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The 20A:

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A very wrong approach to Constitution-making

by Jayadeva Uyangoda

The proposed 20th Amendment has several major defects. One of its key faults is that its sponsors and framers have chosen a very wrong approach to constitution-making.

There are several reasons why this approach is wrong.

The first is their refusal to learn constructive lessons from the past constitutional reform experiments. The lessons that seem to have been learned are all partisan, narrow-mimed, politically short-sighted, and therefore, wrong ones.

The second is that the framers of the 20A are not animated by the larger democratic interests of the political community which Sri Lankan people constitute collectively. Instead, the primary motivating factor seems to be political self-interest.

The third is that the proposed Amendment is totally devoid of a democratic normative framework relevant to our society and its own progressive-modernist legacies of constitutionalism. Instead, in disinheriting the progressive legacies of our society’s modern political and social life, it builds itself on one or two dreadful and destructive experiments of constitution-making in the recent past.

Lessons from the Past

Sri Lanka has a relatively long history of unmaking, making and amending constitutions. They offer a rich array of lessons about what to be avoided as well in constitution-making.

Both the First and Second Republican Constitutions of 1972 and 1978 together and individually offer the following lessons:

(a) Any popular mandate for a new Constitution should not be interpreted as licence to undermine or remove the democratic checks and balances in the exercise of political power. The reason is quite clear: it would encourage rulers and bureaucracies to violate with impunity citizens’ freedoms and liberties. Such misuse of the popular mandate is certain to produce tyrannical consequences and ultimately will erode the legitimacy of the government itself.

(b) Undermining the rule of law, weakening the independence of the judiciary, and making the accountability institutions subservient to the executive will initially please the egos of the politicians and officials, but in the long run are bound to create a deep chasm between the government and the citizens, rulers and the ruled.

(c) The eventual political cost of ignoring minority demands for political equality and equal citizenship rights in a constitutional scheme can be quite high. It will create a condition of unending ethnic tension in society as well as between the state and the alienated minorities.

(d) Constitutions with undemocratic intent as well as content will harm the legitimacy of not only the government in power, but also the prevailing system as a whole.

 

Lessons from 1978C and its 18A

Both the original 1978 Constitution and its 18th Amendment, together as well as individually, offer us the following crucial lessons:

(a) Any ruling party or government that ignores the golden rule of democratic governance that (a) political power is NOT unlimited and that (b) the right to, and exercise of, political power has inherent limits will do so only at its own peril.

(b) Any new Constitution, or any major alteration to an existing one, should not be designed to please the personal desires (‘whims and fancies’) of an individual, however powerful he or she may be at the time of constitution-making. A constitution thus designed is certain to come into conflict with the actual and objective needs of society as well as aspirations of its citizens.

(c) A new constitutional scheme should not be designed to serve only the interests of newly emerged wealthy elites in society. When a Constitution becomes an instrument of a narrow class of wealthy elites, who are suspicious of the dispersal of political power among citizens in a democracy, and entertain political ambitions to capture the state, it runs the risk of providing legality to despotism.

 

Lessons from 19A

There are four key lessons, among many, to be learned from the process of making the much-maligned 19th Amendment:

(a) Wide consultation in the drafting process is not only useful, but also helpful to improve the level of democratic health in the polity.

(d) It is always better to build consensus across all political parties in Parliament for a major amendment or a new Constitution. Constitutional consensus-building in a deeply divided polity like ours is a frustrating and time-consuming political exercise. Yet, it enables all, or a majority of, the stakeholders to take part in the process, make their inputs, and claim some ownership to the outcome although for partisan political reasons, some might later withdraw from the consensus.

(e) If the consultation and consensus-building in constitution-making is not politically managed with clarity of purpose, the overall goals of the constitutional compromise may run the risk of producing a constitutional scheme with potentially harmful internal anomalies and contradictions.

(f) A democratic constitution-making exercise today needs, more than ever, an unwavering political leadership to champion it through to the end by innovative and imaginative democratic means. The reason is a paradoxical one. Alternatives to democracy are also competing with democracy, with enormous material resources, to gain popular support and loyalty through democratic means. In this age of right-wing populism, media-manufactured popular consent and manipulation of public perceptions through information pollution, post-democratic alternatives tend gain easy currency and public legitimacy.

 

Constitutions and the Political Community

A Constitution is in the final analysis a Constitution for the entire political community within a country. Although the basic nature of that constitution may be conceptualised by a ruling party, to be sustainable and be able to survive post-regime change shocks, it should not reflect only the agenda of that ruling party or an individual leader. Experience in Sri Lanka as well as other countries shows that such constitutions have been the first step to despotism in some form.

Rather, a Constitution should embody the highest democratic goals and aspirations – ‘noble ends’ — of the political community, that are open to be shared voluntarily by the vast majority of members of that political community, notwithstanding the momentary shifts in their political judgment occasionally expressed at periodic elections.

A Normative Framework Needed

A good Constitution is always a democratic one. A good democratic Constitution for Sri Lanka should be guided by a value framework embodying a synthesis of the normative ethics which the people of our political community have inherited from our own liberal democratic, republican and social-egalitarian traditions, evolved through our own political and social modernity.

The Indian and South African Constitutions are model post-colonial Constitutions that are guided by such a value synthesis, derived from the best traditions of modern constitutionalism as well as egalitarian and social-justice impulses inherent in their local cultures and histories.

 

What legacy? What inheritance?

Finally, Sri Lankan constitution-makers should not consider the South-East Asian developmentalist authoritarian state model as a new constitutional template for Sri Lanka, because it goes against our own progressive constitutionalist legacy evolved during the past century or so.

What needs to be inherited and further advanced is that progressive strand of constitutionalism which we can claim as authentically modern and local. It appears that the framework of 20A have sought inspirations from wrong constitutional models, at home and abroad, that are devoid of any democratic normative content.

The Supreme Court, where the constitutional validity of the proposed 20th Amendment will be examined and debated, is an eminently suitable forum to raise these points as well. In a number of previous judgments, and as recently as December 2018, our Supreme Court has repeatedly validated the inherent normative framework of Sri Lanka’s own tradition of democratic constitutionalism.

Alerting our Honourable Justices, who make up the much revered public institution that is the last bastion of citizens’ freedom and democracy, should also be a part of the struggle for re-inheriting and defending our own best legacies of political and social modernity.



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Features

The challenge of keeping value-based politics alive

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Anti-migrant protests in Durban, South Africa. BBC

The current outbreak of anti-immigrant protests in Durban, South Africa is bound to have taken many a subscriber to value-based politics or political idealism quite by surprise. After all, this is evidence that despite the historic accomplishments of nation-builders of the stature of the late President Nelson Mandela it cannot be taken for granted that identity politics, including racism in its worst forms, is no more in South Africa.

At the time of this writing details are scarce on the substantive root causes of the protests but it could very well be that economic grievances, particularly on the part of the majority community in South Africa, are contributing considerably to the disaffection. Shrinking employment and material prospects are likely to figure majorly among the factors igniting the unrest.

Fortunately, the local authorities in Durban are losing no time in calling for peaceful co-existence among the relevant communities and are pointing to the vital importance of stepping-up national integration processes. Apparently, immigrants in sizable numbers from neighbouring countries are present in Durban. However, international TV footage of the protests quoted some local authorities as saying that the majority of the immigrants in some centres that housed them were not illegal migrants and had the documents that entitle them to be in Durban.

In the Durban protests the world has fresh proof of the socially divisive consequences of the gathering globe-wide economic disaffection, touched off particularly by the continuing crisis in West Asia. Going ahead, the world would need to brace for increasing identity-based unrest of the kind it is just witnessing in South Africa.

Considering that the material lot of ordinary people everywhere could only aggravate progressively, with the US and Iran showing no signs of negotiating an end to their confrontation any time soon, it will be left to the more democratic and progressive sections of the world community to initiate positive measures collectively to bring a measure of relief to the discontented.

The swiftness with which such relief will be provided would depend crucially on the importance those sections taking up these undertakings attach to value-based politics as opposed to Realpolitik of power politics.

Going by these yardsticks, Italy could be considered to be moving in the right direction. Recently Italy came to the fore in initiating the collective named, ‘Rome Coalition for Food Security and Access to Fertilizer’, which has as one of its aims the swift provision of fertilizer to economically weak African countries.

In a recent statement Italian Minister of Foreign Affairs and International Cooperation, Antonio Tajani, said that a principal aim of the project was to ensure that the farmers of Africa gained easy access to fertilizer, considering that food security is a growing concern among some of Africa’s economically vulnerable countries.

The statement went on to mention that some 30 countries hailing from the Mediterranean region, the Middle East, the Balkans as well as the FAO had been invited to join the coalition. The venture is far-seeing in that food security is main among the reasons for social discontent which in turn could degenerate into endemic political turmoil and bloodshed. Separatist violence and geographical fragmentation of countries wouldn’t be too far behind these developments, as Africa itself has often proved.

It is hoped that more G7 countries would take the cue from Italy and do what they could to ease the hardships of economically distressed countries, particularly of the global South. In these efforts they would need to break rank with the US, which is today brutally indifferent to the consequences of its policy of making ‘America First’, come what may.

Going by current developments, the Trump administration seems to be blithely oblivious to the wider, deleterious effects of its policy course in West Asia. Besides rendering Iran militarily and otherwise impotent nothing else seems to matter to Washington, as regards West Asia. This is policy short-sightedness of an extreme kind. After all, right now West Asia could be said to be sitting on the proverbial powder keg.

On the other hand, Iran is not giving the world the impression that it is doing anything constructive to get out of the policy straitjacket that it wove for itself decades ago. Rather than enter into a policy of ‘live and let live’ in relation to Israel in particular and initiate a process of reconciliation with the latter, it has chosen to operate within policy parameters that continue to damn Israel. This has put Israel always on the ‘defensive’ so to speak and prevented the opening up of space for meaningful dialogue.

That said, Israel is obliged to explore the possibilities of entering into a negotiatory process with the Arab-Islamic world that could lead to a de-escalation of tensions and bloodshed. It cannot continue to look at its neighbours through lenses that distort them as archetypal enemies who should be ‘wiped off completely from the face of the earth.’

In other words, the need is urgent for Realpolitik to give way to value-based politicks. Italy is beginning to prove that the latter approach could be pursued with some success. May be the EU and the UK could throw their weight behind these initiatives as well and establish that international politics could be refashioned on the basis of humane, civilized norms. The UN would need to be fully supportive of these moves and prove an organizational nucleus of the operations that follow.

In fact the time is ripe for people of conscience to collectively stand up on the side of peace and say ‘No’ to war and violence. Organizations such as the ICRC, the WHO and Medicines Sans Frontiers have already taken up this call. Referring to the widespread destruction of health facilities and their dehumanizing results these organizations have said, among other things, that ‘This is not a failure of the law. It is a failure of political will.’

True, ‘failure of political will’ among those powers that matter accounts for the runaway, uncontrollable nature of war and destruction in contemporary times, but more fundamentally it is a failure of the human conscience. It could very well be that the phenomenal levels to which violence and war have been unleashed today have had the effect of deadening consciences. This is a matter for urgent study and wide discussion.

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Features

Vesak celebrations … with Cuteefly

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Perfect for celebrations, gifts, and meaningful occasions // Gift pack

I would describe Indunil Kaushalya Dissanayaka as innovative and creative, and she operates under the name of Cuteefly.

Indunil always comes up with something novel to celebrate special occasions, and she does it with candles … and that’s her profession.

She was in the spotlight when she created a happening scene, with candles, for Christmas, Sinhala and Tamil New Year, and Valentine’s Day.

As lanterns light up Sri Lanka for Vesak, the Colombo-based candle maker is quietly turning wax and wick into little pieces of the festival.

Candles reflecting Vesak themes

Her candles reflect Vesak themes – light, peace, remembrance, giving, etc., to enable you to fill your Vesak celebration with devotion and beauty.

Among her Vesak creations is a lotus-shaped soy candle, scented with sandalwood, lavender, etc., meant to burn during this Vesak Poya Day.

Indunil Kaushalya Dissanayaka: Customers
praise her for her creativity

These handcrafted Vesak candles are perfect for offering at the temple, she says.

What makes her creations so novel is that they come in different shapes, scents, themes, and all are handmade.

What’s more, her customers have heaped praise on her for her creativity.

According to Indunil, her creations are perfect as a thoughtful gift … to bring beauty, unity, and light into every moment.

Says Indunil: “Our beautifully handcrafted Unity candles are designed with premium detail and love, making them perfect for celebrations, gifts, and meaningful occasions.”

Cuteefly, says Indunil, is available online.

Readers could contact Indunil on 0778506066 for more details.

He Facebook Page is: Cuteefly.

Handmade with love

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Features

Dark Spots …

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Yes, dark spots do crop up on the skin, especially with sun exposure and, of course, as the skin ages.

However, these tips should be of immense benefit to those who are faced with dark spots.

Lemon and Honey Glow Mask:

You will need 01 teaspoon lemon juice and 01 teaspoon honey.

Mix the lemon juice and honey well and then apply this mixture, only on the dark spots.

Leave for 10–15 minutes and then rinse with cool water.

Benefits:

Lemon helps brighten pigmentation.

Honey moisturises and heals skin.

Gives a natural glow.

* Aloe Vera Gel Treatment:

All you need is fresh aloe vera gel.

Apply the gel apply on dark spots, before going to bed.

Leave overnight and wash in the morning.

Benefits:

Reduces acne marks and pigmentation.

Soothes irritated skin.

Helps skin repair naturally.

Turmeric and Yoghurt Paste:

You will need 01 teaspoon yoghurt and a pinch of turmeric

Mix the yoghurt and turmeric into a smooth paste and apply on affected areas.

Leave for 15 minutes and then wash gently with lukewarm water.

Benefits:

Turmeric brightens skin naturally.

Yoghurt removes dead skin cells.

Helps fade dark spots gradually.

Use these packs 02-03 times a week as results are generally seen over time.

You can also try this out: Mix a ripe papaya into a smooth paste and apply to the face, or directly on to the dark spots. Leave for 15-20 minutes and then wash with lukewarm water.

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