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Constitution making:

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A layman’s view

by ROHANA R. WASALA

‘At least since Rousseau’s Social Contract and the end of the divine right of kings, the state has been seen as party to a contract with the people – a contract to guarantee or supply the necessary order in society. Without the state’s soldiers, police and the apparatus of control, we are told, gangs or brigands would take over our streets. Extortion, rape, robbery and murder would rip away the last threads of the “thin veneer of civilization.”’ – Alvin Toffler, Powershift, 1990.

The late Alvin Toffler (American writer, journalist, educator, and businessman) says this while reflecting on the nature of power as one of the most basic social phenomena. ‘Power……implies a world that combines both chance, necessity, chaos and order.’ According to him, we humans ‘share an irrepressible, biologically rooted craving for a modicum of order in our daily lives, along with a hunger for novelty. It is the need for order that provides the main justification for the very existence of government’.

Sri Lankans are currently experiencing, in the raw, a taste of the evils that Toffler says the absence of order would breed, which makes constitution making interesting for them. But what is a constitution? Google offers a simple definition of the term: ‘a body of fundamental principles or established precedents according to which a state or other organization is acknowledged to be governed’.

Now, Professor Jayadeva Uyangoda (‘A very wrong approach to Constitution-making’/The Island/September 29, 2020) opines that the proposed 20A has ‘several major defects’. One key fault, according to him, is that the approach adopted for drafting the amendment is ‘very wrong’. JU offers a number of reasons to explain this alleged wrongness of the ‘approach’: the ‘sponsors and framers’ (I suppose the phrase means the politicians and the legal experts behind the drafting of 20A) refuse to learn ‘constructive lessons from past constitutional reform experiments’, but they have learned some ‘partisan, narrow-minded, politically short-sighted ones’. What he probably means by this becomes clear (not clear enough though) in the rest of his article, but it is doubtful whether his sense of right and wrong in the context is shared by many outside the now diminished anti-nationalist coterie, who occupied the parliament for four and a half years and hexed it with the controversial 19A.

It is not necessary to read further into JU’s article to be able to infer where his own inexcusable biases lie. He is obviously in favour of 13A and 19A forced on the nation from outside, and is against the present government’s sincere effort to remove the obstacles placed on its path by the departing yahapalanaya through its ill-conceived constitutional mixed bag that is 19A, where what is bad is by choice, and what is good is by chance. This is not to argue that the new 20A is perfect in comparison. I share many objections raised in different quarters against the proposed 20A, but I believe that the moot points will be satisfactorily sorted out by the present leaders before they manage to get it through parliament.

The Opposition critics of 20A quite well know that it is, after all, only a stopgap measure to clear the way for the unhindered implementation of the government’s development plans. The government will introduce a completely new Constitution within a year or two. JU’s advice as a political scientist will come in handy then.

The proposed 20A is not an arbitrary piece of legislation that the government is introducing behind the back of the people. There is considerable opposition to some of its articles even within the government ranks. Unlike in the case of 19A, the passage of 20A will be a democratic, above-board affair. The Minister of Justice on behalf of the government issued it as a draft bill for public view and review in all three languages on September 2, 2020. The document clearly specifies what is to be amended, repealed, or replaced. The yahapalana constitutional fraud in the form of 19A is not being repeated. Over this four-week period, some thirty-nine petitions have been filed challenging 20A’s constitutionality before the Supreme Court and they were being heard for the third day (October 2) by a bench of five judges, at the time of writing. The government has already declared that it will abide by the court decision by duly adjusting its response to it. JU’s alarms and warnings are uncalled for.

By the phrase ‘past constitutional reform experiments’, JU must be referring to the making of the first and second republican Constitutions (of 1972 and 1978 respectively) and the substantial number of opportune as well as ad hoc amendments introduced by successive governments since, some of them questionable and controversial, where 19A stands in a class by itself as the best example of the worst type of constitutional reform introduced in Sri Lanka to date. What prompts him to describe them as experiments is probably the fact that he is a political scientist with his indispensable toolkit of academic analysis. My interest as a lay citizen, modestly informed of the original construction and subsequent reform of a constitution, is concerned with how good it is going to be for the largest number of the people of the country, as its supreme law, in the context of the more or less stable social and political realities that are prevailing.

As a Constitution is not holy writ, it is open to appropriate amendments from time to time, in compliance with the will of the people, as and when these realities change; a constitution specifies the legal way to reform or replace it as the case may be. The current 1978 republican constitution as amended up to 2015 (Chapter XII/Articles 82-84) specifies the procedure for amending or repealing the constitution. The people whose memory of the yahapalana misadventure is still fresh are anxiously aware of the necessity of passing the 20A.

Contrary to what JU asserts, the political leaders and the legal luminaries responsible for drafting the proposed 20A, have not forgotten the constructive lessons left by their respective predecessors in the form of Sirimavo Bandaranaike and Colvin R. de Silva (1972), and J.R. Jayewardene and J.A. Wilson (1978). Both Bandaranaike and Jayewardene cared about the country, the people, and the culture. Both displayed firm leadership in governing, and a high level of intellect in statecraft. Sirimavo Bandaranaike had her native wit, and Jayewardene possessed a good education. In April 1971, Bandaranaike nipped the JVP terrorism in the bud, not without some violence, though, that she never intended. Opposition leader Jayewardene approved of her actions, saying, ‘yes, a government must rule’. For her courage, firmness, and composure, she was described then as the only male in her cabinet. The contribution of the inspiration provided by Bandaranaike’s political leadership to the making of the first Republican Constitution, the principal architect of which was de Silva, must have been immense and indispensable. Later, hadn’t Jayewardene got Wilson to write the powerful institution of executive presidency into the second republican constitution (1978) as the main anchor to the unitary state, the sovereign Sri Lankan republic that Bandaranaike and de Silva created for the people would have disintegrated and drifted into wilderness and oblivion by now.

Back to the point.

The second alleged defect that JU asserts, without any evidence to support his opinion, is that ‘the framers of the 20A are not motivated by the broader democratic interests of all Sri Lankan people, but the ‘political self-interest’ (of someone or group that JU avoids mentioning). A third defect, JU identifies the Amendment’s supposed lack of ‘a democratic formative framework relevant to our society and its own progressive-modernist legacies of constitutionalism .. (together with the fact that).. it builds itself on one or two dreadful and destructive experiments of constitution-making in the recent past’. This is as close to clear as I can get in interpreting JU here. To illustrate the ‘one or two dreadful and destructive experiments of constitution-making in the recent past’, I think, he draws upon what he, assuming a kind of arbitrary academic license, calls the ‘relatively long history of unmaking, making, and amending constitutions’ that includes the 1972 and 1978 exercises on the one hand, and the 1978C and 18A on the other. JU’s adjectives ‘dreadful and destructive’ could be justifiably applied to the passage of 19A and other such ‘experiments’ in constitutional reform, as contained, for example, in Chapter IV of the Constitution of the Democratic Socialist Republic of Sri Lanka (As amended up to 15th May 2015) (Revised Edition – 2015) issued by the Parliamentary Secretariat. Chapter IV – Language covers Articles 18-25. One is bewildered by what the crafty, ill-meaning, ‘sponsors and framers’ have from time to time done to degrade Sinhala in its official status with the uncomprehending concurrence of some self-seeking Sinhala MPs in the House. This, of course, would be an iconic piece of constitution-making for a theorist with one’s head in the clouds.

The practical reality is that the operative meaning of any Article (whether this is legally contested or not) is implicitly embodied in the English text (though, according to the present constitution Sinhala and Tamil are both official languages, while English is the link language.). So, it is vitally important to translate the draft document that is the Constitution into precise, unambiguous, formal and legally acceptable and uncontestable Sinhala and Tamil. I detected a couple of stark discrepancies between the original English draft and the Sinhala translation (not relating to the particular context – Chapter IV – mentioned above) when I made a very random comparison between the two versions while researching an article at the time, but I don’t remember whether I dwelt on the subject long enough for it to be taken notice of by the reader as something important, though beyond the central scope of that article. Apart from this, those sufficiently informed did not fail to see how some Tamil lawmakers wanted to openly hoodwink the Sinhalas with the word ‘akeeya’ stripped of its intended original meaning of unitary, but falsely insisting that the English term ‘unitary’ was not its equivalent and was not suitable as a translation, and started talking about an ‘Orumiththa Nadu’, reminiscent of Tamil Nadu. How the question which version should prevail in case of an incongruence between the Sinhala and Tamil texts should be resolved, I can’t remember having been discussed. But the last item (58) of the published draft of 20A runs: ‘In the event of any inconsistency between the Sinhala and Tamil texts of this Act, the Sinhala text shall prevail.’

Having outlined the lessons to be learnt from constitution-making, -unmaking, and -reforming exercises up to 18A, JU moves on to the many lessons that he thinks may be drawn from the ‘much maligned’ 19A. He identifies four key lessons. The first lesson he mentions is that wide public consultation is useful, and helps ‘improve the level of democratic health in the polity’. I cannot agree with him that this was true about the drafting of 19A. It was claimed that the constitutional experts including Jayampathy Wickremaratne, presumably its principal drafter, toured the country meeting with individuals and representatives of many minority civil groups during a short period of two or three months. They had to rush the job, they said, as they were in a hurry to finish it within a stipulated time frame. About two thousand people were consulted nevertheless, they claimed. It was obvious that they roamed the country making it their main aim to pay more attention to the minorities that they had decided were discriminated against by the majority Sinhalese, as they wanted the meddling foreign powers to believe in order to justify their interventionist excesses in the internal and external politics of the country. Meanwhile they paid only symbolic attention to the Sinhalese majority. Wickremaratne, the chief architect of the fraudulent document, is now rumoured/reported to have found or is seeking political asylum in Australia or somewhere (though there is absolutely no possibility of his being targeted for persecution in Sri Lanka). He has reportedly admitted that 19A is problematic.

The second lesson that JU asserts he can learn from the making of 19A is that it is ‘better to build consensus across all political parties in Parliament for a major amendment or a new Constitution’. If he means that 19A set a negative example of that principle, then he has a case. But in actuality, 19A destroyed the burgeoning interparty consensus in Parliament and the growing intercommunal goodwill in the broader society that the MR government achieved in the wake of victory over terrorism. It was because of this that ‘for partisan political reasons, some might later withdraw from the consensus’ as JU laments.

I agree with JU on the third lesson he derives from his seemingly iconic amendment, which is that ‘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’. Yes, in other words, 19A is a very good illustration of a very bad constitutional amendment.

The fourth lesson that 19A offers, according to JU, is that ‘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’. In my opinion, this is what the pre-2015 government achieved. 19A, by dismantling it, demonstrated how ill the nation fared in the absence of such unwavering, innovative, and democratic leadership. Then, JU starts chewing his own tail, by suggesting a ‘paradoxical’ reason: ‘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 to gain easy currency and public legitimacy’. Frankly, I can’t make head or tail of this, but it makes me wonder whether JU is trying to make light of the very real persecution of the majority community that is hardly recognized by most mainstream politicians, who feel obliged to find refuge behind political correctness.

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Opinion

Amend Cabinet decision on new Rajagiriya – Nawala Canal bridge

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The Cabinet, at its meeting held on 09.11.2020 granted approval for the construction of a new bridge across the Rajagiriya-Nawala Canal (Kolonnawa Canal), connecting Angampitiya Road, at Ethul kotte, and School Lane, at Nawala.

As a resident of Nawala, I would like to make two proposals in this regard. One is to reconsider the suitability of the proposed link between School Lane and Angampitiya Road to connect Nawala with Ethul Kotte. The second is to make an additional link between Narahenpita and Nawala, by constructing a new bridge across the Kinda Canal, which flows past the Wall-Tile Showroom on the Nawala-Narahenpita Road and the McDonald’s outlet at Rajagiriya. This will provide a direct access from Narahenpita to Ethul Kotte, and at the same time avoiding congestion on Kirimandala Mawatha and Parliament Road, during peak hours.

The decision to construct a bridge, linking Nawala and Ethul Kotte, is commendable, but the selection of the site for the bridge needs reconsideration. Once Ethul Kotte is linked with Nawala, through Angampitiya Road, and School Lane, one would expect a substantial increase in the volume of traffic on these two roads. Located on School Lane is the Janadhipathi Balika Vidyalaya, a popular girls’ school in the area. Even at present, the area around School Lane has heavy traffic comprising mostly school vans and other vehicles bringing children to and from this school, in the mornings and afternoons. Linking School Lane with Ethul Kotte will make this traffic situation worse, causing congestion.

A better option is to connect Ethul Kotte with Nawala, by constructing a bridge, linking New Jayaweera Mawatha in Ethul Kotte, with Koswatta Road, in Nawala. A by-lane, branching off from the Koswatta Road leading up to the canal, at an appropriate location, could be used for this purpose. On this link, only a short distance of roadway about 250 m, needs to be developed, whereas the School Lane extension needs development of at least 700 m of roadway. Earlier, motorists used Koswatta Road as a shortcut to access Parliament Road. Now, turning right, at the Parliament Road junction, is not permitted, and hence, there isn’t much traffic on this road at present.

One advantage of extending the Koswatta Road, to Ethul Kotte is that it could be linked in the other direction, with Muhandiram Dabare Mawatha, on the Narahenpita side, providing a direct route for motorists coming along Thimbirigasyaya Road to go to Ethul Kotte. With this link, it will be possible for traffic to avoid both Parliament Road and Chandra de Silva Mawatha, Nugegoda, the only two access roads to Kotte, from Colombo, available at present.

To complete this access, it is necessary to construct a bridge across Kinda Canal, linking Galpotta Road with Muhandiram Dabare Mawatha, after extending both roadways up to the canal. This area is still not developed, except for a reservation made for a playground on the Nawala side. A new roadway, which is only about half a km distance, is necessary, and this could be built without any problem linking these two roadways. Galpotta Road could be linked with Koswatta Road via Ratanajothi Mawatha, which crosses the Rajagiriya–Nawala Road, at Koswatta Junction.

The construction of these two new bridges, one across Kolonnawa Canal and the other across Kinda Canal, will provide a direct route from Colombo to Ethul Kotte, via Muhandiram Dabare Mawatha, Galpotta Road, Koswatta Road and New Jayaweera Mawatha. This link will reduce congestion, at present experienced on Kirimandala Road and Parliament Road.

 

Dr JANAKA RATNASIRI

Nawala

 

 

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Opinion

A tribute to my mother-in-law

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Appreciation

My mother-in-law, Mandrani Gunasekera, nee Malwatta, passed away peacefully in our home a few weeks ago. The funeral arrangements were complicated by the ongoing Covid-19 pandemic situation, and the resultant weekend curfew in Colombo.

It is a privilege for me to reflect on my mother-in-law and her role in our lives. Vocationally, she was a practitioner of one of the noblest professions on earth, that of being a teacher, with the responsibility of educating and molding young lives. First in the public-school system, then overseas, and finally in Colombo’s leading international schools. As someone who topped her batch at the Peradeniya University, teaching was an unusual and perhaps unglamourous choice, but it demonstrated her commitment to the service of others.

In private life, she, was a mother to two daughters, one of whom is my wife, and their strength of character are a tribute to her. Her four grandchildren, including my two sons, are, I am sure, left in no doubt, that their mothers were raised in the home of a teacher, with a strong commitment to both education and discipline. I saw first-hand, that my mum-in- law, was an enabler and facilitator, guiding and molding her family. Her eldest grand-daughter, Thisuni Welihinde’s wedding late last year, was a milestone for her and we were never sure who was more excited, the bride or her grandmother.

To me, she was always “Ammi” and having lost my own mother when I was very young, I was determined to treat my wife’s mother, as I would my own. After my father- in- law’s death, a decade ago, it was a joy to care for my mother-in- law, in our home. Ammi was retired and lived a life of leisure. Which was a good counter balance to our own lives, which always seemed to be so hectic and rushed. I also learned from my mother -in-law, that being effective did not come from being prominent.

Ammi was also regular at Church, every Sunday, and was also an active member of a mid-week ladies Bible study, and prayer group, who were also her group of friends. They always ended their meetings, with brunch if not lunch. It was special joy that we were able to celebrate her 80th birthday with a “surprise party” at home, with her friends, about six weeks before her passing.

Ammi enjoyed the simple joys of life, and of our home, whether it was meal times, the constant chatter and boisterous behaviour of her two teenage grandsons, our weekend activities or family vacations to most of which she accompanied us. She was also an avid rugby fan, especially of Royal College rugby, since her brother had captained Royal and now her grandson was playing. In fact, she used to attend many matches and the 75th Bradby encounter last year, held in the shadow of the Easter Sunday bomb attacks, was her last, to witness her brother honoured on the field with other past captains and her grandson take the field, as a junior player.

This strange Covid-19 pandemic year, and its unprecedented lockdown ,enabled us to spend lots of time together, as family. Our lockdown daily routine, which included lots of sleep and rest, was centered on the daily family lunch, either preceded, or followed by family prayer. Ammi became the most committed and enthusiastic participant in our family mid-day gatherings. It was a great blessing, in disguise, that enabled us to spend the last few months, with noting much else to do, but enjoy each other’s company. While we miss her, we have the hope that she is with our Lord Jesus Christ. Her favourite Bible scripture in Psalm 91, states “He who dwells in the shelter of the Most High abides under the shadow of the Almighty …. and with long life I will satisfy him and show him, My salvation”.

 

By Harim Peiris

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Opinion

The Benefits of Homeschooling

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COVID-19 has changed our normal activities. What we were used to doing in 2019, is no longer a routine in 2020. In the midst of this pandemic the schools were closed down, and the decision to reopen schools by the Sri Lankan government and the trade unions speaking against it, made me ponder on an alternative.

Education in developing countries have often been a sensitive topic, Parents would leave no stone unturned to put their child to a ‘Big School’. How many of the classrooms in ‘Big Schools’ are capable of making seating arrangements by keeping a distance of one meter in accordance with the COVID-19 regulations?

Online Teaching has been introduced as an alternative, but isn’t there something better than that?

This would be the best time to introduce Homeschooling.

Homeschooling is where parents and guardians teach and groom their children. There are many parents capable of handling children and providing a comfortable atmosphere at home for a child to grow up and learn; there are parents who are skilled in particular trades and crafts, and teaching these to their children at a younger age gives the child an opportunity to be a skilled individual.

Several decades back the role of a Governess played an important role in upbringing children in Sri Lankan households. Many would have read about Helen Keller, a deaf and blind student who went on to be a graduate; she was groomed and taught by her governess Anne Sullivan, who taught her at home, this is a successful example of Homeschooling.

It is an arrogant attitude to scoff that parents groom their children into good citizens without sending them to school. Inferior Schooling and Teaching Methods have been a bane to a child’s psychology and mentally handicapping the confidence of a child. The truth is, schools no longer groom students, they have become Examination Centres, that judge the performance of their students through results.

It will be interesting to look into some of the criticisms made by sceptics on homeschooling. One is the subject knowledge of the parents; let’s be honest, how many of us use Titration in Chemistry in our daily lives, do we even want to try it? How many of us want to know the Chronology of the Kings that ruled the Country, has it ever disturbed us?

On the other hand, Homeschooling does not mean that teachers would no longer be needed, the teacher can play a broader role as a governess or a trainer to fill in the subject gaps that the parents are unable to provide for their child.

Another criticism is that children will not learn to socialise without schools. Isn’t Covid-19 regulations discouraging socialising by asking us to avoid public gatherings and maintaining a distance of 1 meter, isn’t socialising with a bad friend as disastrous as a deadly disease?

It will be interesting to see how the trade unions are going to respond to this if homeschooling becomes successful, as they will be the worst affected. But they could always become good Governesses or Subject Experts and play a guiding role in the homeschooling venture. This country now needs more Florence Nightingales to treat the sick and more Anne Sullivans to groom the kids.

 

HASALA PERERA

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