by Chandre Dharmawardana,
chandre.dharma@yahoo.ca

The TNA is the main political party of the North. S. Shritharan was recently elected its leader and M. A. Sumanthiran, who is regarded by some as being “barely Tamil”, as one Eelamist resident in Canada put it, was sidelined.  Sritharan’s vision, expressed in post-election speeches, demands the merger of the Northern and Eastern provinces; he rejects the 13A as being grossly inadequate to meet the aspirations of the Tamils. The political parties of Gajendra Ponnamblam, and of C. V. Wigneswaran takes an even harder public stand. All tactically reject 13A, even though they rush to India to support 13A when support for 13A weakens in the South. The positions taken by southern politicians regarding 13A are also merely tactical and opportunistic.

Ironically, 13A is already a part of Sri Lanka’s Constitution, with some parts of it implemented, and others in suspense, mainly due to a huge lack of trust across the Northern and Southern political formations. Even the Eastern Tamil leaders do not trust the Northern leaders.

While the minority leaders still seek the chimera of an Indian supervisory role, the majority-community politicians know that strong Indian interventions, even “parippu dropped from air” are no longer a part of the show. President Ranil Wickremasinghe was seated next to Prime Minister Narendra Modi at the latter’s inauguration, while no TNA leader was visible. Meanwhile, the provincial councils themselves have atrophied, with provincial elections not even considered worth the cost, under the current circumstances.

The Northern political leaders rightly believe that any government in Colombo will be a government of the Majority Community and that minority rights will NOT be protected under such a set-up, judging by past history. So, they aspire to have a separate government of their own as the “only effective approach”. However, this approach triggered the past history of communal politics and violence that led to terror and counter-terror. Finally, the TULF leaders, Sinhalese politicians, even the Indian Leader who fathered the 13A, and thousands of innocent civilians got wiped out.

If there is no trust, there can be NO federalism, nor an effective 13A. Even an independent Eelam, separate from a Sinhalé by a physical border is not viable, as the two neighbours will be continually at war, as is the case between India and Pakistan, or across and even within Indian states (e. g. Manipur), even though the “Indian Model”, like 13A, is claimed to resolve these conflicts. Furthermore, such “independent” states will be forced to join up with big powers and become mere pawns of global proxy wars. That is the end of their “self-determination”.

The TNA says, “We don’t trust the majority, so we want our own government; but the minorities who will be under us, i.e., Muslims of the East or any Sinhalese who live in our “exclusive homeland” must trust us. Just forget attacks on Muslims or Sinhalese minorities when the TNA was an LTTE proxy”! This “aspiration” for hegemony by Tamil leaders over other minorities will be rejected by the respective minorities, just as the Tamil leaders reject being ruled by the Majority that they do not trust.

Social-choice theory

How can we equitably allocate agents (or electoral seats) to represent a group of people within a unitary setup (with a total quota of 225 seats), or with subdivided setups (e. g., with provincial councils or federal states with quotas of seats reflecting minority groups)?

This question falls within a class of much studied mathematical problems in game theory, mathematical economics as well as in the theory of social choice. Intellectual giants like John von Neumann and other mathematicians pioneered these studies. However, the most important results relevant to our discussion here came from Blinski and Young as well as from Kenneth Arrow. The latter won the Nobel Prize for economics in 1972 for his theorems on “social-choice theory”.

Blinski and Young proved a theorem showing that any apportionment rule (or representation and devolution rule) that stays within an assigned quota (say, of seats) suffers from what is known as the population apportionment paradox. This states that unless the populations remain absolutely static, even if the minority has a decisively large rate of population growth, the majority still gains more representation (or more power) inexorably! There is NO fair apportionment scheme!

 Blinsky and Young’s result was a surprising “no-go” theorem. However, Arrow’s theorem, formulated in 1951 was even more surprising and counter-intuitive. Arrow laid down five “self-evident” axioms (or rules) about what may be called the “Will of the People” to be represented. For instance, a key rule is that the preferences and aspirations of a group should be chosen only from the group members (and not from outsiders). Another axiom is that the “will of the group” must not be that of one particular person; this is known as the no-dictator rule. The other axioms are similar harmless-looking rules about the group having specific preferences (e.g., favouring a set of religious or cultural traits against another set), or having maverick members who have changed policies in the past on a specific preference, although now in accordance with the “will of the group”.

Arrow’s impossibility theorem

Kenneth Arrow proved that, in spite of the highly democratic and seemingly “fair” formulation of these axioms, no such fair representation is possible. This is known as Arrow’s Impossibility Theorem. This theorem states that mandating the preferences and aspirations of the group cannot be ensured while adhering to usual “democratic” principles of fair voting procedures!

The mathematical conclusion is that a selection of people making decisions for those who elected them can never be a rational or fair process, however wise or benevolent they are! Their decisions will be necessarily autocratic! Naturally, the minorities within any group, be it under the Sinhalese majority in the main government, or under the Tamil majority in the TNA government reigning over the North and the East, will discriminate against the minority in each case.

Every available constitutional representation that satisfies Arrow’s axioms (i.e., common-sense ideas of fairness) is a perverse one. There is no “will of the people” or a democratic way of representing it. This very painful conclusion, reached by mathematicians in the 1950s, has stood all critical attacks on it. For over twenty-two decades, political scientists for whom the concept of the “will of the people” is as sacrosanct as the geocentric universe was to the medieval church attacked it! Instead of disproving Arrow, similar impossibility theorems, no-cloning theorems, etc., have been established in quantum information theory and quantum mechanics.

Devising an electoral scheme is mathematically equivalent to an apportionment scheme. Instead of allocating seats on the basis of population (i.e., “The People”), one may consider allocating “seats” on the basis of votes. This leads to models based on proportional representation (PR) instead of apportionment.

Mathematicians have shown that PR leads to even more serious negative consequences than apportionment. A variety of paradoxes of the Blinsky and Young type have been established. A very serious conclusion is that even the mildest PR system will confer a disproportionate amount of power to the third largest party in parliament! The third largest party becomes the king maker and often comes into a coalition with the second-ranking party to become the government! The validity of these results from game theory in practical politics has been established by studies of the history of governments in Germany, Israel and Denmark where high levels of proportional government have been legislated.

In my opinion, a way around these problems is to abandon electoral methods and return to the method of SORTITION advocated by Aristotle and used in several Hellenic cities during the time of Pericles.

Sortition has been adopted today in various limited ways, especially for local or provincial governments, in Ireland, France, Belgium, Canada and even Mongolia. In the simplest sortition model one arbitrarily selects by lottery a group of people who constitute the parliament. While these legislators last only five or six years, it is the administrative service that persists. The sortition parliament is not claimed to represent the “will of the people”. The lottery may be open to all the people, or only to a selection defined by their public service, education etc., as specified by a parliament chosen initially by simple sortition. That is, the first sortition parliament may enact more elaborate sortition models, but ensuring that the random element implied by sortition is never negated.

The sortition model ensures that the same set of corrupt politicians do not continue to get elected every time by controlling the list of candidates as well as the vote-gathering infrastructure which favours existing parties that have accumulated much wealth, by hook or crook. It also eliminates demagogues as the election is by lottery.

In other words, SORTITION ensures that a “system change” occurs every time. It ensures that political crooks, their henchmen and progeny do not entrench themselves and hold onto power over decades and decades, be it in the North or the South. I had given a discussion of the sortition model in a previous article in the Island (02-01-2023). It may also be accessed via the web (https://thuppahis.com/2023/01/02/crunchtime-resolving-sri-lankas-political-dilemma/ The applicability of the sortition model to the political problems in the USA has been discussed in the Harvard Review of politics (https://harvardpolitics.com/sortition-in-america/).

Lawyers’ Collective Statement:

“The Lawyers’ Collective condemns the above statements made by the President, the Minister of Justice, the Minister of Education, and Dayasiri Jayasekare, MP. We are of the view that any allegation against the judiciary must be made in the form of a formal complaint before the appropriate forum and not by way of a statement in the Parliament under the cover of Parliamentary privilege. The Collective believes such statements, immediately prior to an election, to be politically expedient and aimed to cause uncertainty and loss of confidence in the People in the judiciary and democratic processes. The Collective requests the public to stand up in protection of the independence of the Judiciary at this time and always.”

On 18 June 2024 President Ranil Wickremesinghe, speaking in Parliament, criticising the recent Supreme Court determination on the Gender Equality Bill referred to the court as having engaged in ‘judicial cannibalism’. The President went on to say that Parliament ‘could not agree with the Supreme Court ruling’ and while he doesn’t propose to summon judges before parliament, he proposes the appointment a Parliamentary Select Committee to review the determination. Previously, the President also demanded the appointment of a parliamentary Select Committee to investigate the workings of the Constitutional Council when it did not approve his nominee to the Supreme Court.

On 19 June 2024, the Minister of Justice, Wijedasa Rajapakshe, in Parliament, stated that the Supreme Court Orders in effect suspended parts of the Constitution and drew comparison between the orders of the Supreme Court and Adolf Hitler suspending the civil rights prior to the outbreak of World War II. These statements are aimed at instilling fear and confusion in the minds of citizens.

The Minister levelled serious allegations naming specific judges and lawyers. Any such allegation of corruption involving judicial officers must be taken extremely seriously but these public statements are a misuse of Parliamentary privilege. Allegations should be confined to formal complaints before the proper fora. Every allegation must be dealt with due process and with a view to strengthening institutions. It is disappointing and extremely concerning that the Minister, a senior member of the legal profession, a President’s Counsel, levels allegations against the District Court judge who issued a stay order against the Minister regarding an issue on the office bearers of the SLFP. Further the Minister of Education, Susil Premjayantha and Dayasiri Jayasekare, Member of Parliament also made comments on the cases in which they have certain interests.

The above remarks are an assault upon the independence of the judiciary, a cornerstone of our Constitution. The President, Minister of Justice, Minister of Education are representatives of the entire Executive. The President also exercises a critically important Constitutional power and responsibility in appointing judges to our highest judicial forum- the Supreme Court and the Minister of Justice controls resources to the judiciary. Such high executive office making insidious sweeping remarks about the judiciary using parliamentary privilege is a clear abuse of their power. It sends strong signals to judicial officials that certain judicial decisions will not be tolerated by this executive.

Minister Premajayanth

It implies complicity with the executive may receive career advancement and support. By using the nationally televised platform afforded to speeches in Parliament, the President and Minister of Justice to make disparaging remarks on the judiciary demeans this important public institution central to a functioning democracy. It undermines the public confidence in the authority and impartiality of the judiciary. Foundational concepts of the rule of law, the separation of powers and the balance of power are founded on maintaining public confidence. Public confidence among the sovereign People legitimises the entire State. The People support and legitimise State powers of governance when they have confidence in the judiciary. As such, these statements directly threaten the political stability of the country.

Constructive critique, fair comment and difference of opinions are all valid forms of the right to freedom of expression. However, given the Executive’s equal role in ensuring the balance of power among the organs of government, and protecting the sovereignty of the People as guaranteed by the Constitution. It is incumbent on the Executive in a democracy to refrain from eroding the powers and responsibilities of the other key institutions and express disagreement due care.

Disagreement cannot cross into threat or intimidation. Restraint must also be exercised in any comments or actions made about the judiciary even in Parliament in direct recognition of the fact that judges do not have a right of reply and cannot defend themselves.

The Lawyers’ Collective views this attack on the judiciary, which in the context of mounting litigation before courts, is the last recourse and refuge against abuse of State powers. The Collective has observed increased participation in democracy, whereby citizens have challenged decisions on appointments to high posts, corrupt decisions, undemocratic and repressive legislation initiated by the executive and Executive measures mounting hardships on the lives of the People.

We have also seen repressive measures by the Executive against public protests and dissent. In this context, and the mounting evidence of executive interference with the judiciary, these statements are not isolated excesses, but now form a clear pattern of intimidation by politicians holding executive power. It is a pattern of authoritarian conduct by a President who serves without a direct mandate from the people and a Minister in the Cabinet of such a President.

The Lawyers’ Collective condemns the above statements made by the President, the Minister of Justice, the Minister of Education, and Dayasiri Jayasekare, MP. We are of the view that any allegation against the judiciary must be made in the form of a formal complaint before the appropriate forum and not by way of a statement in the Parliament under the cover of Parliamentary privilege. The Collective believes such statements, immediately prior to an election, to be politically expedient and aimed to cause uncertainty and loss of confidence in the People in the judiciary and democratic processes. The Collective requests the public to stand up in protection of the independence of the Judiciary at this time and always.

Minister Rajapakshe

On behalf of the Lawyers’ Collective

Upul Jayasuriya, President’s Counsel

M.M. Zuhair, President’s Counsel

Dr. Jayampathy Wickramaratne, President’s Counsel

Professor Savitri Goonesekere, Attorney-at-Law

Anura B. Meddegoda, President’s Counsel

Saliya Pieris, President’s Counsel

Professor Deepika Udagama

Professor Camena Gunaratne

S.T. Jayanaga, President’s Counsel

Upul Kumarapperuma, President’s Counsel

Rev. Fr. Noel Dias, Attorney-at-Law

Jagath Kularatne, Attorney-at-Law

Lakshan Dias, Attorney-at-Law

Srinath Perera, Attorney-at-Law

K. W. Janaranjana, Attorney-at-Law

Ermiza Tegal, Attorney-at-Law

Darshana Kuruppu, Attorney-at-Law

Sandamal Rajapakse, Attorney-at-Law

At the time Sri Lanka was under the British, our people were generally disciplined with few littering the streets or any public place. After independence that happy situation changed.In the good old days it was rarely that we heard of a murder; if and when it happened it became a scandal, with the kavikola karayas reciting the whole story in Sinhala verse at bus stands and selling their printed version for 10 cents each. This was a regular sight at the Kandy bus stand.

Today not a day passes without news of murders. Assassins on motorcycles bump off targeted vicims and vanish from the scene. Most of them could be contract killings or the result of gang rivalry. There have been many political killings too and in most cases people know whodunit. But the influence of those who directed such killings prevent any meaningful follow-up. But the perpetrators will have to answer one day as history has demonstrated.

Unlike in the past, too many Lankans are uncaring of harm to others as well as the environment when they dump garbage on the roadside and into the canals. Some so-called educated people traveling in luxury vehicles throw garbage bags on the roadside.

Fortunately, there are fewer smokers in Sri Lanka now than then. Most of today’s youth do not smoke though some may be addicted to narcotics. As such, there are fewer empty cigarette packs, butts and used matchsticks thrown on the roads and pavements. But those who smoke continue to litter public places.

Then there are the betel chewers spitting the red juice any and everywhere. Some have had very bad experiences of betel chewers spitting out of bus windows. They also had the bad habit of leaving their chunam trademark on lamp posts. Thankfully that has now ceased. Also younger people do not chew betel, helping to keep the cities and towns a little cleaner.

Singapore was like us prior to the arrival of Lee Kwan Yew. But he changed all that by fining offenders on the spot. Later, they were made o clean the streets for a week or two. There is no littering of streets in Singapore any more and there’s no need for any checks.

Sri Lanka will never be able to match Singapore as long as corrupt politicians hold the reins of government. Lee’s was the only remedy to combat littering. After the Adam’s Peak season ended, people genuinely interested in keeping the environment clean organized clean-ups collecting mountains of plastic bottles and cellophane and other wrappers.

Apart from pollution, there are the blatant acts of vandalism felling valuable trees and denuding forests, unlawful occupation of crown land and unauthorized construction that continue unabated. The best solution to this problem before it escalates further is to emulate the Singapore model. No monitoring is needed there as Singaporeans have become environment friendly.

HM NISSANKA WARAKAULLE