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Degrees of culpability

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by Kumar David

Today I am courting an avalanche of invective and censure from hyperactive readers. You live only once so why not I live dangerously? My objective is serious. It’s about left leaders who did ‘this or that’ and whose plans misfired. Can we distinguish between the unforeseeable, plain bad luck, errors of judgement made in good faith, opportunists, sons of bachelors and progeny of female canines? I intend to argue that the coalition tactic of NM et al is a case of bad luck and error of judgement, not greed and corruption. Conversely the politics of Tissa, Vasu and DEW is not forgivable, it is opportunism. I did not support NM’s Coalition Resolution at the fateful 1964 LSSP Party Conference, so I don’t need to make excuses for his standpoint. A large number of other MPs, Provincial Councillors and Local Representatives belong to even lower breeds.

A comment one hears is “It was easy to convert (some say corrupt) NM, Colvin et al to Sirima”, but that is wrong. The LSSP and CP made a political decision, a wrong not a corrupt decision and that is the starting point of my intervention. The left in the 1960s and early 70s, not only in Ceylon but also Algeria, Chile, India, Indonesia and in fact almost everywhere theorised that world-wide a period in which a broad anti-comprador, anti-imperialist unity would be the vehicle of progress had dawned. In the terminology of the time “an alliance of all progressive forces including the national bourgeoisie was necessary”. Hector was the principle architect of this model in the LSSP and theorised extensively in his writings. Was this a bogus theory that NM etc. adopted to secure cabinet posts and sinecures, which is what the Dead-Left is doing today in snuggling up to the Rajapaksas? Did NM covet a job in Sirima’s cabinet – Nonsense! It is no secret that the ‘golden brained’ left leaders despised their soon to be counterpart morons in Sirima’s Cabinet.

In the context of the Cuban and Algerian revolutions, the launch of the non-aligned movement and stunning victories in Vietnam, the majority in the left believed that global class power correlations had been transformed. Socialism it seemed was a low hanging fruit to be plucked with ease; and given the intellectual superiority of the left leaders and the powerful party and working class organisations that stood behind them, the challenge had to be grasped. But it was not the prowess of individuals and most certainly not a deficit of moral probity that settled the outcome, it was the way in which objective reality evolved. The global economic plunge rooted in the end of the post-war boom of Western capitalism, two oil price crises, the disorientation the left suffered globally due to the madness of the Cultural Revolution and the vicious counter-attacks of neo-liberalism, were neither foreseen nor factored in. Many left populist regimes suffered defeat: Algeria (Boumédiène’s coup 1965), Indonesia (removal of Sukarno in 1967), Chile (Pinochet’s coup of 1973) and Pakistan (overthrow of Bhutto in 1977). The only bright spots were that Cuba survived but only just and Vietnam won. The expulsion of the left in 1975 from the Coalition that prefigured the JR regime fitted this emergence of the global hegemony of Regan-Thatcher neo-liberalism.

Can we blame the failure of the Coalition (hence the downfall of NM etc.) on global bad luck alone and say that big mistakes in domestic affairs were not made? No, that would not be true. Though NM rebuilt the nation’s finances he pushed too hard and too far. The austerity measures hurt the masses too much; he should have been cunning and relaxed in about 1973 though it would have slowed down the resuscitation of nation’s financial viability. True the 1971 JVP Insurrection was, to borrow Lenin’s terminology

, an infantile leftist disorder of theoretically clueless and strategically disoriented youth, but the left parties should not have eviscerated these misguided intellectually late maturing adolescents so harshly and they should have intervened to protect them from massacre by the state. The military and police tasted blood in 1971 and again in 1989 and let the Tamils have the full force of it later. There are fundamental errors in the 1972 Republican Constitution as well. So yes, the left in coalition did err.

 

The errors and misjudgements that I briefly summarised, are as different from the opportunism and greed for Cabinet posts and perks of the leftists of the next generation, as heaven is from earth. I don’t want to take off on a protracted exercise of scolding and denigrating the Dead-Left but I want to drive home the difference between the reasons for the defeat of the first generation of leftists and the narrow aims of the next generation. However even this second generation of pygmy leftists are a cut above blackguard mainstream politicians whose hands are deep in the honey pots of public finance, nepotism and racism. Since the county is overloaded with this moan, further comment from me is redundant. I am, to be sure like most readers and columnists, very tired of upbraiding the regime, its leaders and its parliamentarians. Nine out of ten opinions one reads and 99 of every 100 conversations one engages in, lambasts the government of the day. Can’t it become the defined and accepted editorial policy of all newspapers, websites and TV stations that devote their attention to Sri Lanka, that we don’t need to repeat this; can’t it be taken as given. Consider how much newsprint and digital resources we could save! If that could be agreed then neither I or legions of other commentators would not need to say that the old left leaders erred, sometimes grievously but they are demi-gods in comparison with the sons of bachelors and of curs that fill the political scene these days.

 

This compels me to repeat a theme that I introduced just three weeks ago and I feel disappointed that did not evoke much support. It is unfortunate but true that the people of Lanka have become habituated to electing blackguards from the village level up to Kotte at all levels of representative assembly. The redeeming feature is that our people are as short of patience as they are blighted of memory. Months ago I was the first to emphasise that the popularity of the Double-(Raja)Paksa Presidency and Government had collapsed. A regime elected by near unprecedented majorities had become the country’s most despised in a period measured in months. It is imperative therefore, given this character and temperament of our people that legislative (or constitutional) reforms be enacted to enshrine the Right to Recall at all levels of our electoral system. I am disappointed that my suggestion has not evoked interest.

 

Indian anti-corruption activist Anna Hazare sought empowerment of the electorate to recall elected representatives many years ago. That is giving the electorate power to remove or de-elect an MP before the expiry of his/her term of office. It is logical that if people elect representatives they should also have the power to remove them. It is a tool to exercise greater control and a whip to ensure greater accountability including the right to remove the corrupt and the criminal. Recall confers on the electorate the power to ‘de-elect’ their representatives through a direct vote initiated when a minimum number of voters registered in an electoral role sign a recall petition. The most useful aspect of the right is not actual recall which may be used infrequently, but the threat which will deter MPs from abusing their position. The other advantage of the system is that it will deter candidates from spending millions of rupees on elections because the opportunities for earning by indulging in corrupt practices is not guaranteed. It is incontestable that Sri Lanka has an urgent need for the right to recall Members of Parliament, Provincial Councils and Local Government bodies at all levels.

 

In the United States there have been upward of 150 recall elections of Governors, Senators, Mayors, State Legislators and City Council members from 1911 till the present time; about 75 were successful. Recall of Members of the British Parliament in now possible under legislation enacted in 2015 for defined offences less than those resulting in automatic disqualification. These petitions are automatic and triggered by a Local Returning Officer of Elections, not by popular initiative. If the subsequent recall petition is signed by at least 10% of the electorate, a by-election is called. On 1 May 2019, Fiona Onasanya was the first MP to be removed from office. Many countries on the American continent (Argentina, Canada, Columbia, Mexico, Peru and Venezuela among others) have Federal or State recall laws which have been successfully used. Switzerland, India, Germany, Ukraine, Latvia and the old Soviet Union have recall legislation in different forms covering the whole nation or certain States/Provinces. In strong federal systems provinces can enact legislation for themselves. The powers and mechanisms pertaining to these Right to Recall laws vary a great deal and are tailored to suit each case.

 

 



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Features

TNGlive relieving boredom

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Yes, indeed, the going is tough for everyone, due to the pandemic, and performers seem to be very badly hit, due to the lockdowns.

Our local artistes are feeling the heat and so are their counterparts in most Indian cities.

However, to relieve themselves of the boredom, while staying at home, quite a few entertaining Indian artistes, especially from the Anglo-Indian scene, have showcased their talents on the very popular social media platform TNGlive.

And, there’s plenty of variety – not just confined to the oldies, or the current pop stuff; there’s something for everyone. And, some of the performers are exceptionally good.

Lynette John is one such artiste. She hails from Lucknow, Uttar Pradesh, and she was quite impressive, with her tribute to American singer Patsy Cline.

She was featured last Thursday, as well (June 10), on TNGlive, in a programme, titled ‘Love Songs Special,’ and didn’t she keep viewers spellbound – with her power-packed vocals, and injecting the real ‘feel’ into the songs she sang.

What an awesome performance.

Well, if you want to be a part of the TNGlive scene, showcasing your talents, contact Melantha Perera, on 0773958888.

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Supreme Court on Port City Bill: Implications for Fundamental Rights and Devolution

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The determination of the Supreme Court on the Colombo Port City Economic Commission Bill was that as many as 26 provisions of the Bill were inconsistent with the Constitution and required to be passed by a two-thirds majority in Parliament. The Court further determined that nine provisions of the Bill also required the approval of the people at a referendum.

Among the grounds of challenge was that the Bill effectively undermined the sovereignty and territorial integrity of Sri Lanka and infringed on the sovereignty of the people. It was argued that several provisions undermined the legislative power of the People reposed on Parliament. Several provisions were challenged as violating fundamental rights of the People and consequently violating Article 3, read with Article 4(d) of the Constitution. Another ground of challenge was that the Bill contained provisions that dealt with subjects that fall within the ambit of the Provincial Council List and thus had to be referred to every Provincial Council for the expression of its views thereon as required by Article 154G(3).

 

Applicable constitutional provisions

Article 3 of our Constitution recognises that “[i]n the Republic of Sri Lanka, sovereignty is in the People and is inalienable”. Article 3 further provides that “Sovereignty includes the powers of government, fundamental rights and the franchise”. Article 3 is entrenched in the sense that a Bill inconsistent with it must by virtue of Article 83 be passed by a two-thirds majority in Parliament and approved by the people at a referendum.

Article 4 lays down the manner in which sovereignty shall be exercised and enjoyed. For example, Article 4(d) requires that “fundamental rights which are by the Constitution declared and recognised shall be respected, secured and advanced by all the organs of government and shall not be abridged, restricted or denied, save in the manner and to the extent hereinafter provided”. Article 4 is not mentioned in Article 83. In its determinations on the Eighteenth Amendment to the Constitution Bill, 2002 and the 19th Amendment to the Constitution Bill, 2002, a seven-member Bench of the Supreme Court noted with approval that the Court had ruled in a series of cases that Article 3 is linked up with Article 4 and that the said Articles should be read together. This line of reasoning was followed by the Court in its determination on the 20th Amendment to the Constitution Bill.

Under Article 154G(3), Parliament may legislate on matters in the Provincial Council List but under certain conditions. A Bill on a matter in the Provincial Council List must be referred by the President, after its publication in the Gazette and before it is placed in the Order Paper of Parliament, to every Provincial Council for the expression of its views thereon. If every Council agrees to the passing of the Bill, it may be passed by a simple majority. But if one or more Councils do not agree, a two-thirds majority is required if the law is to be applicable in all Provinces, including those that did not agree. If passed by a simple majority, the law will be applicable only in the Provinces that agreed.

 

Violation of fundamental rights and need for a referendum

Several petitioners alleged that certain provisions of the Port City Bill violated fundamental rights. The rights referred to were mainly Article 12(1)—equality before the law and equal protection of the law, Article 14(1)(g)—freedom to engage in a lawful occupation, profession, trade, business or enterprise— and Article 14(1)(h)—freedom of movement. Some petitioners specifically averred that provisions that violated fundamental rights consequently violated Articles 3 and 4 and thus needed people’s approval at a referendum.

The Supreme Court determined that several provisions of the Bill violated various fundamental rights and thus were required to be passed by a two-thirds majority in Parliament. The question of whether the said provisions consequently violated Article 4(d) and thus Article 3 and therefore required the approval of the People at a referendum was not ruled on.

The Essential Public Services Bill, 1979 was challenged as being violative of both Article 11 (cruel, degrading or inhuman punishment) and Article 14. Mr. H.L. de Silva argued that a Bill that violates any fundamental right is also inconsistent with Article 4(d) and, therefore, with Article 3. The Supreme Court held that the Bill violated Article 11 but not Article 14. Since a Bill that violates Article 11 has, in any case, to be approved at a referendum as Article 11 is listed in Article 83, the Court declined to decide on whether the Bill offended Article 3 as well, as it “is a well-known principle of constitutional law that a court should not decide a constitutional issue unless it is directly relevant to the case before it.”

A clear decision on the issue came about in the case of the 18th Amendment to the Constitution Bill; a seven-member Bench of the Supreme Court held that the exclusion of the decisions of the Constitutional Council from the fundamental rights jurisdiction of the Court was inconsistent with Articles 12 (1) and 17 (remedy for the infringement of fundamental rights by executive action) and consequently inconsistent with Article 3, necessitating the approval of the Bill at a referendum.

When the 20th Amendment to the Constitution Bill sought to restore the immunity of the President in respect fundamental rights applications, the Supreme Court determined that the “People’s entitlement to remedy under Article 17 is absolute and is a direct expression of People’s fundamental rights under Article 3 of the Constitution.”

In the case of the Port City Bill, however, the Supreme Court only determined that certain provisions of the Bill violated fundamental rights and thus required a two-thirds majority, but did not go further to say that the offending provisions also required approval of the people at a referendum.

Perhaps, the Court took into consideration the Attorney-General’s assurance during the hearing that the impugned clauses would be amended at the committee stage in Parliament.

However, Parliament is not bound by the Attorney-General’s assurances. In the absence of a clear determination that the clauses concerned required a referendum as well, Parliament could have passed the clauses by a two-thirds majority. The danger inherent in the Supreme Court holding that a provision of a Bill violates fundamental rights and requires a two-thirds majority but makes no reference to the requirement of a referendum is that a government with a two-thirds majority is free to violate fundamental rights, and hence the sovereignty of the People by using such majority. It is respectfully submitted that the Court should, whenever it finds that a provision violates fundamental rights, declare that Article 3 is also violated and a referendum is necessary, as it did in the cases mentioned.

 

The need to refer the Bill to Provincial Councils

The Port City Bill had not been referred to the Provincial Councils, all the Provincial Councils having been dissolved. The Court, following earlier decisions, held that in the absence of constituted Provincial Councils, referring the Bill to all Provincial Councils is an act which could not possibly be performed.

In the case of the Divineguma II Bill, the question arose as to the applicability of the Bill to the Northern Provincial Council, which was not constituted at that time. The Court held while the Bill cannot possibly be referred to a Council that had not been constituted, the views of the Governor (who had purported to express consent) could not be considered as the views of the Council. In the circumstances, the only workable interpretation is that since the views of one Provincial Council cannot be obtained due to it being not constituted, the Bill would require to be passed by a two-thirds majority. Although not explicitly stated by the Court, this would mean that if the Bill is passed by a simple majority only, it will not apply in the Northern Province. The Bill was passed in Parliament by a two-thirds majority. The Divineguma II Bench comprised Shirani Bandaranayake CJ and Justices Amaratunga and Sripavan, and it is well-known that the decision and the decision on the Divineguma I Bill cost Chief Justice Bandaranayake her position.

It is submitted that Article 154G (3) has two requirements—one procedural and one substantive. The former is that a Bill on any matter in the Provincial Council List must be referred to all Provincial Councils. The latter is that in the absence of the consent of all Provincial Councils, the Bill must be passed by a two-thirds majority if it is to apply to the whole country. If such a Bill is passed only by a simple majority, it would apply only in the Provinces which have consented.

The Divineguma II determination accords with the ultimate object of Article 154G(3), namely, that a Bill can be imposed on a Province whose Provincial Council has not consented to it only by a two-thirds majority. It also accords with the spirit of devolution.

A necessary consequence of the Court’s determination on the Port City Bill is that it permits a government to impose a Bill on a Provincial Council matter on a “disobedient” Province by a simple majority once the Provincial Council is dissolved and before an election is held. What is worse is that at a time when all Provincial Councils are dissolved, such as now, a Bill that is detrimental to devolution can be so imposed on the entire country. It is submitted that this issue should be re-visited when the next Bill on a Provincial Council matter is presented and the Supreme Court invited to make a determination that accords with the spirit of devolution, which is an essential part of the spirit of our Constitution.

 

 

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‘Down On My Knees’ inspires Suzi

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There are certain songs that inspire us a great deal – perhaps the music, the lyrics, etc.

Singer Suzi Fluckiger (better known as Suzi Croner, to Sri Lankans) went ga-ga when she heard the song ‘Down On My Knees’ – first the version by Eric Guest, from India, then the original version by Freddie Spires, and then another version by an Indian band, called Circle of Love.

Suzi was so inspired by the lyrics of this particular song that she immediately went into action, and within a few days, she came up with her version of ‘Down On My knees.’

In an exclusive chit-chat, with The Island Star Track, she said she is now working on a video, for this particular song.

“The moment I heard ‘Down On My Knees,’ I fell in love with the inspiring lyrics, and the music, and I thought to myself I, too, need to express my feelings, through this beautiful song.

“I’ve already completed the audio and I’m now working on the video, and no sooner it’s ready, I will do the needful, on social media.”

Suzi also mentioned to us that this month (June), four years ago, she lost her husband Roli Fluckiger.

“It’s sad when you lose the person you love but, then, we all have to depart, one day. And, with that in mind, I believe it’s imperative that we fill our hearts with love and do good…always.”

A few decades ago, Suzi and the group Friends were not only immensely popular, in Sri Lanka, but abroad, as well – especially in Europe.

In Colombo, the Friends fan club had a membership of over 1500 members. For a local band, that’s a big scene, indeed!

In Switzerland, where she now resides, Suzi is doing the solo scene and was happy that the lockdown, in her part of the world, has finally been lifted.

Her first gig, since the lockdown (which came into force on December 18th, 2020), was at a restaurant, called Flavours of India, with her singing partner from the Philippines, Sean, who now resides in Switzerland. (Sean was seen performing with Suzi on the TNGlive platform, on social media, a few weeks ago).

“It was an enjoyable event, with those present having a great time. I, too, loved doing my thing, after almost six months.’

Of course, there are still certain restrictions, said Suzi – only four to a table and a maximum crowd of 50.

“Weekends are going to be busy for me, as I already have work coming my way, and I’m now eagerly looking forward to going out…on stage, performing.”

In the meanwhile, Suzi will continue to entertain her fans, and music lovers, on TNGlive – whenever time permits, she said,

She has already done three shows, on TNGlive – the last was with her Filipino friend, Sean.

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