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Are we slashing the nose to spite the face?

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Amending 19th Amendment

By Austin Fernando (Former Secretary to the President)

Recently, the Cabinet of Ministers decided to amend/repeal (?) the 19th Amendment to the Constitution (hereinafter referred to as 19). The media divulged that the government would retain positive features of the 19 and remove the unwanted. Concurrently, to identify and recommend these a Committee of five was appointed

 

Background of 19

The 19 has a chronological evolution. For conceptual value, let us review one aspect – the public service. The 1947 Constitution enabled an independent Public Service Commission (PSC) for them.

In 1972, the Sirima Bandaranaike government placed the public service under a PSC but brought in the Cabinet control for operationalizing. Through the 1978 Constitution, the JR Jayewardene government also placed public servants under the control of the Cabinet. These were acts of continuous politicization.

The Chandrika Kumaratunga government, by the 17th Amendment (Article 54), depoliticized the public service and other democratic aspects by the appointment of a PSC nominated by a Constitutional Council (CC), consisting of politicians and civilians. Seven similar institutions (e.g., the Election Commission, National Police Commission) also were legislated on-demand.

The Mahinda Rajapaksa government passed the 18th Amendment to establish a government-biased “Parliamentary Council” (PC). The President snatched the depoliticization efforts under the 17th Amendment through Commissions.

By 2014, there were criticisms and deep dissatisfaction with politicization created by the actions of all political parties. This dissatisfaction created revitalized pressure for depoliticization. Ultimately, Mr. Maithripala Sirisena sought a mandate for the presidency on the depoliticization slogan. The 19 was the consequence. It is acknowledged that the passage of 19 would have inevitably failed, sans interventions of President Sirisena.

 

Are our politicians sticks in the mud?

The responses of parliamentarians for depoliticization, in general, had been ridiculous. They supported depoliticization by President Kumaratunga (17A); supported politicization (18A) of President Mahinda Rajapaksa. They helped depoliticization (19A) by President Sirisena. Parliamentarians will sponsor the 20th Amendment to empower President Gotabaya Rajapaksa. Strengthening the hands of the already empowered seems a hobby of Parliamentarians!

Political reactions created humour when a Minister recently declared that support for 19A was due to a promise made to change the electoral system, which of course, is a sheer necessity. Humorously and unfortunately, politicians who agree to change the Constitution on verbal agreements are elected to Parliament.

The clamor reinstatement of powers removed by 19

There is heavy orchestration that security and development would collapse with 19A. From 1978 to 2009, Sinhala and Tamil youth, especially in the North and East, revolted and thousands of innocents were killed or made to disappear, and suspects were killed in Police cells when Executive powers revoked by the 19A were with incumbent Presidents. The Executive powers were inevitably linked to the onset of conflicts. Therefore, it is a wiser step to find alternative solutions for enhancing human security than to demand the return of powers withdrawn by 19.

The same applies to development. Investment attraction during the tenure of President Jayewardene and infrastructural development during President Mahinda Rajapaksa’s (although both face criticisms) were positive moments before the 19th Amendment removed powers. Despite these powers being intact, some Presidents did not undertake such compelling development. I will not mention names to protect their dignity. Thus, one may argue that development isn’t constitution-centric but leader-centric.

There are shortcomings in the 19A since it is a human product. Before the General Election, President Sirisena said that 19A had good aspects, but its flaws should be rectified. He singled out some drawbacks but did not suggest a Deputy Premier post in the 20th Amendment. But it is rumored so.

Meantime, some like Minister Wimal Weerawansa and parliamentarian Gevindu Kumaratunga, who wished immediate abolishing of 19A during the election campaign, now demand a new Constitution instead of patchworking 19 (e. g., dual citizenship issue). It is unknown why this change of heart. Guess is yours!

The President has made a firm statement on the 20th Amendment in his Throne Speech. Therefore, President Sirisena may have to support the abolishing of 19A. In politics, sacrificing principles for partisanship, hollow promises, and tribal branding are acceptable!

The significant changes in 19A are categorized under, change in the qualifications for presidency and powers of the President, enhancement of the capabilities of the Legislature (= Prime Minister), empowerment of Commissions by the Legislature, and the Right to Information.

 

Changing powers of the President

It is already stated that Articles 30 (2) and 31 (2) of 19, related to the five-year term of office of the President and the two terms in office and the Right to Information Act, would not be amended.

But the government would need the power to dissolve the Parliament without parliamentary consent or completing the four and half years mentioned in 70(1). While President Jayewadene has taught lessons on using alternative powers (i.e., Referendum) not to dissolve, the present government authorities otherwise learned negative lessons in October 2018.

Also, dual citizens are no longer allowed to be Parliamentarians. [Article 91 (d) (xiii)]. Critics who protest dual citizen Arjuna Mahendran appointed as Governor of the Central Bank do not mind a dual citizen becoming a parliamentarian, Minister, Prime Minister or President. Those who support Minister Namal Rajapaksa’s presidential aspirations (if any) seem not to understand that the change of dual citizenship could jeopardize this aspiration by introducing a competitor. Is the demand by some for a brandnew Constitution instead of amending 19 a response for this potential jeopardy?

When queried on these changes, Ministers GL Peiris and Wimal Weerawansa said that constitutional changes should not be person-centric. Based on Minister Peiris referring to Basil and Namal Rajapaksas by name, if the contention is that 19A was person-centric and has disadvantaged selected persons, then the 20th Amendment raises the question of awarding person-centric advantages to another.

 

Presidential and National Security

Under Article 43 (2) of 19, the Minister of Defense must be appointed from among the Members of Parliament. It is so in other countries that have more significant defence risks (e.g., India). Now the societal belief is that the President is the Minister of Defence. If true, the President has illegally “snatched” the subject of defence. Nevertheless, I passionately believe that the security function should constitutionally remain with the President.

I take this stance on constitutional grounds, quite impersonally. Article 4 (b) of our Constitution stipulates that the “executive power of the people, including the defence of Sri Lanka,” must be exercised by the President. The term defence’ is a specially chosen here. The President has the power and duty to “declare war and peace” [Article 33 (2) (g)]. The appointment of Military Commanders and the Police Chief is a presidential power (Article 61E), and, under Article 33A, the President is accountable to the Parliament on laws applicable to public security. Accountability to Parliament is about the President’s “own” powers, and not of another Defence Minister. The Ministry of Defence/relevant institutions must be under him to fulfil these functions.

When the President is held accountable for the duties performed by another Defence Minister, he is subjected to moral injustice, and the presidency is demeaned. The security/defence of the country is a constitutional responsibility of the President, and the 19th Amendment should be amended to strengthen his hands on defence and security. Technically “snatching security/defence” as purportedly done now is unacceptable. Also, he should not snatch other ministries on this basis, although he may prefer.

 

Increasing powers of the Legislature and PM

Sovereignty is “exercised and enjoyed” by the tripod Executive, the Legislature, and the Judiciary under Articles 4 (a), (b), and (c) of our Constitution. But what is heard, seen, and said now insinuates that all three functions should be left to the Executive. It seems to be the government’s political stance. It is not constitutional and decimates democracy.

When the Legislature is considered, the power of the President is weakened in several ways. Examples include the appointment of Ministers [(43(2)], non-Cabinet Ministers [[44(1)] ‘on the advice’ of the Prime Minister [43(2)] and remove any one of them on prime ministerial advice [Article 46 (3)(a)]. The power to remove the Prime Minister or any Minister was with the President [47(a)] in the 1978 Constitution.

The number of Ministers is decided by Article 46(1)(a) and (b). With 145 parliamentarians supporting the government President may opt to reward more portfolios and will require amending it.

Article 44(2) of the 1978 Constitution permits any subject or function unassigned to a Minister to be left with the President. This power was removed by 19, and the 20th Amendment may return this power to the President.

The sudden removal of the Prime Minister (as President Kumaratunga did in 2004 and President Sirisena in October 2018) [70(1)(a) of 1978 Constitutionn] is prohibited now. Such restriction is necessary for the stability of the Legislature and the country. Still, I think the 20th Amendment can be used to prevent the judiciary from rejecting such courses of action.

In this connection, the dissolution of the Cabinet and removal of the Prime Minister were issues. During the October 2018 constitutional crisis, it was argued that the President had this power over Article 48 (1) of the Constitution (Sinhala version), which is not in the English version. The judiciary rejected this. Any President will inevitably rush to regain that decisive power.

However, the extent to which these perfections are democratic is most questionable.

 

Duties of the CC

The CC plays a leading role in depoliticization in 19A. After abolishing 19A, the alternative to the CC could be the passage of an instrument closest to the 18th Amendment. Further provisions can be added as appropriate to concentrate power in the Executive. The 17th and 19th Amendments proposed a CC (including Members of Parliament and civilians). The 18th Amendment appointed a “Parliamentary Council” (PC) consisting of only Members of Parliament. It was total politicization. Although the PC could make nominations to the Commissions and Scheduled Offices in the 18, the President was allowed constitutionally to overrule them. The 19A allowed these appointments to be made only on recommendations of the CC [Article (41B (1)]. If the President did not appoint them within two weeks, they were considered “as deemed to have been appointed.” [Article [41B (4)] It prevented the President’s ‘monopoly’ of appointing. The President would like to use the 20th Amendment to remove these strictures on him.

Appointments under the 19A were mostly acceptable. The best evidence of the independence of the CC was observed when it (inclusive of Opposition membership) rejected two nominations made by President Sirisena to the Supreme Court and the Court of Appeal. On a handful of occasions when the President did not agree to appoint some of the nominees to Commissions, they were successfully reconciled through dialogue. The CC should not be the cat’s paw of the President; nor should the CC be a dictator. Amendments to 19A for efficient and transparent operationalization of the CC could be undertaken now. But what the government needs is to win, at all costs, because of its two-thirds majority!

Critics of the CC highlight the failure to appoint a Police Chief and the conduct of a Member of the Election Commission. To correct these, they demand abolishing the Commissions! The former, I believe, is a result of public service disciplinary procedures that cannot be ignored by the National Police Commission. Critics could have sought legal redress if Article 41A (8) of the Constitution was insufficient to discipline this Member. Providing in 20th Amendment remedies for such will be more effective than crushing the CC. One should not slash the nose to spite the face!

Another complaint is that even the President cannot appoint a judge. The reason may be the failure of President Sirisena to appoint two persons nominated by him to the judiciary. There were Opposition members in the CC when those decisions were made. Yet, they do not accept these reasonable decisions. These are victories for democracy. Also, they are silent that the CC also considers Chief Justice’s recommendations.

If the monopoly on appointing judges is given to the President, there will be no space for objections in the CC. The President is a ‘political product.’ He is a human being. Therefore, the President can appoint his supporters to higher judicial posts from his professional organizations if he so wishes. The President must respect Lord Chief Justice Hewart’s maxim that justice should not only be done but should be seen to have been done.

Of course, one can criticise the CC for some questionable appointments. Again without slashing the nose to spite the face, the 20th Amendment could propose cleaner operational guidelines. In a country where judicial appointments were made (though rarely) based on personal consideration before the 19A, these critics should value the CC machinery as superior to pure presidential whim and fancy.

 

Information law and action

Some question whether the Right to Information Act is adequately implemented due to deliberated delays by the authorities. Although this is not changed, it is appropriate to strengthen operations through the 20th Amendment. I note that not only the RTI Act but also other Commissions may require similar legal changes.

 

The value of caution

It is not surprising that a two-thirds majority or a government capable of manipulating that superpower would somehow pursue achieving its goals. Everyone who came to power thought that power was eternal, though it is impermanent. It is also not surprising seeing leadership that utilized the 18th Amendment attempting to regain lost powers. Even the present Opposition may pray for rejuvenation of powers of the 1978 Constitution; because politicians are greedy for power. Therefore, it is not surprising that they are also fluid about 20A.

But it should be kept in mind that if a constitution that cannot be amended again without a 2/3 majority is promulgated today, it could endanger the constitutional complexity another day. The vision and aspirations of the incumbent President may be pure. He may not be entertaining dictatorial goals, as alleged. But we must not be blind, that one day someone like Robert Mugabe or Idi Amin will not emerge. Therefore, it would be better to fertilize democracy without cutting the nose to spite the face when dealing with 19A.



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There’s NO statute of limitations on crimes against humanity

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by Kumar David

There is no statute of limitations for crimes against humanity in respect of place or time. That is, a judge in Argentina for example, can adjudicate on alleged crimes against humanity by the Franco dictatorship in Spain, or by Pinochet in Chile. Any liberal democratic country can act on its own or act in the UN Human Rights Council in respect, for example, of human rights violations by the Sri Lankan government during the period when Gotabaya Rajapaksa was Secretary of Defence. This is aside from the specific charges lying in US courts against Gotabaya for the murder of Lasantha Wickremesinghe. I am not sure whether the US courts will hold that Lasantha’s murder is a straightforward criminal offence or a crime against humanity. Either way social scorn makes it difficult for Gota or his family to live without opprobrium in the US. But for so long as antipathy to Tamils endures it may provide a temporary shelter. (Of course, it works the other way round as well).

Whoever controls the past controls the narrative of the future and determines a nation’s amnesty law. The identity of the killers who worked out of the Tripoli Market, the names of the officers who murdered the young Tamil men on the Trinco Beach and the identity of politician-officers who covered up for them is no secret. The press, the political classes and the relatives of the victims know it all. In this sense we can say that this is all a matter of public knowledge. Though it is obligatory that those responsible be prosecuted and punished we also know that this is unlikely. Though the global pressure to hold persons responsible for human rights violations to account, and though crimes against human rights have no statute of limitations in respect of place or time, nevertheless the mills of god grind slowly and one can only pray that they will grind exceedingly fine.

There is another disturbing example from Spain – the Amnesty Law enacted in 1977, two years after Franco’s death, which declared that members of the regime could not be prosecuted for crimes committed during the dictator’s reign or during the Spanish Civil War (1936-1939) which saw more than half a million deaths during Franco’s rise to power. The gist of it was, forget the past; make a fresh start with a clean slate. Torturers and murders from the Franco years were to be forgiven. I fear something similar is possible when assigning responsibility for the thousands of young men and women, mostly Tamils, held in prison under emergency laws for 10 to 20 years. It is certain that the Sri Lankan state will attempt to smuggle in provisions of this nature. The government of the day, of whichever rascals is in power, will attempt to pardon Lankan State officials who beat, tortured or murdered prisoners.

It is incumbent on every one of us to reject these attempts. It would be more useful if the Front-Line Socialists and the NPP/JVP activists associated with Aragalaya devote their efforts to preventing this instead of demanding a constitutionally superior extra-parliamentary status for themselves.

The United Nations as long ago as 2013 called on Spain to overturn the Amnesty Law that pardons crimes committed during the 36-year dictatorship of General Francisco Franco. Hundreds of thousands of died or disappeared during Spain’s civil war and subsequent dictatorship, but the crimes have been shielded under the Amnesty Law passed two years after Franco’s death. “It is regrettable the situation of impunity for cases of enforced disappearances that occurred during the civil war and the dictatorship. There is no ongoing effective criminal investigation nor any person convicted,” the UN said.

To move on to another but related topic of international accountability, I have long argued in these pages that globally, liberal opinion and democratic nations cannot and will not permit Sri Lanka to descend into anarchy and military dictatorship since it is one of the very few surviving post-colonial democracies. India is large, diverse and can look after itself. I am surprised not to have had any explicit support for this point of view in these pages and this is why I repeat it today. India too, for her own reasons, will not permit a military take-over or anarchy on her Southern littoral. For example, 2000 jawans were sacrificed to thwart Prabakharan and to keep JR in check. For all these reasons I am confident that both naked military dictatorship and an anarchist breakdown in Sri Lanka are unlikely. Outbursts of anarchy as in 1971 or 1989-90 will again be brought under control with international support. (I will take up relations with China anon).

To move on, what is the likely economic scenario in this country in say the 12 to 24 months ahead? The global context is uncertain. Most analysts predict a global recession, though a few analysts dispute its intensity. The global interest rate and inflation scenario is on the whole gloomy. I have written before about President Joe Biden’s populist-inflationary economic agenda and indicated that it will not let the rest of the world escape from the debt-trap it is mired in. The UK has suffered three prime ministers in the last year and PM Sunak seems at cross purposes with the Bank of England. Mitterrand has lost control of the domestic political narrative; Italy seems unable to form a government and Putin’s future is at stake. Very unusual times the like of which we have not seen since the 1920s and 30s. The background to all this is the prospect of a global economic recession or depression.

To be realistic then, we in Lanka have to expect a difficult two years ahead. Although the cuts demanded by the IMF have in fact already been passed on to the people in the form of steep price increases the following concerns remain. There is tension in respect of how demands on earnings derived from exports are allocated to different sectors – manufacturers, primary crop producers and financial services. And third there is the difficulty of persuading China to restructure Sri Lanka’s debt rather than simply rescheduling payments as it has insisted on doing up to now. The end result is that prudent strategic management of the economy is the priority. The President’s team, the Central Bank’s managers, and the private sector are not on the same page nor speak the same language. The point then is that there is no one boss and the President who should be exercising overall control does not have the team and the authority. He does not have people with the understanding, inclination and sobriety of how to pull it off. The game is likely to be amateurish and therefore messy. Predictions are fraught.

The last matter I wish to dwell on is the unexpected tensions that have arisen in the Chinese economic system; so serious that it has complicated the political future of President Xi Jinping. There are rumblings that his zero blowout Covid strategy has been a spectacular failure. Though he has secured a third term, confirmation of a life-presidency at the next party conference is unlikely. What are Xi’s achievements? Mao, though he fell psychologically in his later years, led the Chinese people to liberation from 1921-1949, Deng Xiaoping led the modernisation of the Chinese economy for nearly 30 years till his death in 1997.

Comparatively, what has Xi achieved? Just a cock-up of Covid policy to the point where his zero-tolerance approach lies in shambles, the economy has been damaged and young people are angry and revolting. All this may not be bad news for countries along the New Silk Road. Maybe China will be forced to accept a new and more generous approach to debt restructuring.

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The Ukraine War approaches second year

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18 Dead in Two Mass Shootings in California

by Vijaya Chandrasoma

The Russian aggression against Ukraine enters into its second year of warfare next month. A year of tragedy which has brought neither success nor failure, only untold suffering and the destruction of lives, property, economies and resources – on both sides. A Pyrrhic victory falsely claimed, by both aggressor and prey, as the warfare shows no signs of appeasement or resolution.

Putin’s argument for the illegal invasion of an independent neighbour centers on a fundamental issue: the legitimacy of the sovereignty of Ukraine. Ukraine is one of the 15 states which broke away from the Kremlin in 1991.

Putin has been the President of Russia since 1999, and has always bewailed the dissolution of the USSR. He has long expressed a worldview that the deep-seated unity among the Eastern Slavs, Russians, Belarusians and Ukrainians, with origins to the medieval Kyivan Rus Commonwealth, should share a common political destiny. He claims that Ukraine and Belarus are integral parts of the Russian Federation, a belief that is contemptuously rejected by sovereign nations like Ukraine.

Putin is also of the opinion that NATO is using the proud and jealous independence of these nations, combined with the continuing expansion of the Treaty in Europe, as part of an “anti-Russia” project.The annexation of Ukraine, which Putin thought would be achieved in a few weeks, with Russian forces being hailed as “liberators”, is eerily similar to George W. Bush’s illegal US invasion of Iraq in 2003.

That was another violent misadventure on contrived evidence, that Iraq was responsible for the terrorist attack on the twin towers on 9/11. In reality, it was a cynical act of aggression to protect American self-interests and oil resources in Iraq. An illegal war which ended in 2011, with the Americans retreating. Not as liberators, but having caused mass destruction to people, property and infrastructure, quaintly described as collateral damage, leaving Iraq mired in internecine violence. American forces were withdrawn by President Obama in 2011, as the Iraqi invasion was fast approaching the tragic consequences of another Vietnam.

Ukraine’s resistance to Russian aggression has been nothing short of heroic, under the brave leadership of President Zelensky. With unprecedented moral and military support of NATO, especially Germany and the USA, Ukrainians have shown the determination and courage to stay the course, to force the aggressor to retreat with their tails between their legs, and so maintain the sovereignty of their nation.

Even if Russia succeeds in the illegal annexation of Ukraine, Putin will not have the resources necessary to retain control against a hostile, brave and independent people for any appreciable length of time. Trillions of dollars have already been expended on “collateral damage” on both sides, threatening global recession, with exponential increases in poverty and privation.

The Ukraine war is the latest of 500+ years of wars, genocides, purges, rebellions and religious conflict, which have claimed over 500 million lives, perhaps more than half the population of the planet during their times. At least 50% of these lives have been lost on religious wars, including the Crusades. Murder and mayhem committed on the sacred names of the leaders and Gods who invariably preach peace, compassion and non-violence. As comedian/satirist George Carlin said, “More people have been killed in the name of God than for any other reason”.

The military-industrial complex – international networks of individuals, associations and institutions involved in the production of weapons and military technologies, have made the cynical comment that they need a “good” war – not just a skirmish here, an insurrection there, but a catastrophic international war, at least every decade. Their aim is to financially “persuade” the politicians with the power to marshal political support on increased national military spending, to keep the economies of their respective nations humming, and the profits of international arms manufacturers safely ensconced in the Cayman Islands. They have succeeded beyond the wildest of their dreams.

The freedom to the manufacture of military style spending for civilian use in the United States is jealously guarded by the National Rifle Association. The NRA relies on a false interpretation of the Second Amendment of the US Constitution, that it provides a mandate for every American over 18 years of age to buy lethal weapons, even military-style guns, with no legal restriction.

I have written extensively on the epidemic of gun violence in the USA in the past, and will only reiterate the statement made by former Chief Justice of the Supreme Court, Warren Burger, nominated by Republican President Richard Nixon in 1969. He stated in 1991 that the “gun lobby’s interpretation of the Second Amendment is one of the greatest pieces of fraud, I repeat the word fraud, on the American people by special interest groups that I have ever seen in my lifetime. The real purpose of the Second Amendment was to ensure that state armies – the militia – would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires”.

The current reality in the USA is that anyone over 18 years of age can stop in at the neighbourhood gun shop or a Walmart’s, and purchase a military style AK 15, or any such lethal weapon. Over the counter, no questions asked. This purchase, made for whatever immediate or future reason, emanates an intensely gratifying sensation of an increase in the size of the male buyer’s penis. I have no information on how the purchase of such weaponry would titillate the sensations of a woman. Perhaps the gun crazy, far right Republican congresswomen like Marjorie Taylor Greene and Lauren Boebert will be better able to describe the satisfaction they feel when they brandish these powerful weapons.

Just last week, an Asian male, 72-year-years old, shot 42 rounds, killing at least 11 people and wounding many more, some critically, in a few minutes of mayhem in a dance studio in Monterey Park, Los Angeles, California, as Asians were joyfully celebrating the Chinese New Year.

The “containment” of this mass shooting is being hailed as a triumph for law enforcement, as two of its officers, assisted by a brave young man, confronted and disarmed the shooter before he went on his second rampage of shooting, forcing the shooter to take his own life.

Brandon Tsay, a 26-year-old Asian man, is credited with preventing further violence by subduing the gunman before he could shoot more people. A true hero who admitted to fear when the gunman pointed the gun at him, fear that did not prevent him from tacking and disarming him. Nelson Mandela once said: “I learned that courage was not the absence of fear but the triumph over it. The brave man is not he who does not feel afraid, but he who conquers that fear”. Brandon Tsay admitted to such fear but still acted within seconds to save lives. He is indeed such a brave man.

A second mass shooting, described as “workplace violence” at a mushroom farm in Half Moon Bay, Northern California, was committed the day after the Monterey Park massacre. At least seven people were killed, with another in critical condition. The suspect, an Asian man 67-years-old, is in custody. It is believed that he acted on his own, his motivation is still unknown.Two mass shootings on consecutive days, in the state with the most stringent gun regulations in the country.

Depending on band-aid remedies and occasional acts of heroism in a continuing plague of mass shootings throughout the country in no way reduces the tragedies caused by this fatal disease. Effective cures are available in the form of increased gun control and mental health measures, which would certainly alleviate the severity of the disease. Measures, approved by 80% of Americans of all political stripe, but continually and criminally withheld by the political power of the National Rifle Association (NRA), with the help of its bought and paid for politicians.

Such regulations are in force in every other developed nation, which have a mere per-capita fraction of mass shootings and deaths, tragedies the USA endures with increasing frequency.

Reminds me of the pre-1970 advertisements of the tobacco lobby, who, with access to incontrovertible evidence that smoking causes cancer, stated that cigarettes do not cause cancer. Besides, smoking makes you look cool. The gun lobby parrots this famous statement that guns do not kill people, people kill people. And guns also make you look cool and highlights your manhood.

Other instances of gun violence caused by criminal negligence were recently and spectacularly exhibited in January, at Newport, Virginia and Beech Grove, Indiana. These were not classified as “mass shootings”, but gave some indication that gun violence will keep escalating, unless immediate restrictive steps are taken.

In early January, a six-year-old boy pulled out a handgun from his backpack and shot at his teacher. The teacher, 26-years-old, threw up her hand but the bullet passed through it and hit her in the chest. Though badly injured, she was able to scramble her other 20 students into the safety of the hallway. She remains in critical but stable condition.

In Beech Grove, Indiana, a neighbour in an apartment complex noticed a four-year old toddler roaming around, “on patrol”, waving a loaded automatic pistol and pulling at the trigger. The child had taken the gun that had been lying on his father’s unsecured desk. The neighbour called the police, who took the gun away from the child. Thankfully, no one was hurt.

Looks like the minimum age for access to guns has been lowered to include toddlers in the United States. Our children are becoming constantly exposed to, and comfortable with, easy access to guns and their uses. Perhaps in 20 years a gun will be considered to be as essential a part of the everyday possessions of the younger generation as a smart phone is today. A terrifying thought.

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Law student days in London and Lincoln’s Inn

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Excerpted from The Memoirs of a Cabinet Secretary by BP Peiris

(Continued from last week)

One day, in the Library, J. B. C. Rodrigo was reading Pollock on torts. A ‘tort’ in law is a civil wrong. There was, next to him a hoary, old gentleman, making weird noises in his breathing which was distracting Rod’s attention. He went across to another table and asked someone who the old buffoon was, to be told “Good Lord, don’t you know? That’s Sir Frederic Pollock”. Our law books are always styled with the author’s name first. For example, there is ‘Anson on the Crown’, ‘Parry on Contracts’ and ‘Odgers on Libel and Slander’. A girl friend of mine, seeing the last named book with me, asked me ‘What’s an odger?’

I passed my Roman Law in Class III within six weeks of my joining the Inn and was very proud of it and cabled my father to give him the good news. I had a snorter from him by ordinary mail. There was no hurry, he said, to pass these examinations, all the papers had to be taken together. The Director of Legal studies of the Council of Legal Education informed me that I had got a good second class mark in the Common Law and Equity papers and a very good second class mark in the General Paper. In the Evidence and Civil Procedure papers and the paper on Roman-Dutch Law I had got a first class mark.

By a strange turn of events or an unusual stroke of luck, call it what you like, I was the only Ceylonese student to pass each of the principal law examinations which I sat. Seven of us sat the London University Intermediate Laws and six failed; nine of us sat the LL. B. and eight failed; twelve sat the Bar Final and eleven failed! I have before me, the Bar Final Examination results of the Hilary Examination, 1932: examined 94, passed 53. There was one in Class I (not from Lincoln’s Inn). I was placed in Class 11, fourth in order of merit, and I was just beaten by a silver-haired old lady who sat next to me during the examination.

Now came the day of our call to the Bar. The Juniors who had passed the Final and were about to be ‘called’ no longer sat at the students’ table. We had a table to ourselves and, as all my friends had failed the Final, I was the only Ceylonese at the table. At Lincoln’s Inn, Call is always after dinner. The different Inns have different customs in this matter.

Our full names were shouted by an usher, we walked up to the dais as each name was called, the Treasurer on the dais bowed three times, each bow being returned by the student, the Treasurer shook hands and then said “By the authority and on behalf of the Masters of the Bench I publish Mr… a Barrister of this Honourable Society” Three more bows on each side and we were back at our table, each one a Barrister-at-law, awaiting our orders.

When the ceremony was over, barristers and students, who had been dining, left. The Benchers left for their private chamber. The Juniors remained. After a short time, the usher came and summoned us into this private, red-carpeted room. There were the Benchers, seated round the table, with vacant seats between them. A Junior sat with a Bencher on either side of him. They rose as we entered. There were more drinks, and cigars and cigarettes served in ancient silver boxes.

They were great gentlemen and great hosts. I sat between Lord Buckmaster and a well-known King’s Counsel, whose name I have forgotten. Several times the Peer shouted to the waiter to “Fill the gentleman’s glass”. I reluctantly kept pace hoping that I would not disgrace the Honourable Society by ending up as a casualty like my friend an Grand Night.

This reminds me of a poem by Benjamin H. Burt:

One evening in October,

When I was far from sober

And dragging home a load with manly pride,

My feet began to stutter

So I laid down in the gutter

And a pig came up and parked right by my side.

Then I warbled “It’s fair weather When good fellows get together”

Till a lady passing by was heard to say

“You can tell a man who boozes By the company he chooses.”

Then the pig got up and slowly walked away.

The Treasurer, Lord Blanesborough, made a speech congratulating the Juniors and telling them a few things about professional ethics, the nobility of the profession and the dignity of the bar. The person who replied was the student, if any, who had passed in Class I. There was no one in my year. The task, under the rules, therefore fell on the student who, according to seniority, was the oldest by date of admission. The honour fell to someone who said in his speech that he was old vintage – he was enrolled in 1914 and was called in 1932.

At the time I was called, there were very few in Ceylon who had passed in Class I and I valued my Class II high. As far as I know, those who had passed in Class I were F. A. Hayley, A. E. Keuneman, D. S. Jayawickrama and Cyril E. S. Pereira.

After the speeches on Call Night, the Benchers retired arm in arm, and the Juniors were left to help themselves to more drinks and to bring in friends as the guests of the Inn. Each was allowed to have two guests. Then came the butler with a muslin bag for the only tip which one was required to give throughout one’s stay at the Inn, and each Junior dropped a five pound note in it.

At Lincoln’s Inn, no one stands up for the toast of the king. Tradition has it that King Charles II who was entertained at Lincoln’s Inn in 1671 dined so well that the King gave his permission for the Royal Toast to be drunk in this manner. And so it has been ever since.

It only remained to go the next day to the King’s Bench Division and sign the Roll of Barristers. My certificate states that I had paid all dues, that my deportment at the Inn “hath” been proper and that I had been called to the Outer Barrister as opposed to an Inner Barrister, one who sits at the inner Bar, that is, a Queen’s Counsel.

The lunches at the Inn were delightful and cheap. Lunch was served in the hall on all days on which the Courts were sitting. Judges, Barristers in their wigs and gowns, students all used to sit on the benches irrespective of status and an animated conversation went round the table over the meal. No bill was brought, but after the meal, one was expected to go to the butler who sat at a high table at the entrance to the hall and tell him what one had ordered and eaten. One was then told the amount due. Everyone was placed on trust and that trust was never misplaced.

Before finishing with Lincoln’s Inn, I take the liberty of reproducing a very interesting and humorous editorial from the London Times of May 1931:

Polygamy in Lincoln’s Inn

The Inns of Court, as befits their great age and greater dignity, take particular pains about the character of those whom they allow to reside inside their gates; and as the Courts of Chancery claim a traditional pre-eminence over the Courts of Common Law as homes of the most austere rectitude, where rhetoric is never heard or is heard in tight-lipped silence, so is no Inn more careful to maintain the standard of impeccability among its tenants than Lincoln’s Inn. Common lawyers expect to jostle and mingle with all manner of men, but Chancery lawyers who take neither pride nor pleasure in the rough and tumble, are not to be offered any but the hand-picked company of highly necessary solicitors, the more thoughtful and statistical kind of politician and the steadier sort of journalist.

Into this company have now intruded individuals of a different stamp, whose general air of insolvency, combined with an addiction to the pond and to matrimonial irregularities, suggest that they have mistaken the Inn for the neighbouring Courts of Bankruptcy or Probate, Admiralty and Divorce. The Inn allows married couples, and smiles indulgently at the spectacle of children playing on its lawns. The law has always recognized marriage and its customary consequence as among the most valuable of the institutions which make the legal profession a necessity.

The litigation in Chancery is so peculiarly dependent on the family and the family quarrels, that the noise of children quarreling, so painful to many other men of affairs, is sweet prophetic music to the Chancery silk. But the three drakes and two ducks who have started to live in New Square an unseemly life of indolence and pleasure, with an absence of reticence that a Hollywood publicity man might envy, are carrying things altogether too far.

When a duck and a drake first appeared and settled in the pond at New Square and reared a family, everyone wished them well and the only anxiety was how to retain so model a couple as an encouragement to everyone else. They flew away, but another reappeared this year, and it looked as if the kindly offices of the Inn in making its pond comfortable have not been in vain, and that the lawyers were earning a good name among the better class of duck.

But the correspondent who has followed events for this journal has had an increasingly disreputable tale to unfold. The drake brought a second duck openly to the pond in full view of the King’s Proctor, and the appearance of two more drakes has now given the pond an example of the type of promiscuous modern household which has sometimes been described in fiction but which respectable people have liked to think was exaggerated.

It is only three days since this last development, but already the trouble which any experienced solicitor could have predicted seems to be breaking out, and the King’s peace is endangered where it ought to be most secure. There is an excuse, and it is the excuse common in such entangling alliances – the excuse of unhappiness. Four out of the first wife’s seven eggs were stolen, one by one, by rats, and the substitutes provided by the Inn never seemed the same.

If the feathered creation offends against the spirit of much of our legislation, at least it is guiltless of the kidnapping and rapine which makes the name of rat enjoy so little favour. But, though the guardians of the law must feel a little outraged that robbery can take place under their very noses like this, there is a certain consolation for legal men in the goings on by the pond. “That”, the lawyer can exclaim, “is nature for you, in all her notorious disrepute”.

So ruminating, he can turn away his gaze and, thinking with pride what the police mean and the judge have managed to make of human kind, and how seldom they steal each other’s offspring, he can settle down with all the clearer conscience to the preparation of his bills of costs.”

This was followed by a letter to the Editor…

The Ducks of Lincoln’s Inn Sir,

We are instructed by our clients, who, by the courtesy of the Benchers of Lincoln’s Inn, are occupying the premises known as “The pond”, to inform you that the other ladies and gentlemen referred to in your fourth leader of today were friends who sought a good address for census night, and some have stayed on to enjoy the hospitality of the beadle. There is no ground whatever for any suggestion of scandal.

We are directed to inform you that our clients require you to withdraw the imputation contained in your fourth leader. Otherwise they will take steps.

Yours faithfully Quackett and Quackett

Concurrently with my admission to Lincoln’s Inn, I entered as I have said, University College, London. The University Professors and lecturers were on the academic side, whereas the Bar lecturers, I was told, emphasized the practical or the court side of the law. Although I was enrolled at University College, lectures were also given at King’s College and at the London School of Economics, and the lecture hours were so fixed that, on the conclusion of one lecture, the students had time to walk to the other College for the next lecture.

I had many friends among the students. Amongst them was a Japanese professor of law who just didn’t and couldn’t understand what English Equity was. He was a most lovable man, fond of whisky. Before his departure for Tokyo, I presented him with a copy of Snell’s Equity.

I had the most amazing collection of professors and lecturers: amazing in the sense that most of them had an amazing memory, lecturing for an hour without a note before them and referring to leading cases by volume and page. There was Professor Parry lecturing on Contracts and Professor Lauterpacht on International law. He carried no notes with him but referred to the sections of the four treaties entered into after the first world war as if the treaties were before him.

There was Wolff who spoke on Logic, which was one of my sidelines. There was a very young and good-looking lecturer, very shabbily dressed, the only thing clean about him being his collar, who lectured to a class of about 60 students on the Conflict of Laws. The lectures were given on the third floor of the London School of Economics. The floor of the lecture room was boarded.

One day, the lecturer arrived in well-creased striped trousers, a smartly tailored black coat, wing collar, bow tie, etc. He looked a bridegroom. The entire class just gazed at the change in the man and 60 pairs of feet were going on the boarded floor creating a violent disturbance. Said the lecturer “Ladies and Gentlemen, I propose to proceed with my lecture. Please use your heads instead of your feet” and the noise subsided.

There was Professor Harold Laski about whom it would be impertinent for me to write. He is too well known in the world of politics and economics to need an introduction from me.

Special mention must be made of Professor Smith, the most eccentric man I ever met. I was following a course for the LL. M. on the Diplomatic History of the Nile, the Scheldt, the Elbe and the Danube. It happened that I was the only student following these lectures. Into a cold, large room in wintertime the Professor walked a minute before the lecture was due to start and asked me “You the only one?”

I said I did not know and that no one else had come. He said “Oh. Come up to my room. I have a fire there.”

Up in his room, when I had removed my overcoat, he said “You may smoke”. I took my pipe, and he his. Then he addressed me in these terms. “My lectures are from 6. 30 to 8 p.m. You will come at 6.30, not a minute earlier, not a minute late. You will knock on the door but you needn’t wait for an answer. You will leave at 8, not a minute early and not a minute late. You don’t need my permission.”

I was terrified with all this introduction, but discovered later that he was one of the kindliest of men. I was outside his door for the next day’s lecture ten minutes before time. At 6.30 sharp, I knocked and entered, and he had started his lecture to his only pupil, pointing with the stem of his pipe at the source of the Nile on a huge map which was hanging on the wall. He used no notes and kept puffing at his pipe, pacing up and down his book-lined room while he talked.

At one minute to 8 p.m. I was collecting my overcoat and books. At about one second to 8, my hand was on the doorknob, about to take myself out, when I heard him saying “and from there we’ll continue next time”. It was the same each week. As I entered at 6.30 “As I was saying last time… etc.” talk, talk talk till 8 p.m. And then “and from there we’ll continue next time.” A marvellous man with a marvellous brain, but an utter eccentric.

With the drop in rubber prices in 1932, I decided to return home and in the few months left to me before I sailed, to study Income Tax Law. I therefore went to my Professor and asked him to excuse me from attending his lectures. He said (remember I was the only student) “Oh! It doesn’t matter. I am paid to deliver these lectures and I deliver them whether you are here or not.”

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