by Rajan Philips
Qadri Ismail, Professor of English, Cultural Studies and Comparative Literature, in the University of Minnesota, Minneapolis, passed away recently. His death was sudden and shocking. Yet another Sri Lankan scholar, writer and activist has been prematurely snatched away. Everyone who reads Sri Lankan politics in English knows of Qadri Ismail. I hardly knew Qadri apart from his writings. I have met him only once, and that was in Minneapolis, in 2007. The backdrop to our meeting was the rather long review article I had written on Qadri’s (thesis) book: “Abiding by Sri Lanka: On Peace, Place and Post-coloniality.” The article was published in 2006, in The Sri Lanka Journal of the Humanities. I owe a debt of intellectual gratitude to Dr. Senath Walter Perera, now Emeritus Professor of English and the Journal Editor at that time, who invited me to review the book and then introduced me to Qadri. In keeping with the many themes that Qadri touched in his book, and following up on my recent articles on the fiftieth anniversary of the 1971 insurrection, it is appropriate that I write this sequel on the limitations of Sri Lanka’s three nationalisms as a homage to the memory of Professor Qadri Ismail.
It is also appropriate to highlight and celebrate Qadri’s exceptional accomplishments. He was an A’ Level science student who gained admission to the Medical Faculty to study Medicine. Instead, he turned down the admission to Medicine, changed course to pursue an Honours Degree in English, and completed it with a First Class in 1984. Qadri was only the second Sri Lankan to accomplish this feat. The first, nearly thirty years before Qadri, was Prof. Ashley Halpe who too gave up his admission to Medicine and went to on to secure a first in English. Halpe also topped the CCS (Ceylon Civil Service) examination after graduation, but chose university teaching over a career in the prestigious civil service. Qadri initially chose journalism and political activism over university teaching.
Beyond his vitriolic wit and irrepressible irreverence to customs and conventions, Qadri brought to bear a heightened commitment on what he wrote and what he did. The commitment to “read the world as structured hierarchically and to confront, contest and combat hierarchization, oppression and exploitation.” And to nurture the faith and optimism that “something that has never existed,” in Marx’s felicitous phrase, can be brought about.” He carried this commitment and hope to Columbia University, where he spent his graduate decade (1989-1998), the secular North American version of the old seminary, completing his M.A. and his Ph.D.
At Columbia, Qadri Ismail became probably the only Sri Lankan to be tutored by the two pioneer giants of postcolonial studies and scholarship, the great Edward Said and Gayathri Spivak. Qadri was a graduate assistant to Said, the pathbreaking Palestinian American scholar with “an unexceptionally Arab family name (and) … an improbably British first name.” Said was born to Arab Christian parents in pre-partition Jerusalem and later became an agnostic. Gayathri Spivak is the multi-lingual Bengali American scholar and a prominent figure in Subaltern Studies, who, Qadri charmingly acknowledges in his book, “quite simply, taught me how to read.” Perhaps true to his ‘doctor parents’, Qadri blossomed into a postcolonial scholar, writing his own script, in his own inimitable tone. The list of his writings and the thesis topics of graduate students whom he advised and/or examined at Minnesota, is indicative of his scholarly sweep and comparative breadth. His 2015 book “Culture and Eurocentrism,” according to the publisher’s note, challenges the “dominant default assumption” of “discrete” cultures, and contends that “culture … doesn’t describe difference but produces it, hierarchically.”
While at Columbia, Qadri wrote what I think is the first forceful formulation of the Muslim question in Sri Lanka: “Unmooring Identity: The Antinomies of Elite Muslim Self-Representation in Modern Sri Lanka,” that was published as a chapter in the 1995 symposium, “UnMaking the Nation,” that Qadri co-edited with Pradeep Jeganathan. What is unique about Qadri’s approach to the Sri Lankan national question is the demonstration of even handed forcefulness, namely, the assertion of “justice for the minorities,” on the one hand, and the commitment for “abiding by Sri Lanka,” on the other. There was a third dimension to Qadri’s commitments. To fiercely fight the sacred cows and bigotry within his own community and against the new fundamentalism of his old religion.
All of the above, Qadri fitted seamlessly within his generously global and passionately postcolonial perspective. A key part of that perspective was to aggressively question the colonial legacies of European enlightenment, manifested in everything that makes up Sri Lanka’s postcolonial polity and society – from the constitution to lopsided parliamentary representation, from quantitative privileging of the majority over qualitative parity with the minorities to inequitable socioeconomic development, and from the reactivation of old pre-colonial follies to their emergence in new postcolonial forms.
Qadri discursively envisioned a Sri Lanka “that has never existed” – one that can only experientially evolve and not be built by brick and mortar. A Sri Lanka, where nationalisms are neither celebrated nor dismissed; where identities are neither encouraged nor questioned; and where differences are neither created nor denied. Qadri challenged the formulation of Sri Lanka’s national question as a privileged contest between Sinhala hegemony and Tamil self-determination to the exclusion of everyone else, and asserted that both the formulation of the question and its resolution must involve the dissemination of justice and equality among all Sri Lankans, including the Muslims, the Upcountry Tamils, and the Christians. The perennial failure of the State to attend to these tasks has reduced this naturally resplendent island to a politically, and violently dysfunctional family of nationalisms for 30 years. The failure of the State is only one side of the political coin. The other is the limitations of Sri Lanka’s three nationalisms.
Limitations of Nationalisms
The limitations of Sinhala, Tamil and Muslim nationalism have manifested themselves in their respective domains. Insofar as the three nationalisms are constrained to co-exist within a small island, the effects of these limitations have been generally to contain the excesses of these nationalisms. However, not always with significant success. While Sinhala nationalism is the most powerful of the three, its limitations can be seen in its inability to totally dominate, or crush, and eliminate the other two. In fairness, there are many Sinhalese and in critically sufficient numbers who do not approve of total domination or crushing of the Tamils and the Muslims. That in itself is a limiting counterweight to the more domineering instigators of Sinhala nationalism.
As for Tamil nationalism, its limitations and even losses have mostly surpassed its gains. But at every turn it has proved itself to be resilient and capable of regeneration. At the same time, just as much Sri Lankan Tamil nationalism cannot be eliminated from Sri Lanka, it cannot also overcome its ultimate limitation – that of having to find its due place within Sri Lanka. The Muslims, although they have been in the country like everyone else from the beginning of modernity and even before, are latecomers to the Sinhala-Tamil nationalist bickering. Their expectations are limited, and so their limitations are also immaterial. Yet, their arrival has not only transformed the debate but also widened the scope for finding potential accommodations.
The main contests of the three nationalisms have been in the arena of the state. In many political societies the emergence of the state facilitated the making of the nation. Hence the concept and experience of state-led nations and nationalisms. There was always the possibility of the postcolonial State of Sri Lanka spearheading the making of an inclusive nation along the lines that Qadri Ismail envisioned. That possibility is neither far fetched nor Utopian. However, the Sri Lankan experience has been not one of a unifying and inclusive experience of nation making. On the contrary, the experience has been the rejection of that possibility, and the virtual appropriation of the state by Sinhala nationalist forces and agendas to the exclusion of others. But even that appropriation has shown its limitations, for while the state was able to conclusively defeat the challenge of Tamil separatism, it is not able to override the non-separatist expectations of Tamil nationalism.
At another level, the 2019 Easter bombings exposed not any limitations but the sheer incompetence of the Sri Lankan state and its functionaries. And while the last government could not prevent the bombing in spite of prior warning, including warnings by the Muslim community itself, the present government seems unable to find out, let alone reveal, who all the masterminds behind the bombings were. More than incompetence, there are also conspiracy allegations of connivance between the elusive masterminds and high echelons of not just the last government, but the present government also. And in a historic role reversal from the 1960s when the government of the day brought the Catholic Church “to its knees” over ‘Catholic Action’, the Catholic Cardinal of today seems determined not to let the government pull the rug over criminal investigations.
A common feature of the emergence of nationalism(s) in Sri Lanka is the virtual absence of a significant economic base. The absence of a robust economy was a major factor in the developmental failure of an inclusive Sri Lankan nationalism. To the extent Sinhalese nationalism has appropriated the state, it has also appropriated the national economy. But time and again the state’s failure to come to equitable terms with the presence of Tamils and Muslims in the country, has also undermined its efforts to grow the economy even to its limited potentials. On the other hand, the economic underpinnings of the origins of Tamil nationalism were nothing more than grievances over government jobs, and later over depletion in university of admissions. At its highest stage, Tamil separatism rose over a veritable domestic economic vacuum. At the same time while the economic factor is a serious limitation on the extrapolations of Tamil nationalism, it is not going to be fatal to its continuing survival within Sri Lanka. It is fair to say that the Muslim community is more aware of the limitations of its nationalism, but it has become justifiably insistent that it cannot be indefinitely taken for granted.
The mechanics of the emergence of the three nationalism are to be found in the workings of Sri Lanka’s electoral democracy, the sociocultural structures of the three communities, and the robust assertions of their religious and linguistic inheritances. But nothing in the emergence or the mechanics thereof would suggest that the three nationalisms are inherently incompatible. The limitations of the nationalisms have prevented their excesses from becoming too excessive. The overarching role for integrating them can only be undertaken by the State of Sri Lanka. There is scarcely any sign that those currently running the State are aware of this task, let alone undertake it.
TNGlive relieving boredom
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.
Supreme Court on Port City Bill: Implications for Fundamental Rights and Devolution
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.
‘Down On My Knees’ inspires Suzi
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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