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Flaws in the US Constitution

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by Vijaya Chandrasoma

The Constitution of the United States of America came into force in 1789, and is regarded as the oldest written national constitution in unbroken existence. However, four years of the Trump administration, and Trump’s unprecedented behaviour after his defeat in November have served to expose some flaws in this revered document, which present a clear danger to American democracy. The areas in which these flaws exist are in Congress, the Electoral College and the Lame Duck period of the presidency.

 

The House of Representatives and Gerrymandering

The House of Representatives was established in 1789, with 65 members elected from the 11 states. The size of the House was capped in 1911 at its current number of 435 voting members. Representation of each state was determined by its population. Each state has at least one representative, irrespective of size, and the District of Columbia (Washington D.C.) has three, making a total of 438 members.

Every ten years, congressional districts of each state are redrawn according to the census, with the intent of providing equitable representation. The new districts are redrawn by state legislatures during the census, and approved by the governor. And if one party has control of the state legislature and the governor, district lines are redrawn to its own maximum political advantage. This meddling with the state’s district lines to give the ruling party an advantage in elections started in Massachusetts in 1812, when the governor, Elbridge Gerry, signed a bill that gave an electoral advantage to the Democratic-Republican Party over the competing Federalist Party. A member of the Federalist Party, in disgust, drew a simulated map of a district resembling the short arms and the long tail of a salamander. Thus the term “Gerrymandering” was born, and this unethical practice persists to the present day, with the resultant iniquity of representation, usually with respect to minorities, in state and general elections.

 

The Senate

Each state is represented by two Senators, who serve staggered periods of six years. There are currently 100 Senators from 50 states. The capital city, Washington D.C., has no representation in the Senate. The Vice President acts as the president of the Senate, and holds the casting vote in the event of a tie.

The discrimination of national representation in the composition of the Senate is obvious considering that each state is represented by two Senators, irrespective of population. As an example, the four most populous states of California (39.5 million), Texas (29 million) Florida (21.5 million), and New York (19.5 million), with a total population of nearly 110 million, a third of the total population, are represented in the Senate by eight Senators, an approximate representation rate of one Senator for 14 million people. While the four least populous states of North Dakota (762,000), Alaska (732,000), Vermont (624,000) and Wyoming (579,000), with a total population of 2.7 million are also represented by 8 Senators, a representation rate of one Senator for 335,000 people.

The ethnic diversity exhibited in the larger states, California, Texas, Florida and New York, compared to the almost entirely white populations of states like Wyoming and Vermont, means that minorities, especially more recent brown-skinned immigrants, are grossly underrepresented in the Senate.

The time for reapportionment and racial equity in the Senate is long overdue.

 

The Electoral College

As established in Article II Section 1 of the Constitution, each state has as many “Electors” in the Electoral College as it has Representatives in the House and the Senate, and three for the District of Columbia, the capital territory of the nation. Currently this number is 538 – 435 for the House, 100 for the Senate and three for Washington D.C. This represents the magic number of 270 – one more than half of 538 – Electors needed to win the presidency.

The Electoral College was established by the Framers because “they didn’t trust the people to make electoral decisions on their own. They wanted the president chosen by electors they thought of as ‘enlightened statesmen’”. They also aimed to give an unfair advantage to the slave-owning states, and so ensure that only a citizen of Virginia, the then largest state, could be elected president.

Times have changed, but the Electoral College process continues to give the advantage to a few swing states, and the kingmaking power to elect the president, totally ignoring the will of the people. Voters in states like California and New York, with their large populations of minorities, are, as in the Senate, underrepresented. The reality is that swing states of Florida, Georgia, Wisconsin and Michigan are traditionally more conservative, which presents the Republicans with an unfair edge in a general election. An edge that stood them in good stead in 2000 and 2016.

The Electoral College, rather than the popular vote, has been responsible for the election of the president twice in the 21st century. Al Gore won the election by 550,000 votes over Bush, and Hillary Clinton surpassed Trump by over 2.8 million votes. In any other country, or in the absence of the antiquated and undemocratic Electoral College, Al Gore and Hillary Clinton would have been elected to the presidency in 2000 and 2016, respectively. The United States would probably have enjoyed 28 years of uninterrupted progressive governments, sans senseless, illegal wars, treasonous cuddling up to adversaries and a serious fascist assault on its democratic ideals. An assault which has failed thus far, but continues to threaten and divide the nation.

 

The Lame Duck Presidency

When a new president has been elected, the outgoing president retains the full powers of the presidency for the 11 weeks between Election Day in November and Inauguration Day on January 20 of the following year. Such a Lame Duck president is traditionally expected to ensure the smooth transfer of power, and avoid making any major decisions which may adversely affect the functions of the new administration.

This period is in complete contrast to the period of transfer of power in other countries. In Britain, for example, if the Prime Minister is defeated on a Thursday, the newly elected Prime Minister is installed in No. 10 Downing Street by Friday night, leaving hardly any time to even change the bedsheets. The French are more liberal; they give the outgoing president ten days to get the hell out of the Elysee Palace. Other countries have more or less expeditious methods of eliminating the vanquished, up to and including incarceration or even assassination, but none has a transition period exceeding a few days.

Trump is already highlighting the dangers of a prolonged transition of power. He is using the powers of his presidency to leave the nation in complete chaos when Biden assumes power in January. The US is currently in the grip of an unprecedented economic crisis, and the national travails of a pandemic which has been criminally mismanaged since its inception and continues to claim 3000 lives every day. There is recent evidence that Russia has been hacking and spying on multiple government agencies, including the Departments of Homeland Security and Commerce, which have been hit by massive data breach in one of the worst cyber intrusions in history. Trump has said not one word about this Russian aggression. In fact, he has threatened to declassify vital security documents which will help the nation’s adversaries. President Putin could not have wished for a more willing accomplice in his stated ambition to marginalize the USA.

The five weeks of the Lame Duck presidency before Biden is inaugurated could well be the most dangerous period in American history. Trump will likely spend these last weeks in a flurry of temper tantrums, lashing out at his enemies in vengeance, self-dealing, tossing out pardons like confetti at a wedding, and trying to discredit his opponents and the system itself. Americans who want to see the rule of law restored and the Constitution strengthened must be prepared to fight for it, in the courts and in the streets if necessary. Trump and his followers will not “go gently into that good night”.

We have Trump to thank for exposing these dangerous flaws in the US Constitution. The Founding Fathers could be forgiven for these omissions as they would never have imagined, in their wildest dreams, that a clinical psychopath, lacking even a trace of humanity would be elected to the presidency.

The nation must learn from its mistakes, even acts of treason, of the past four years and amend the Constitution to invalidate these flaws. Amendments to make representation in the House and Senate more equitable; to abolish the antiquated and intrinsic racism of the Electoral College and ensure that future presidents are elected by the popular vote; and most importantly, to make certain that the transfer of power to the new president is achieved with minimum delay, so that an outgoing president will never again try to wreak vengeance on the country because of his rejection by the voters.

Trump is vowing to continue the fight to overturn the election, begging for contributions from Republicans to help him in his delusional quest. He has to date swindled his supporters to the tune of over $200 million. On false pretenses, as he has given his hand away by planning a Friends and Family program for presidential pardons. His appeals for funds from his supporters for legal costs to overturn the election are therefore only aimed at making money, as pardons are granted only at the end of a presidency.

The issue of presidential pardons has traditionally been a means to redeem cases of injustice, and done on the recommendations of the Office of the Pardon Attorney. This White House has been inundated by hundreds of pardon requests following the election loss. Trump has been abusing, and intends to abuse this privilege before he leaves the White House, to pardon members of his family, friends, even himself, who have been complicit in, or committed crimes during his corrupt presidency. It may be pertinent to remember that the Supreme Court ruled, in 1915, that the acceptance of any kind of pardon, including presidential, is in itself an admission of guilt.

On Monday, December 14, the Electoral College certified that President-elect Biden had won 306 votes and formally declared his presidency.

On Monday, December 14, the first vaccination to combat Covid-19 was injected on live TV into the arm of New York nurse, Sandra Lindsay, at the Long Island Jewish Medical Center. An amazing scientific achievement, providing a glimmer of hope even as the nation passes the grim milestone of 300,000 Covid-19 American fatalities.

Monday, December 14, 2020 will go down in history as a Day of Honour, Triumph and Hope, both for Democracy and for Science. And a Day of Relief, for finally, if only formally, vanquishing the four-year plague that has been Donald J. Trump, the multiple Loser of the 2020 presidential election.

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Features

Govt.’s choice is dialogue over confrontation

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By Jehan Perera

Preparing for the forthcoming UN Human Rights Council cannot be easy for a government elected on a nationalist platform that was very critical of international intervention. When the government declared its intention to withdraw from Sri Lanka’s co-sponsorship of the October 2015 resolution No. 30/1 last February, it may have been hoping that this would be the end of the matter. However, this is not to be. The UN Human Rights High Commissioner’s report that will be taken up at the forthcoming UNHRC session in March contains a slate of proposals that are severely punitive in nature and will need to be mitigated. These include targeted economic sanctions, travel bans and even the involvement of the International Criminal Court.

Since UN Secretary General Ban Ki-Moon’s visit in May 2009 just a few days after the three-decade long war came to its bloody termination, Sri Lanka has been a regular part of the UNHRC’s formal discussion and sometimes even taking the centre stage. Three resolutions were passed on Sri Lanka under acrimonious circumstances, with Sri Lanka winning the very first one, but losing the next two. As the country became internationally known for its opposition to revisiting the past, sanctions and hostile propaganda against it began to mount. It was only after the then Sri Lankan government in 2015 agreed to co-sponsor a fresh resolution did the clouds begin to dispel.

Clearly in preparation for the forthcoming UNHRC session in Geneva in March, the government has finally delivered on a promise it made a year ago at the same venue. In February 2020 Foreign Minister Dinesh Gunawardena sought to prepare the ground for Sri Lanka’s withdrawal from co-sponsorship of UN Human Rights Council resolution No 30/1 of 2015. His speech in Geneva highlighted two important issues. The first, and most important to Sri Lanka’s future, was that the government did not wish to break its relationships with the UN system and its mechanisms. He said, “Sri Lanka will continue to remain engaged with, and seek as required, the assistance of the UN and its agencies including the regular human rights mandates/bodies and mechanisms in capacity building and technical assistance, in keeping with domestic priorities and policies.”

Second, the Foreign Minister concluding his speech at the UNHRC session in Geneva saying “No one has the well-being of the multi-ethnic, multi-lingual, multi-religious and multi-cultural people of Sri Lanka closer to their heart, than the Government of Sri Lanka. It is this motivation that guides our commitment and resolve to move towards comprehensive reconciliation and an era of stable peace and prosperity for our people.” On that occasion the government pledged to set up a commission of inquiry to inquire into the findings of previous commissions of inquiry. The government’s action of appointing a sitting Supreme Court judge as the chairperson of a three-member presidential commission of inquiry into the findings and recommendations of earlier commissions and official bodies can be seen as the start point of its response to the UNHRC.

 

 

NEGATIVE RESPONSE

 

The government’s setting up of a Commission of Inquiry has yet to find a positive response from the international and national human rights community and may not find it at all. The national legal commentator Kishali Pinto Jayawardene has written that “the tasks encompassed within its mandate have already been performed by the Lessons Learnt and Reconciliation Commission (LLRC, 2011) under the term of this President’s brother, himself the country’s Executive President at the time, Mahinda Rajapaksa.” Amnesty International has stated that “Sri Lanka has a litany of such failed COIs that Amnesty International has extensively documented.” It goes on to quote from the UN High Commissioner for Human Rights that “Domestic processes have consistently failed to deliver accountability in the past and I am not convinced the appointment of yet another Commission of Inquiry will advance this agenda. As a result, victims remain denied justice and Sri Lankans from all communities have no guarantee that past patterns of human rights violations will not recur.”

It appears that the government intends its appointment of the COI to meet the demand for accountability in regard to past human rights violations. Its mandate includes to “Find out whether preceding Commissions of Inquiry and Committees which have been appointed to investigate into human rights violations, have revealed any human rights violations, serious violations of the international humanitarian law and other such serious offences.” In the past the government has not been prepared to accept that such violations took place in a way that is deserving of so much of international scrutiny. Time and again the point has been made in Sri Lanka that there are no clean wars fought anywhere in the world.

International organisations that stands for the principles of international human rights will necessarily be acting according to their mandates. These include seeking the intervention of international judicial mechanisms or seeking to promote hybrid international and national joint mechanisms within countries in which the legal structures have not been successful in ensuring justice. The latter was on the cards in regard to Resolution 30/1 from which the government withdrew its co-sponsorship. The previous government leaders who agreed to this resolution had to publicly deny any such intention in view of overwhelming political and public opposition to such a hybrid mechanism. The present government has made it clear that it will not accept international or hybrid mechanisms.

 

 

SEQUENTIAL IMPLEMENATION

 

In the preamble to the establishment of the COI the government has made some very constructive statements that open up the space for dialogue on issues of accountability, human rights and reconciliation. It states that “the policy of the Government of Sri Lanka is to continue to work with the United Nations and its Agencies to achieve accountability and human resource development for achieving sustainable peace and reconciliation, even though Sri Lanka withdrew from the co-sponsorship of the aforesaid resolutions” and further goes on to say that “the Government of Sri Lanka is committed to ensure that, other issues remain to be resolved through democratic and legal processes and to make institutional reforms where necessary to ensure justice and reconciliation.”

As the representative of a sovereign state, the government cannot be compelled to either accept international mechanisms or to prosecute those it does not wish to prosecute. At the same time its willingness to discuss the issues of accountability, justice and reconciliation as outlined in the preamble can be considered positively. The concept of transitional justice on which Resolution No 30/1 was built consists of the four pillars of truth, accountability, reparations and institutional reform. There is international debate on whether these four pillars should be implemented simultaneously or whether it is acceptable that they be implemented sequentially depending on the country context.

The government has already commenced the reparations process by establishing the Office for Reparations and to allocate a monthly sum of Rs 6000 to all those who have obtained Certificates of Absence (of their relatives) from the Office of Missing Persons. This process of compensation can be speeded up, widened and improved. It is also reported that the government is willing to consider the plight of suspected members of the LTTE who have been in detention without trial, and in some cases without even being indicted, for more than 10 years. The sooner action is taken the better. The government can also seek the assistance of the international community, and India in particular, to develop the war affected parts of the country on the lines of the Marshall Plan that the United States utilized to rebuild war destroyed parts of Europe. Member countries of the UNHRC need to be convinced that the government’s actions will take forward the national reconciliation process to vote to close the chapter on UNHRC resolution 30/1 in March 2021.

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Features

Album to celebrate 30 years

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Rajiv Sebastian had mega plans to celebrate 30 years, in showbiz, and the plans included concerts, both local and foreign. But, with the pandemic, the singer had to put everything on hold.

However, in order to remember this great occasion, the singer has done an album, made up of 12 songs, featuring several well known artistes, including Sunil of the Gypsies.

All the songs have been composed, very specially for this album.

Among the highlights will be a duet, featuring Rajiv and the Derena DreamStar winner, Andrea Fallen.

Andrea, I’m told, will also be featured, doing a solo spot, on the album.

Rajiv and his band The Clan handle the Friday night scene at The Cinnamon Grand Breeze Bar, from 07.30 pm, onwards.

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Features

LET’S DO IT … in the new normal

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The local showbiz scene is certainly brightening up – of course, in the ‘new normal’ format (and we hope so!)

Going back to the old format would be disastrous, especially as the country is experiencing a surge in Covid-19 cases, and the Western Province is said to be high on the list of new cases.

But…life has to go on, and with the necessary precautions taken, we can certainly enjoy what the ‘new normal’ has to offer us…by way of entertainment.

Bassist Benjy, who leads the band Aquarius, is happy that is hard work is finally bringing the band the desired results – where work is concerned.

Although new to the entertainment scene, Aquarius had lots of good things coming their way, but the pandemic ruined it all – not only for Aquarius but also for everyone connected with showbiz.

However, there are positive signs, on the horizon, and Benjy indicated to us that he is enthusiastically looking forward to making it a happening scene – wherever they perform.

And, this Friday night (January 29th), Aquarius will be doing their thing at The Show By O, Mount Lavinia – a beach front venue.

Benjy says he is planning out something extra special for this particular night.

“This is our very first outing, as a band, at The Show By O, so we want to make it memorable for all those who turn up this Friday.”

The legendary bassist, who lights up the stage, whenever he booms into action, is looking forward to seeing music lovers, and all those who missed out on being entertained for quite a while, at the Mount Lavinia venue, this Friday.

“I assure you, it will be a night to be remembered.”

Benjy and Aquarius will also be doing their thing, every Saturday evening, at the Darley rd. Pub & Restaurant, Colombo 10.

In fact, they were featured at this particular venue, late last year, but the second wave of Covid-19 ended their gigs.

Also new to the scene – very new, I would say – is Ishini and her band, The Branch.

Of course, Ishini is a singer of repute, having performed with Mirage, but as Ishini and The Branch, they are brand new!

Nevertheless, they were featured at certain five-star venues, during the past few weeks…of their existence.

 

 

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