elected representatives of the Tamil community neither participated in the preparation, nor voted for the adoption, of the two republican constitutions. Having been associated in the processes that led to the preparation and the adoption of those two constitutions, I can state quite unequivocally that despite the sometimes highly publicised public consultation exercise that preceded both, the actual public contribution towards their content or substance was minimal, if anything at all. It could not have been otherwise because, as the Minister of Constitutional Affairs himself asserted, the Basic Resolutions upon which the 1972 Constitution was drafted were “completely in accord with the United Front and Government policy”, and the party whip was applied to secure the passage of government business in the constituent assembly. In 1978, notwithstanding extensive proceedings in the parliamentary select committee on the revision of the constitution, at which I too participated on behalf of the Sri Lanka Freedom Party, the report of that committee had attached to it a draft constitution which was said to be in accord with “the Basic Principles accepted by the 1975 Party Sessions” of the United National Party.
If one compares the 1972 Constitution with that of 1946, what one finds is that the basic structure of government remained intact. In fact, I recall that the early work of the drafting committee (in which I participated for some time) concerned the conversion into written law of the applicable and relevant British constitutional conventions. If one leaves aside the emotive words, terms and phrases such as sovereignty, unitary, and principles of state policy, and the references to Buddhism and the Sinhala language, all of which had little or no meaning, but were capable of raising aspirations and arousing primeval prejudices, and some of which, as I now recall, did not appear to interest Dr Colvin R de Silva very much, the significant changes made in 1972 were the following:
1. The second chamber, which was intended to serve the minorities as an instrument for impeding precipitate legislation, as well as a forum for handling inflammatory issues in a cooler atmosphere, was omitted;
2. The independent Public Service Commission, which was intended to guarantee strict impartiality in all matters affecting public service appointments, was omitted;
3. The Judicial Service Commission, which was intended to guarantee the independence and integrity of the judiciary, was omitted;
4. Nominated members in the legislature, who were intended to represent unrepresented interests, were omitted;
5. The judicial review of legislation was expressly prohibited; and
6. The prohibition on discriminatory legislation, contained in section 29, which the Privy Council had described as representing “the solemn balance of rights between the citizens of Ceylon: the fundamental conditions on which inter se they accepted the Constitution, and are therefore unalterable under the Constitution” was omitted.
The 1972 Constitution introduced five significant innovations:
1. The unicameral legislature – now called the National State Assembly – was described as the “supreme instrument of state power”. This was a phrase then commonly used (but not any longer) in the constitutions of the communist states of Eastern Europe.
2. Public servants and judges – now called “state officers” – were brought under the control of the Cabinet of Ministers in respect of their appointment, transfer, disciplinary control and dismissal, and no court could call in question any decision of the Cabinet in that regard.
3. The Permanent Secretaries to the Ministries – now called “Secretaries” – were made subject to the “direction and control” of their respective ministers in the performance of their constitutional duties, whereas previously they had been subject only to the “general direction and control” of the relevant minister, meaning thereby general policy directions.
4. The constitutional Head of State – now called “President” – would no longer assent to or decline to assent to Bills passed by the legislature. That function would be performed by the Speaker.
5. Specific reference was made to the situations and circumstances in which the Prime Minister shall be deemed to have resigned her office.
In effect, therefore, what the 1972 Constitution did was to strengthen the legislature by removing any judicial review of its acts; invest the Cabinet with additional power while reducing the discretionary powers of the Prime Minister; increase the powers of the Ministers with respect to administrative matters, and especially over the permanent secretaries who were appointed by the President on the recommendation of the Prime Minister, sometimes with no prior consultation with the minister concerned, and who were being increasingly perceived by some ministers as being the channel through which the Prime Minister exercised influence, if not control, over some of the ministries. But the most far reaching of the consequences was that all the safeguards for the minorities incorporated in the constitutional settlement of 1946, on the basis of which the Tamil and other minorities had agreed to subject themselves to majority rule in independent Ceylon, were removed.
The 1978 Constitution, in effect, re-enacted the 1972 Constitution with a few more emotive words, such as that Sri Lanka is not only “free, sovereign and independent”, but also “democratic and socialist”. To the non-enforceable “Principles of State Policy”was added a new, also non-enforceable, statement of “Fundamental\ Duties” of the citizen. With uncanny foresight, the 1978 Constitution chose to omit in its expanded statement of fundamental rights the right to life of a citizen of this country. The two significant changes which were made in 1978 were:
1. Proportional representation became the basis of election to the unicameral legislature – now called the Parliament - and the composition of Parliament was frozen as on the date of election by the device of expelling a member who was no longer a member of the party through which he or she was elected, and by replacing that member with another belonging to the same party.
2. The offices of Head of State and Head of Government were combined in one individual who would be elected by the people to hold office for six years. Because of the scissors and paste nature of the exercise in respect of many of the provisions of that Constitution, the President continued to be “responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions under the Constitution and any written law”. It is inexplicable why this overriding power of Parliament was not invoked in the single instance extending over two years when the President had lost political control over Parliament.
Both these changes were designed to achieve the opposite effect from that of 1972, namely to strengthen the executive to the detriment of the legislature and the judiciary. The true extent of the strength of the executive presidency was demonstrated during the Jayewardene administration when it was possible to extend the life of the frozen majority from six to twelve years without recourse to a general election.
It was the Buddha who articulated the essential impermanence of things animate and inanimate. The same person cannot step into the same river twice, he said. Everything is in a constant state of flux. And so it is with the constitution of the country, even though it is the supreme and fundamental law of the state. Despite his Marxist background, Dr Colvin R de Silva recognized this fundamental truth. Addressing a seminar on the International Covenant on Civil and Political Rights that I had the privilege of organizing under the auspices of the United Nations Association of Ceylon in 1968, this is what he said:
Constitutions are made in terms of the stage of development at which any given society or country has arrived. In terms of that stage of development it looks upon things, and for any generation of people to imagine that it can so completely project itself into the infinity of the future so as to be able to decide in its own generation that it will constrain a future generation or generations for ever within the confines of its own postulates is to make the mistake of thinking that any human collectivity is the equivalent of the divinity. It is not.
In his wisdom, he provided quite explicitly that the constitution over the creation of which he presided would remain in force only for as long as the elected representatives of the people so desired. It could be amended or replaced in the traditional manner, i.e. by the affirmative votes of two-thirds of the members of the National State Assembly. He could have, if he considered the constituent assembly to be the equivalent of the divinity, have insisted that its provisions may be amended only by another constituent assembly. But he did not.
Mr. J. R. Jayewardene, however, thought otherwise. In the Constitution enacted by two-thirds of the members of the National State Assembly in 1978, it was provided that some of its provisions, such as the musical notes to be played when the national anthem is being sung; the shades of colours of the national flag; the designated national day (being not the date on which Sri Lanka asserted its independence of the British Crown, but the day on which the so-called gift of dominion status was accepted from the Duke of Gloucester); the democratic-socialist description of the country; the references to unitary state and to Buddhism, and the highly debatable definition of sovereignty, may be amended only by a two-thirds majority in Parliament followed by approval by the people at a referendum. In other words, these provisions could not be amended by Parliament alone.
This purported limitation on the powers of Parliament has been tamely accepted by successive governments, sometimes, I suspect, because it has been convenient or politically expedient to do so. But I would like to pose this question: How could the legislature have invested a law it made with a two-thirds majority with such superior status that it could not be changed by the legislature with a similar majority but would require in addition a majority obtained at a referendum? How could the National State Assembly have granted a law it made a greater authority that what it itself possessed? If it could have done so, then why is it not possible today for Parliament to make a law with a simple majority of one, and state that that law may only be amended or repealed with a two-thirds majority? Is that even conceivable? No trained legal draftsman would ever prepare a Bill on those lines. I would submit therefore that the requirement of approval at a referendum for certain constitutional amendments is nothing more than a mere embellishment, devoid of any legal status.
If I may sum up, I do not think there was any philosophy underlying either of the republican constitutions. They merely reflected the policies of the political parties under whose auspices they were drafted; or perhaps more accurately, the imperatives of the two leaders whose personalities dominated the drafting processes. Dr Colvin R de Silva and the Lanka Sama Samaj Party probably saw in the overwhelming majority which the United Front received in the 1970 general election the opportunity to introduce and implement his and its long held political beliefs, and wished to do so without obstruction from any quarter, whether it be the public service, the judiciary, or the more moderate-minded prime minister. The tragedy was that in doing so, the constituent assembly failed to hear or recognize the voice of the North, expressed so clearly at the same general election.
The Vadukkodai Resolution was the inevitable consequence of 1972. Mr. J. R. Jayewardene had for long held the view that a strong secure executive was essential for the economic development of the country. But the manner in which that objective was achieved in 1978, and the bizarre priorities he set for himself in the wake of his extraordinary victory in the general election of the previous year, created an almost unbridgeable gap not only between political parties but also between ethnic groups, and the country was torn asunder, and the people brutalized. Both constitutions have brought authoritarianism, inefficiency, corruption and divisiveness into the governance of this country. That surely is not what the people of this country, in whose name they were proclaimed, desired for themselves or for their children.
In conclusion, I would like to repeat what I said over ten years ago when I delivered the Felix R Dias Bandaranaike Memorial Lecture:
Constitution making becomes a meaningless exercise if it does not respond to the evolving aspirations of the people of this country. The voice of the minority communities in the north and east has been loud and clear in its support for genuine autonomy. They ask for space; space which they are entitled to as of right in this multicultural state of which they are an integral part; space in which to preserve their unique identities because identity is the central issue of being; space in which to keep alive their languages and their history, their legends and their stories. The identity of a community is inviolable. It is not enough to be who we are; we must also be seen and heard and respected for who we are. When that basic right is denied, by force or otherwise, peoples will struggle and fight to regain it. The space that a minority community seeks is not negotiable, and therefore ought not to be conditional upon, or indeed to await, a referendum or national consensus or even a cease-fire. The initiative rests with the government, and no all-party conferences or peace talks are required to do that which international law and commonsense demand.
March 1st, 2008
by Rajan Philips
Kosovo’s declaration of independence on 17 February provoked a range of worldwide reactions, some recognizing Kosovo, others rebuking it, and a few remaining silent. Although the opposing responses were seen as illustrating the clash of the principles of sovereignty and self-determination, they were not based on any principle but mainly on expediency and/or self-interest. The declaration of independence also brought into question the role of the international community in situations such as Kosovo, and now controversially formulated as the R2P (Responsibility to Protect) approach. In my view, the Kosovo crisis brought into relief two issues. The first relates to the internal failure, namely, the failure of the Serbian State to integrate the Kosovo Muslims as equal partners in the State, and the lessons of this failure for countries like Sri Lanka with similar internal problems. The second matter is the implication of external intervention that in Kosovo began with the military action in 1999 by NATO countries against Serbia and is now formally ending with the declaration of independence by Kosovo under the auspices of the same NATO countries.
[Protesters march on the US Consulate in Toronto on Saturday Feb. 23, 2008: pic courtesy AP/CP Jim Ross-via Yahoo! News]
Lost in all of this is the disintegration of Yugoslavia that for fifty years after the Second World War stood as a beacon of socialism, multi-ethnic federalism and nonalignment to newly independent countries throughout the world. The nation of six republics and an autonomous Province, founded by Marshall Josip Broz Tito, was a source of inspiration to third world political leaders, activists and intellectuals. I recall the beginning of my own fascination with Yugoslavia after reading in my school days a long essay on the fledgling socialist federation by K.P.S. Menon, the erudite Indian diplomat and one of India’s early ambassadors in Belgrade. Quite a few Sri Lankans of my generation went to Belgrade and Zagreb in Yugoslavia for their higher studies. As a young engineer, I worked with many ‘Yugoslavians’ in the first phase of the Mahaweli project comprising the Polgolla dam, the Ukuwella power house and the five mile long tunnel in between. The main contractor on that project was Ingra-Zagreb, a conglomerate of companies from the six Yugoslavian republics operating out of the Croatian capital (Zagreb) on international engineering contracts. There were Serbs, Croatians, Slovenians and Albanians, working on the Mahaweli project and the names and faces of those with whom I worked are still etched in memory.
[A Powerhouse along Mahaweli pic:leelwicks]
Years later, living overseas, I have come across people of ‘Yugoslavian’ origin, in social circumstances, as professional colleagues and as friendly neighbours. Politically, many of them embody old reactionary and ethnic enmities that first generation immigrants usually cling to as the last link to their old societies. Tito is now hated by both Serbians-for allegedly helping the Croatians; and by Croatians-for suppressing his own people. Tito was a Croatian by birth but a Yugoslav by conviction, and he famously told Croatian nationalists that ‘the river (Danube) would flow backwards before Croatia could secede from Yugoslavia.’ Tito also presided over a more open alternative to Stalin’s straitjacket socialism and national integration in the Soviet Union.
Along with other Sri Lankans, whom I know have followed the post-Tito dismemberment of Yugoslavia with nostalgia and sadness, I lament the collapse of the grand Yugoslavian project rather than the final break up of the Serbian ethnic state. The old slogans of socialist internationalism and national self-determination seem so distant and surreal. It is an indication of the extent of this failure that Russia is now supporting Serbia for reasons of Slavic solidarity, the union of Eastern Orthodox Christianity, and the new Russian-Balkan alliance of Russia, Serbia, Bulgaria and Greece. There is also the profitable business of petroleum comprising the proposed pipelines from Russia to Greece and involving the Russian monopoly of the petroleum industry in Serbia and Bulgaria.
The latest parting in Kosovo and the violent path to it are also a tragic return to Rebecca West’s forebodings about inter-war Balkan societies, their past feuds and potential for future conflagrations. Her 1941 magnum opus, Black Lamb and Grey Falcon, is titled on a Macedonian fertility ritual involving the sacrifice of a black lamb and the Serbian legend of Prince Lazar, who, faced with two options presented to him by a saintly falcon (Prophet Elijah), chose to forgo earthly conquest and opted to sacrifice his whole army and himself against Turkish invaders in the 1389 battle of Kosovo in return for heaven and life everlasting. The celebrated British author was troubled by the cults and culture of blood, sacrifice and martyrdom for conflicting causes that have been the stuff of Balkanization, then and now, and of ethno-nationalist wars of every kind, everywhere. Rebecca West was also troubled by the lack of international will and institutional instruments during the interwar years to confront the rising threat of violence, and her insights into the Balkan situation at that time inspire some of those who support greater international intervention in support of defenseless people in our time.
The Kosovo crisis
The six republics of Serbia, Croatia, Slovenia, Bosnia-Herzegovina, Macedonia and Montenegro, and the autonomous province of Kosovo (within Serbia) constituted Yugoslavia that came into being at the end of the Second World War. Its disintegration began a decade after Tito’s death in 1980. The country broke up along primordial ethnic and religious lines which coincided with the federal jurisdictional boundaries, but it would be wrong to conclude that the breakup of Yugoslavia was the result of ethno-federalism. Without ethno-federalism there would have been no Yugoslavia, and the arrangement worked quite successfully for nearly fifty years. It was the undermining of the spirit and the pre-suppositions of the ethno-federalist framework that caused the breakup and not the framework itself.
The disintegration took place in several stages. The early separation of Slovenia and Macedonia went off smoothly, demonstrating that state units can secede peacefully and voluntarily. Other peaceful examples include the separation of Czech and Slovakia, the separation of the Baltic states and much of the rest of the former Soviet Union. After the first stage of peaceful separation in Yugoslavia, bitter wars broke out over Croatia and Bosnia-Herzegovina, but mostly because of the status of the Serbian populations living in the seceding territories. Overall, the Serbs appeared to have been less emotional with these breakups but have been rather fanatical about holding onto Kosovo. The Serbian claims and ties to Kosovo territory are almost entirely atavistic and religious, and they are linked to the legend of the Battle of Kosovo of 1389, and the location in Kosovo of Greek Orthodox Christian monasteries that were the mainstay of the medieval Serbian kingdoms. Complicating the matter are the counter claims of the Kosovo Albanians with their own competing memories and tombs from the same Battle of Kosovo.
“No one shall dare beat you again,” said Slobodan Milosevic, the former mediocre Communist apparatchik turned Serbian strongman, to a small crowd of Serbs living among Kosovo Albanians. That was in 1987, and with those words Milosevic galvanized Serbian nationalism in Kosovo. He went further and abolished Kosovo’s autonomy, expelling tens of thousands of Albanian workers from government jobs, and suppressing their language and educational rights. In retaliation arose the Kosovo Liberation Army, and the back and forth violence between Serbs and Albanians left tens of thousands dead, most of them Albanians. It was the extent of the carnage and the obduracy of Milosevic that invited the NATO forces to bomb Belgrade for three months in 1999 and force Milosevic to surrender. Kosovo became a UN protectorate with NATO forces maintaining law and order, until its declaration of independence two weeks ago.
The curse of ethno-nationalism
There are many aspects to the failure of State of Serbia. First, it lost its moral right to rule over Kosovo territory after the way the Serbian army and militias massacred and brutalized the Kosovo Albanians. Second, it misread the intention of the NATO forces and overestimated its own strength to resist the NATO bombardment. Third, Milosevic miscalculated that the majority of the Serbian people would be with him in taking on NATO and the West. On the contrary, the opinion was divided in that many Serbs wanted a friendly relationship with Europe and this has since been borne out by the manner in which Milosevic was overthrown and the continuing desire among Serbs to join the European Union. Last, the atavistic reasons and the emotional attachment the Serbians have for Kosovo blinded them to the plight of the Kosovo Albanians and led them to take inconsistent and therefore indefensible positions about the status of Kosovo.
Specifically, after agreeing to the peaceful parting of Slovenia and Macedonia, and accepting the more violent separation of Croatia and Bosnia-Herzegovina, Milosevic pigheadedly abolished the provincial autonomy of Kosovo. Further, as recently as May 2006, the Serbian parliament accepted and endorsed the voluntary separation of the republic of Montenegro of just over half a million people. But the Serbs took an intransigent position in regard to Kosovo with nearly 2 million Albanians only to lose it totally in the end.
As with all separations whether involving married couples or multi-ethnic societies, Kosovo and Serbia may have lost more than they would gain - Serbia by failing to accommodate the people of Kosovo and Kosovo as it faces a future full of uncertainty after the initial euphoria over independence. The people who live in Kosovo, not the expatriates who flew in to cut the independence cake, will face the reality of 65% unemployment, low monthly wage of $250.00 by European standards, and the need to depend on donor countries led by the US and a promise of $330 m aid in 2008. The EU countries are expected to provide personnel and resources to help with law and order and administration after the UN ends its protectorate role. The effect on Serbia, itself suffering 25% unemployment and rated as the poorest European country, would be no less severe, emotionally as well as economically. The membership in the EU for both Serbia and Kosovo may be a step towards reconciliation between the two states.
Among the positive aspects of the declaration of independence is the official rejection of violence by both the governments of Serbia and Kosovo as a means to resolve the crisis. A second positive aspect is Kosovo’s commitment to secularism and multi-ethnicity as founding principles of the new state. Although made at the prompting of the Western benefactors of Kosovo, a formal commitment is better than none at all. The emotional realities on the ground are quite different, however. Kosovo, along with the former republics of Bosnia and Macedonia, remains vulnerable to further disintegration. The logic and curse of ethno-nationalism is just that-the acting out of the vicious cycle of sovereignty assertion, self-determination claim, and never ending disintegration.
March 1st, 2008
By Saman Gunadasa
Since December, the Sri Lankan population has faced another sharp jump in the price of daily essentials, including rice, wheat flour, bread, milk powder and fuel. Many working families are now struggling to have three meals a day.
According to the Sri Lankan Central Bank, the annualised inflation rate for last year was 21.6 percent—the highest in South and Southeast Asia. Last month, Colombo’s Consumer Price Index (CCPI) jumped from 5,955 to 6,302 an increase of 347 points, the highest ever monthly
rise.
* The price of rice, the staple food in Sri Lanka, has nearly doubled in the past three months. The widely eaten samba rice almost doubled in price from 48 rupees ($US 35 cents) per kilogram last November to 85-100 rupees in January. Currently, the price is hovering around 70 rupees.
* The cost of wheat flour rose by 16 percent in January, from 59 rupees per kilogram to 68 rupees. Last year, it increased by 45 percent, pushing up the cost of bread.
* In January, the cost of petrol increased to 127 rupees ($US1.16) per litre, up from 117 rupees, while a litre of diesel and kerosene (the everyday fuel of the poor) went up to 80 and 70 rupees respectively.
The domestic gas price rose from 1,300 rupees to 1,495 rupees for a 12.5-kilogram cylinder-an increase of 14 percent. Over the last two years, fuel prices have more than doubled. As a result, transport fares and fees have increased again.
* The State Electricity Board has decided to increase electricity charges by between 43 and 150 percent from March.
A major factor driving these price hikes has been the government’s huge military expenditure. Since July 2006, President Mahinda Rajapakse has plunged the country back into war with the separatist Liberation Tigers of Tamil Eelam (LTTE). Like the governments of his predecessors, which were completely unable to address any of the social problems facing the masses, Rajapakse is whipping up anti-Tamil chauvinism in order to divert social tensions.
Last November, Colombo increased military spending to 167 billion rupees ($US1.5 billion) for 2008-an increase of 20 percent. In an interview with the Daily News on February 26, Ranjith Siyambalapitiya, the deputy finance minister, indicated that by February, war expenditure had already risen by 10 billion rupees.
In a criminal effort to crush the LTTE militarily, the Sri Lankan army is buying more weapons and recruiting more soldiers. The government is financing the war effort by imposing taxes on consumer goods, borrowing funds at high interest rates and printing more money.
In March 2007, the Rajapakse government was forced to scrap the import taxes on 10 essential food items in the face of growing anger among
working people over rising living costs. The government re-imposed these taxes just after the 2008 budget was passed last December,
claiming it could not afford to lose the revenue.
In the name of developing the country’s infrastructure, the Central Bank has announced plans for another $US300 million loan from international money markets. The government borrowed $US500 million on the same pretext last year, but the loan was used to settle debts with other banks. In fact, these loans are being used to finance the war.
Faced with a deepening economic crisis, the government has resorted to pumping out more paper money. Harsha de Silva, an economist told the IANS on February 10 that between May and September last year, the Central Bank issued currency worth 49 billion rupees ($US457 million). This cash injection has contributed to rising inflation.
A Sunday Times comment on February 24 declared that the government’s worsening fiscal deficit was causing high rates of inflation. “These deficits have been incurred partly due to the immense war expenditure, especially in recent years. What is not realised is that deficits add to the public debt and therefore to the servicing costs of the debt.” Debt repayments account for 40 percent of total government expenditure.
Soaring global energy and food prices are accelerating inflation. Higher import prices have contributed to Sri Lanka’s trade deficit of $3.56 billion in 2007-an increase of nearly 6 percent from 2006.
The international credit ratings agency, Standard and Poors (S&P) downgraded Sri Lanka’s economic outlook from “stable” to “negative” on February 16. According to S&P, “current expenditures, notably defence and interest service, have been higher than planned. Political conditions, including recent developments in the war with Tamil separatists, continue to weigh on Sri Lanka’s rating.”
Apart from the civil war, the developing recession in the US, which accounts for 40 percent of Sri Lanka’s exports, could make matters even worse. Bank of Ceylon chief financial officer Saliya Rajakaruna warned on February 27 that should the US economy dip by 1 percent, it could “severely” affect South Asian countries such as Sri Lanka and Pakistan. He rejected the idea that the growing trade with India was sufficient to “de-couple” Sri Lanka from the impact of a US recession.
Between 2006 and 2007, Sri Lanka’s economic growth rate fell from 7.4 percent to 6.7 percent. The Central Bank has predicted 7 percent growth this year, but other analysts forecast slower rates.
Rising class tensions
Last Wednesday, the Ceylon National Chamber of Industries (CNCI) urged the government to reverse its electricity price hikes. CNCI chairman A.K. Ratnarajah declared: “The high cost of interest, the restriction of movement due to the security situation, the increasing cost of transport and services, the numerous holidays, the impact of spiraling inflation, numerous taxes and levies are an additional burden on the industrial sector. Instead of taking steps to lessen these impediments and help enhance competitiveness in a free market economy, adding up further hardships on industries by way of increased electricity tariffs would certainly destabilise the industrial sector, with disastrous consequences for the national economy.”
Ratnarajah warned of the loss of export revenue, increased volumes of imports, lower tax revenue, reduced wages or loss of employment and
the “gradual disintegration” of the country’s industrial base. “More and more local industries will explore the possibility of relocating in other countries. Thus instead of attracting foreign direct investment, industries will move away from Sri Lanka.”
Ratnarajah’s comments constitute a warning to both Rajapakse and the entire political establishment that drastic measures must be taken to shift the economic burden of the crisis directly onto the backs of working people. Unless Colombo fulfills its demands, the business elite will “relocate” the manufacturing industry, a sector that accounts for 17 percent of Sri Lanka’s gross domestic product (GDP) and employs over 1.5 million workers.
Already workers’ wages have been cut to the bone. Private sector workers have not received any increase for four years. Female workers in the apparel sector, Sri Lanka’s manufacturing backbone, have started to quit their jobs due to chronic low wages, which are not enough to pay for board and meals. Their average monthly wage is about 6,000-8,000 rupees ($US60-80).
Rajapakse has branded workers and farmers “traitors” for demanding better pay and conditions. Amid spiraling inflation, he was forced to announce a tiny 375 rupee ($US3.75) “living cost allowance” to public sector employees in the 2008 budget. However, the CNCI statement indicates pressure on the government to cut more subsidies on basic essentials. Any such moves will inevitably intensify social tensions.
The main opposition United National Party (UNP) is trying to hide the fact that it is massive military expenditure which is driving the attacks on living standards. The UNP makes various rhetorical criticisms of the government, but shares the same anti-Tamil communalist politics. The UNP launched a poster campaign on February 14, lamenting: “Expenses soar but we are short of money! Throw out the government!” But the campaign has failed to arouse any popular enthusiasm. The UNP’s own record was to initiate “free-market” policies in the late 1970s and to begin the 25-year civil war in 1983.
The Sinhala extremist parties such as the Janatha Vimukthi Peramuna (JVP) and Jathika Hela Urumaya (JHU) are making right-wing populist appeals. They blame government corruption and the high cost of maintaining the world’s largest group of government ministers as the main cause of rising inflation. (The Rajapakse government has 109 ministers out of 111 government MPs, in order to maintain its extremely unstable ruling coalition.)
The JVP helped Rajapakse come to power in 2005 and consistently pushed for the breaking of the ceasefire with the LTTE. Now, it is loudly protesting the rising prices. Significantly, however, the JVP has abandoned its earlier demands for higher wages for both public and private sector workers. This is the logical outcome of its “Motherland First” campaign, which calls for living standards to be sacrificed for the war against the Tamil minority.
The JHU is even more aggressive in calling for wartime sacrifice. Its posters declare: “If Sri Lankans tolerated a war [World War II] which was not ours by eating bajiri [a low-grade grain not suitable for human consumption], why the grumbling in our own war today?”
During World War II, the British colonial rulers demanded that the Sri Lankan masses make major sacrifices on behalf of British imperialism’s efforts to maintain its dominant world position. Sixty years after “independence”, the Sri Lankan ruling elites are demanding the same, on behalf of a war whose purpose is to divide the working class, rural poor and youth, in order to maintain capitalist rule. [courtesy: WSWS]
March 1st, 2008