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Letters from the past

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File Photo of Ban Ki-moon, UN SG with President Mahinda Rajapaksa

By Prof. Rajiva Wijesinha

In the context of Lord Naseby’s recent launch of his book about Sri Lanka, where which G L Peiris delivered an uncharacteristically passionate attack on the hypocrisy of the British government, I thought I should look here at how we blundered endlessly in dealing with the major political problem this country has faced for the last decade, namely the publication of the Darusman Report and our failure to respond to it clearly.

As soon as it came out, I told the Foreign Ministry to take up its substance with the UN, but that was when they were pretending that nothing untoward had happened. Instead of answering allegations, Gotabaya and Basil Rajapaksa went their separate ways in recording their views as to what had happened, with no substantial arguments to refute allegations. When I told Gotabaya this, when he asked me to comment on the text his people had prepared, he agreed that something should be done but that it was not his business. He said he had delegated that to the Chief of Defence Staff, Roshan Goonetilleke, who however told me that he had received no such commission, but, in any case, he did not have the resources to do this.

And, so, the criticism of our actions turned into gospel truth.

Over the years that followed I tried to stir our lethargic officials into action, but nothing came of this letter, sent to the then Secretary of the Ministry of External Affairs, at the same time as I wrote to several others. I have collated it with the rest, in a document that I sent to Shamindra Ferdinando, the only journalist who then and now tried consistently to stir government into action, from the perspective of someone who had followed the war closely and understood how unfair the allegations were – but who also increasingly despaired of the lethargy of government.

I had drafted the queries for the Ministry of External Affairs, but it was not interested and told me to send them myself. I did pass them on to the Resident Coordinator, but I had no status and, though he told me he had passed them on, there was of course no response from Ban Ki-moon.

Why Mahinda Rajapaksa, who had fought the war ably, did nothing to defend the country from these attacks, still beggars belief. But he had surrounded himself with people who believed that by reassuring him they could enhance their own positions.

As the queries make clear, there was enough evidence from internal UN records – which the Darusman Panel ignored – to make clear that their allegations were made up of selective reports from minor personnel.

From a letter sent to the Ministry of External Affairs in July 2011

It will be helpful, for the sake of reconciliation alone, to challenge the impact created by these events. In particular, I believe that we should ensure correction of those aspects that are clearly misleading of what is erroneously referred to as a UN report. At the same time, we should treat seriously aspects that are not inaccurate and that create an adverse impression.

This can be done more easily if we have made sure that errors are eradicated and clarification provided with regard to matters that are obscure or suggest inadequate understanding of realities. I have in several publications drawn attention to errors, and I believe a summation of these should be brought to the attention of the UN Secretary General. At the same time, he should be asked to respond to the queries on the attached page, since they bear on the credibility of the report as it has been compiled. I have several others, following close scrutiny of the report, but these will be enough for the moment.

I raise these because I believe we have not responded effectively to slurs that can irretrievably damage the reconciliation process if allowed to go unchecked. At present we simply react to relentless criticisms, without addressing its root causes. While I can understand reluctance to respond to the substance of an inappropriate report, there is nothing to prevent us questioning the methodology used.

I hope very much that you will be able to proceed on these lines or similar ones. Yours sincerely

1. Did the Panel consult the heads of UN agencies in Sri Lanka with regard to the various allegations contained in the Panel report, and in particular those concerning

a) Alleged rape

b) Deliberate deprival of humanitarian assistance

c) Unnecessary suffering for the displaced

d) Lack of information about rehabilitation sites?

It would be useful to ask the UN Secretary General to circulate the letter of the UN Resident Coordinator with regard to conditions at the camps, and request reports from him as well as the heads of the WFP and UNHCR with regard to these matters. In particular the UN Secretary General should be asked to share with the panel the reports of the various protection agencies that functioned during this period.

2. Did the Panel consult the head of the ICRC with regard to the various allegations contained in the Panel report, and in particular those concerning

a) Transportation of the wounded and others from conflict areas to government hospitals, and the treatment received by these

b) Transportation of food and other supplies to the conflict area

c) Information provided by the ICRC to government about conditions in the conflict area, and in particular the establishment and operation of medical centres

It would be useful to ask the UN Secretary General to circulate the letter of the ICRC head to the navy regarding its support for ICRC operations, and to request reports from him with regard to these matters.

3. Were there reports prepared by the UN or the ICRC which were shared with the panel, but which were not provided to government?

4. Did the UN set up a ‘networks of observers who were operational in LTTE-controlled areas’, as claimed in the report. Was this with the authority of the UN Resident Coordinator, and how did it fit within the UN mandate? With whom were its reports shared?

5. Did the UN obtain other reports from international UN employees in Sri Lanka, and were these with the authority of the UN Resident Coordinator? How did these fit within the UN mandate? If these reports were intended to improve the condition of affected Sri Lankans, why were they not shared at the time with government?

6. Did the Panel consult the UN Special Representative on the Rights of the Displaced, Prof Walter Kalin, and use the reports he published? Were they aware that he visited Sri Lanka three times during this period?

7. Will the Panel explain errors such as the attribution to government of actions relating to the LTTE (Footnote 92), the attribution to government of an inappropriate response (at the end of January) to an ICRC statement issued on February 1st, the assumption that food was only sent to the conflict zone through the ICRC, the attribution (though obscurely) to the terrorist associated Tamil Rehabilitation Organization of the claim that individuals died of starvation, the claim that Manik Farm did not have its own water source, the claim that psychological support was not allowed by the Ministry of Social Services, etc?

8. Will the Panel study the analysis of its claims with regard to attacks on hospitals, in the light of claims made at the time, and in the context of official ICRC documentation of what was conveyed to government?

9. Will the Panel explain its selective characterization of participants in the conflict, including its description of the LTTE as disciplined, while bribery is attributed to the military as a whole, with positive actions being attributed to individuals?

10. Will the Panel provide sources for the various estimates mentioned in Para 133, as well as all alternative estimates with regard to the given figures? Will it also explain the sentence ‘Depending on the ratio of injuries to deaths, estimated at various times to be 1:2 or 1:3, this could point to a much higher casualty figure’ and how it relates to the figure of 75,000 given immediately afterwards?

11. Will the Panel explain what it means when it uses the word ‘Government’, and in particular its source for various critical comments such as those in Paras, 131 and 136 and Footnote 77?

12. Has the Panel studied the reports of UN committees which make clear the reluctance of agencies entrusted with funds for the benefit of Sri Lankan displaced citizens to upgrade facilities at Manik Farm despite numerous requests, as well as the manner in which funding was squandered on international personnel who were unable to ensure adherence to national and international standards with regard to sanitation?



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Opinion

What is money?

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By Prof Kirthi Tennakone

People, who are over-conscious about money, strive to earn as much as they can in the shortest possible time. Some resort to crooked means of acquiring large sums. Few realise money is not everything but depends on it for survival. The poor sweat and exhaust themselves to earn pennies. Improvised beg for pennies in streets. Governments in debt plead for dollars

Whether you like it or not, money drives modern society. It is hard to think of an affair that costs no money. Being so familiar and too attached people take money for granted and rarely question what it really means. And tends to think of money in terms of currency notes and coins. Money is not something tangible but an abstract entity representing the worthiness of goods and services. Money can be moved across any distance at the speed of light, permitting beneficent transactions as well as laundering. It can be stored to postpone usage or invested.

Concept of money

Philosophers and economists have attempted to define money. According to Aristotle, money facilitate exchange of goods and serve as an assessment of worth – implying money has an intrinsic measurable value. Thereafter gold became the standard of money and the value of currency was defined in terms of weight of gold. Aristotle was materialistic, but his teacher Plato being more idealistic and abstract, disagreed. He denounced linking money to metals like gold and silver and declared money is only a symbol devised to makes exchanges of goods easier. More recent credit theory of money akin to Plato’s idea considers money as the entity that keep track of credit and debit in transactions of commodities and services. International Monetary Fund (IMF) states: money is anything that serves as store of value, unit of account and medium of exchange.

In physics familiar quantities such as length, weight and time are precisely defined in terms of fixed units. Money cannot be similarly defined to the satisfaction and precision of a physicist. It is a social attribute that emerged naturally.

The concepts in physics are understood and defined precisely. We feel temperature, it is the degree of hotness of a body, which can be measured using a thermometer. Physicists have understood temperature as average energy of random motions of molecules constituting the object. Money is also a measurable entity, but cannot be understood that accurately as the simpler idea of temperature.

Complex systems derived from a large number of mutually interacting entities acquire qualities absent or un-meaningful to an individual entity existing alone. We cannot talk about the temperature of one single isolated molecule. Likewise, money made no sense to earliest ancestors of humans, when each adult was singly dependent by himself for food and shelter. As humans advanced, the community noted there are individuals who perform better in certain tasks. Some were good at hunting, while other excelled in searching and digging yams. Why not exchange meat for yams and by how much? Three handfuls of meat for one handful of yams, because yams were a scarce commodity in the forest! The primitive tool makers had an opportunity. They would have exchanged stone tools for meat or yams; devoting lesser time for gathering food and gaining time for improvising better tools. This is the origin of barter system–exchange of goods and services. The barter marketing posed a natural hurdle; the producer of a certain item had to find a customer who possessed something he or she wanted to exchange – a double coincidence of low probability. With the advent of agriculture, grain became a commodity consumed by everybody. The quantity of it being measurable by volume; grain reached the status of a quantifiable commodity, adopted as the standard of barter – a form of money. However, grain money entailed problems. Grain cannot be stored indefinitely and instant transport of large quantities poses insurmountable difficulties. Thereafter, money shifted from grain to weighed amounts of noble metals; gold, silver and copper. Being rare and durable metals served as better exchange materials quantified in handy light weight pieces, which later transformed into coins. A community in a pacific island had used coconuts as the exchange material, one nut as the unit of money. Later, realising the inconvenience of transactions using a bulky object as exchanging agent, they resorted to a rare kind of sea shells. The pacific islanders had no contact with the continent, where metal money originated. Nevertheless, reverting from coconuts to sea shells in the pacific island is conceptually equivalent to going from grain to metal money in the continent. Things material or immaterial can represent money, provided counterfeiting is prevented. Today world has accustomed to paper money. Electronic money already there, might replace it in the future

A society progressing and moving forward, imperatively arrives at the concept of money. Aliens with capabilities similar to humans, if they exist elsewhere in the universe, would undoubtedly use money for their activities. A civilisation cannot advance without invoking the idea of money. How else they would exchange goods and compensate services? English novelist and historian H.G. Wells in his work ‘A modern utopia’ says, I do not see how one can imagine anything at all worthy of being called a civilization without money.

Is money also an evil?

Money is neither an evil nor a virtue intrinsically. Nonetheless, literature frequently portrays money as an evil. According to Aristotle man’s ambition and desire to make money are the most frequent causes of deliberate injustice. Bible says love for money is root of all evil. In the play ‘The Merchant of Venice’ Shakespeare writes a love for money can be deadly. Treating money as something sinister had also originated from the attitude of predatory money lenders. In early days when barter economy was transforming into a currency system. Peasants and workers were deprived of new commodities purchasable only with currency. Money lenders offered coins for unwarranted rates of compound interest. They quarreled and harassed peasants in the event of failure to settle the loan with due interest. Often the law of the land favored the moneylender, supported by corrupt officials of the state. When East India Company introduced their coins to Sri Lanka, moneylender exploited our famers. Folklore recite many such incidents.

Evil is not money but the manipulations of opportunists who grab money unfairly and illegally or use of money to inflect crime. Rightful earning of money is not considered a sin but a meritorious deed worthy of praise as told in Chulasetti Jatakaya.

Chulasetti Jatakaya

Chulasetti who inherited his father’s position as the Treasurer of the King Brahamadatta was a man of unmatched wisdom-a Bodhisattva. One day on way to the palace he saw a dead mouse lying on the road. With a burst of foresight, Bodhisattva declared this is an opportunity for young man to be rich and marry a woman. A poor lad having overheard the words of the Bodhisattva, picked up the carcass sold it for one penny to a nobleman fondling a cat. With the penny he bought jaggery. Serving sweet and water to tired men returning from jungle after collecting flowers, he earned eight pennies. After a series of many other innovative pursuits, he earned sufficient money to buy a shipload of merchandise and sold them to wealthy persons in the town. One day he went to see Chulasetti and told him, I earned so much money because of your words. Chulasetti said, you deserve praise for earning money rightfully. I will give my daughter in marriage to you and transfer my wealth.

Money is neutral and innocent. The neutrality permits any person irrespective of his or her social standing to earn rightfully and become rich, whereas innocence allow rogues to pilfer billions. Society honors the former and condemn the latter.

Relative value of money

A kilogram of sugar costs around 500 rupees in Sri Lanka and about 0.4 dollars in United States. On basis of these prices, can we deduce sugar is more expensive here than in United States? One would argue, as one US dollar amounts to about 360 Sri Lankan rupees, sugar is lot more expensive in Sri Lanka. But what made one United States dollar equivalent to 350 Sri Lankan rupees? The value of money is relative. Conversion rate of US dollars to another currency is absolutely determined by comparison of the average purchasing power of the two currencies. However, currencies are also marketable commodities, value determined by supply and demand, which depend on factors additional to purchasing power and determined by the foreign exchange market. The Central Bank adjust the value of local currency accordingly. Central Banks also have the authority to set the value of local currency at a desired level relative to the dollar. If the productivity of a nation is low, devaluation (depreciation) of its currency would be advantageous, whereas the impact of revaluation (appreciation) likely to be negative; when it comes to earning of foreign exchange.

Wages and prices of goods together decides money’s worth in the society. If you express price of sugar as a fraction of the average wage of people in United States and Sri Lanka, you can meaningfully conclude sugar is cheaper in United States. Obviously, this fraction remains independent of the unit of currency. Likewise, the fraction defined as: the average price of goods divided by the available supply of money remain invariant with respect to the unit of currency. Economists, conjecture that the price level of goods increase in proportion to the money supply. When a government print money to raise the wages, the price level escalates. Compelling workers to demand further salary increases and if implemented by printing more money, prices of goods continue to increase – an economic outcome referred to as hyperinflation. The price of goods can be reduced effectively only by boosting the production.

Hard currency

Nation cry for dollars, shouting we cannot purchase adequate quantities essential commodities without this brand of money. Hard money means a kind of currency accepted in international transactions and readily convertible. United States dollar stands as the hardest currency – competitively preferred in global business dealings. Other currencies acknowledged as hard are; Euro, Japanese Yen, Great Britain Pound, Swiss Franc and Canadian and Australian Dollars. A general consensus of credibility in transactions determine hardness. The countries where hard currencies originate are politically stable and economically sound offering a wide variety of quality goods and services. It is impossible to define a hard currency precisely. They originate as competitive selection of different brands of money.

Development plans and Monetary Policy

Every country obtains a portion of goods and services from abroad. Demanding foreign exchange which has to be earned and maintained as a reserve. Lower the productivity greater is the requirement of foreign money. Increasing production to optimize local requirements and delivery of exportable goods and services ensure hard currency earnings and economic stability. During past few decades many nations, previously classified as underdeveloped have achieved this goal.

Development plans and monetary policy of a nation are intimately linked. Monetary policy means management of money by a Central Bank to secure price stability and employment. Economic theories and empherical evidence indicate sustainable economic growth necessitates maintenance of a low price level. Unfortunately, foreign exchange heavily influences the price structure and availability certain goods, compelling governments in low income countries to go for loans, to be paid back with interest. The situation is critical when countries are heavily dependent on imports for routine consumption and development. If borrowed funds are not properly utilized or misused the consequences would be disastrous.

Improper expenditure of money by governments: Wrong policies

The greatest harm to an economy would be the diversion public funds to avenues having no bearing on production and social wellbeing. Such expenditures incur as massive projects commissioned without ascertaining economic returns or misappropriation.

Providing extraordinary financial benefits to sectors not commensurately contributing to the society, constrains the budget and discourages productive groups who agitate for fairness. Programmes geared for alleviation of poverty and employment are sometimes counterproductive. Poor should be supported to become rich providing substantial inputs, instead of stagnating them at the same level of deprivation giving token subsidies. Instead of exploiting cheap labor to earn dollars, country needs to introduce policies to breed high quality labour for domestic and overseas expectations. Increasing work force for shake of employment creates inefficiency.

The human resource turns productive and innovative only when they receive proper education. It is a myth to believe that a general education inclined only towards technology will nurture innovators. Educational reforms have to consider inculcating rational thinking, absence of which is the root cause of many social ills. Innovators are dreamers who undertake risk, dispelling myth. Our policies should be geared for the purpose.

An example of wrong policy that will go to history is banning of chemical fertilisers. Even a high school student who had assimilated science understands why the present-day food demand cannot be not met without concentrated fertilisers. The stupidity and motives of the politician is one thing, but a band of so- called experts advocated the idea. The ineffectiveness of their carbon, organic, microbial, bio and biofilm fertilisers has now been manifested to the nation and world at large. Agricultural specialists in our institutions did not (could not) turn out sufficiently vociferous to nip the foolish idea in the bud!

The fertiliser episode reflects a serious fundamental flaw in our entire establishment. Identifying all the factors (not necessarily pertaining to agriculture) and their elimination is absolutely essential to rebuild the nation.

Author can be reached via email: ktenna@yahoo.co.uk

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Opinion

1972: Another in a history of missed opportunities

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‘That 'legitimacy deficit' of the 1972 Constitution no doubt helped J. R. Jayewardene, who succeeded the liberal-minded Dudley Senanayake as the leader of the UNP, to impose his own will in turn in the form of the 1978 Constitution with which the country is still straddled.’

1972 Construction in Retrospect – II

By Dr. Jayampathy Wickramaratne,

President’s Counsel

In the two earlier parts of this article, the writer dealt with the Constituent Assembly process that led to the First Republican Constitution and how the Constitution led to constitutionalising majoritarianism in multi-cultural Sri Lanka. In a country with a history of missed opportunities, 1972 was another.

Fundamental rights

A noteworthy feature of the 1972 Constitution is the recognition of fundamental rights. Principles of State Policy contained in another chapter were to guide the making of laws and the governance of Sri Lanka. But these Principles did not confer legal rights and were not enforceable in a court of law.

The fundamental rights guaranteed by the 1972 Constitution, however, were mainly civil and political rights: equality and equal protection, freedom from arbitrary deprivation of life, liberty and security of person, freedom of thought, conscience and religion, freedom to enjoy and promote one’s culture, freedoms of assembly, association, speech and expression, movement and residence and freedom from discrimination in appointments in the public sector. But all these rights were subject to such restrictions as the law may prescribe in the interests of national unity and integrity, national security, national economy, public safety, public order, the protection of public health or morals or the protection of rights and freedoms of others or giving effect to the Principles of State Policy.

Thus, even the freedom from arbitrary deprivation of life and the freedom of thought, conscience and religion could be restricted. While Principles of State Policy did not confer legal rights, fundamental rights could be restricted to give effect to such principles. In several cases, the Constitutional Court held that impugned provisions of Bills that were prima facie inconsistent with fundamental rights were nevertheless for the purposes of giving effect to Principles of State Policy. It is hard to see the rationale for permitting fundamental rights, which bind all organs of government, to be restricted in the interests of Principles of State Policy which are only for guidance in law-making and governance and are not enforceable.

Much has been said about the new constitution not having a provision equivalent to section 29 (2) of the Soulbury Constitution. While the fundamental right to equality and equal protection was a safeguard against discrimination, it was subject to wide restrictions, unlike section 29 (2), which was absolute. Also, section 29 (2) was in the nature of a group right. Although it was not as effective as it was expected to be, as was demonstrated by the failure to invoke it to prevent the disenfranchisement of hundreds of thousands of Hill-Country Tamils, numerically smaller ethnic and religious groups nevertheless felt comfortable that it existed, at least on paper. They saw its omission from the 1972 Constitution as a move towards majoritarianism, especially in the context that Sri Lanka was declared a unitary state, Buddhism given the foremost place, and Sinhala declared to be the only official language.

With the ‘Republic pledged to realise the objectives of a socialist democracy’, the non-inclusion of second-generation human rights based on the principles of social justice and public obligation is puzzling. Important examples of such rights that could have been included are the right to just and favourable conditions of work, equal work for equal pay, right to rest and leisure as an employee, right to free elementary education, right to food, clothing, housing, medical care and necessary social services and right to special care and assistance for mothers and children.

Section 18 (3) of the 1972 Constitution provided that all existing laws shall operate notwithstanding any inconsistency with fundamental rights. This was in sharp contrast to the Constitution of India, which provides in Article 13 (1) that all laws in force before the commencement of the Constitution, in so far as they are inconsistent with fundamental rights, shall, to the extent of such inconsistency, be void. The 1972 Constitution did not provide for a special jurisdiction of a court for the enforcement of fundamental rights against the executive arm of the State. Theoretically, fundamental rights could have been enforced through writs in public law as well as through actions for damages, declaratory actions and injunctions in civil courts. There is only one known fundamental rights case under the 1972 Constitution, Gunaratne v People’s Bank, a declaratory action arising out of the famous bank strike of the 1970s.

Constitutionality of legislation

A significant feature of the 1972 Constitution was that, unlike under the Independence Constitution, a law could not be challenged for constitutionality. Post-enactment judicial review of legislation was thus taken away. Chapter X provided for pre-enactment judicial review. A Bill could be challenged in the Constitutional Court within a week of it being placed on the agenda of the National State Assembly (NSA).

A Bill which is, in the view of the Cabinet of Ministers, urgent in the national interest shall be referred to the Constitutional Court which shall communicate its advice to the Speaker as expeditiously as possible and in any case within twenty-four hours of the assembling of the Court.

An argument against post-enactment judicial review is that there should be certainty as regards the constitutionality of legislation. However, no serious problems have arisen in jurisdictions where post-enactment judicial review is permitted. To mitigate hardships that may be caused by legal provisions being struck down years later, the Indian Supreme Court has used the tool of ‘prospective over-ruling,’ limiting the retrospective effect of a declaration of invalidity in appropriate cases. Section 172 of the South African Constitution expressly permits such limitation.

Post-enactment judicial review is an essential tool to prevent infringement of constitutional provisions by legislative action. The effect of most legislative provisions is felt only when they are being enforced. Another argument in favour of post-enactment judicial review is that the people are able to get the benefit of the latest judicial interpretation of a constitutional provision. There have been many instances of obviously unconstitutional provisions going unchallenged. Provisions relating to urgent Bills have been abused by successive administrations. An urgent Bill is referred directly to the Supreme Court by the President even without a Gazette notification. Such a Bill is not tabled in Parliament before such reference and even Members of Parliament would not know the contents of such a Bill.

Judiciary

Under the Independence Constitution, the Chief Justice, the Judges of the Supreme Court and Commissioners of Assize were appointed by the Head of State, on the advice of the Prime Minister. The 1972 Constitution made no change in that regard.

In relation to other judicial officers, however, the provisions of the new constitution were very unsatisfactory.

Since 1946, the appointment, transfer, dismissal and disciplinary control of judicial officers had been vested in a Judicial Service Commission consisting of the Chief Justice, a Judge of the Supreme Court and another person who is or has been a Judge of the Supreme Court.

The 1972 Constitution provided for a five-member Judicial Services Advisory Board (JSAB) and a three-member Judicial Services Disciplinary Board (JSDB), both headed by the Chief Justice. A list of persons recommended for appointment as judicial officers and state officers exercising judicial functions would be forwarded by the JSAB to the Cabinet of Ministers, which was the appointing authority. The Cabinet reserved for itself the right to appoint a person not recommended by the JSAB, subject to the proviso that the full list of JSAB-recommended names and the reasons for non-acceptance of anyone so recommended were tabled in the NSA. Dismissal and disciplinary control were exercised by the JSDB, which was required to forward a report to the Cabinet through the Minister of Justice and a copy transmitted to the Speaker. A judicial officer could also be removed for misconduct by the President on an address by the NSA. J.A.L. Cooray considered the changes effected by the 1972 Constitution to be hardly compatible with the independence of the judicial function. (Constitutional and Administrative Law of Sri Lanka, 2nd edn, 69).

Public service

Under the Independence Constitution, the Permanent Secretary of each ministry was subject to the general direction and control of the Minister in exercising supervision over the departments coming under the ministry. The 1972 Constitution made no change to this position except to include institutions, such as corporations, within the ambit of the relevant provision.

Before 1972, the appointment, transfer, dismissal and disciplinary control of public officers were vested in a Public Service Commission appointed by the Governor-General. This position was changed, and the powers were taken over by the Cabinet of Ministers. Appointments were made after receiving recommendations from a State Services Advisory Board. The power of appointment could be delegated to the Minister concerned or by the Minister, in turn, to any state officer. The power of disciplinary control and dismissal was exercised after receiving a recommendation from the State Services Disciplinary Board.

The UF no doubt considered the bureaucracy to be obstructionist and wished the public service to be available to the government to accelerate socio-economic development. This is understandable. As Radhika Coomaraswamy has argued in Sri Lanka, The Crisis of the Anglo-American Constitutional Traditions in a Developing Society, the framers of the 1972 Constitution considered the checks and balances contained in the 1947 Constitution appearing to obstruct decision-making, perpetuating a status quo of privilege and domination. But rather than including appropriate constitutional provisions to ensure that political decisions were carried out by the bureaucracy, the entire public service was placed under the control of the political executive, eroding the independence that it enjoyed.

Legality and legitimacy of the Constitution

1972 was undoubtedly a legal revolution. According to L. J. M. Cooray, the question of the legality of the process followed does not arise. ‘One might just as well ask: Was the American War of Independence legal? The Constituent Assembly of Sri Lanka was part of a revolution, which aimed at overthrowing the existing constitution.’ As to the ‘legality’ of the new Constitution, Cooray stated: ‘It could be answered by posing the question: Does the stigma of illegality apply to the United States Constitution or to the Bill of Rights and the Acts of Settlement which followed the 1699 Revolution [of Britain]?’ A constitution becomes legal in the course of time if it is accepted by the people, the courts and the administration. This requirement was fulfilled in respect of the 1972 Constitution, Cooray opines. Constitutional Government in Sri Lanka, 1796-1977 (Lake House 1984) 246-247.

Legality apart, did the 1972 Constitution have the necessary legitimacy? With all political parties agreeing on the Constituent Assembly process, it was a unique opportunity to adopt a constitution that had the support of the people at large. But, instead, the United Front imposed upon the country a constitution of its choice.

Rather than impose its will on the Constituent Assembly, the UF should have accommodated the views of the various parties that answered its call to take the Constituent Assembly route. Such accommodation would have given greater legitimacy to the 1972 Constitution. That ‘legitimacy deficit’ of the 1972 Constitution no doubt helped J. R. Jayewardene, who succeeded the liberal-minded Dudley Senanayake as the leader of the UNP, to impose his own will in turn in the form of the 1978 Constitution with which the country is still straddled.

Concluding remarks

While the complete break from the British Crown, retention of the parliamentary form of government, the introduction of a fundamental rights chapter and declaration of principles of state policy were undoubtedly laudable, the 1972 Constitution also paved the way for majoritarianism and undermining of the concepts of the rule of law and the supremacy of the constitution.

1972 was also a historic opportunity to accommodate the diversity and pluralism of the people of Sri Lanka in state power and resolve the language question, an opportunity that tragically was missed. If the United Front had met the Federal Party halfway, the history of this country might have been significantly different.

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Opinion

Stay, Gota, STAY! 

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by Dr Asoka Weerakkody 

Nobody knows how the signature battle cry of the suffering masses ‘GOTA GO HOME’ started or by whom. But by now it is everywhere including on the back of three-wheelers, which is the high altar of social comment in Sri Lanka. The other day I found one even on a ‘higher’ plane; on the small traditional budu-ge in a house in our village, just beneath the offered flowers, was the message, GOTA GO HOME!

At first, the protests erupted spontaneously and independently throughout the country by the masses who had had enough. Whereas these were ad hoc, the march on Galle Face became THE permanent site of protest against a corrupt government that had also become inept. Whereas masses will put up with the corrupt, it will not with the inept, and certainly not with the disastrous combination.

At first, the young protesters were the darlings of every free-thinking man and woman in the country, of the society elders and of the religious leaders. Their strength was their spontaneity, indefatigability and especially their apolitical nature.

But, now?

There are worrying signs that the once-blooming flower of the ‘Sri Lankan Spring’ is wilting. Is it going the same way as the Pohottuwa?

In today’s world of mass communication, no protest movement can remain apolitical for long. Sooner than later, they will be consumed and become controlled by the dark forces of extremism, on the far left (or the far right). Be it the Black Lives Matter marches, the LGBT rights marches or the environmental protests, fate is the same. Whereas the original marches were spontaneous and peaceful, those which followed became violent and destructive. After such a destructive spree across Pittsburgh, USA, one distraught Black man wailed, ‘they vandalised and ransacked my shop. I don’t know where they came from. They are not from here. They are not even Black’.

We went for a walk around the Gota Go Gama before it was attacked. One could not but admire the dedication and the staying power of these youngsters, camping in the sun and the rain, and shouting slogans, till they become hoarse. However, one could also see a comprehensive organization behind the face of spontaneity. And a lot of funds seemed to be pouring in. From where? The Aragalaya, which is accusing the members of the government of receiving funds from dubious sources, must itself be open about its own sources of funding if it were to remain credible.

For e.g., one sight caught my eye. Set back from all that froth and fury in the street, there was a very long orderly queue of people. First, I wondered whether it was for toilets! No, it turned out to be the queue for food – biriyani, provided free! There is something incongruous about this. Who is spending vast amounts of money to provide same – and more importantly, why?

Non-party? Apolitical?

The novelty of the Aragalaya is that it is largely driven by young people who have hitherto been apolitical and fiercely independent.Whereas this was true at the beginning, there are disturbing signs that it is no longer the case:

The slogans they shout do not sound spontaneous but orchestrated. This is also evident in the ‘sister’ protests in the provinces. They are reading from a script, the leader as well as the chorus – rather like schoolchildren practising for a play.

 (In contrast to those of the weather-beaten farmers: ‘we don’t need your handouts. Just give us fertiliser. We will do the rest’) Once the camps in Galle Face were destroyed by the MR goons, they were re-built in no time. Who provided the funds and the organisation for this? When the leaders of the Opposition came to inspect the carnage left by the MR goons, Sajith Premadasa was hooted, attacked and had to be rescued, whereas the JVP leader was welcomed. Non-party? Apolitical? How is it that within hours of Gota Go Gama being attacked, houses and offices of government MPs were looted and burned by mobs, in widely different parts of the country? This was obviously done according to a pre-planned list. Some of the affected members never came anywhere near the Temple Trees.

Gota Go Home – and then what?

People who shout themselves hoarse have not stopped to contemplate the above question. The phrase has become a meaningless sound bite rather than a genuine demand for change. If one is demanding to get rid of something, one must have a clear idea of a credible alternative. The shouting masses have none. They have become mouthpieces of the anarchists in the background, who simply want disorder.

Sadly, the Parliamentary Opposition is no better. The response of the SJB and in particular that of Sajith P has been pathetic. Whereas he is good at working himself to apoplexy that Gota should go, he is blissfully silent on what happens next. When MR resigned, as the Leader of the Opposition, he was the natural heir. Yet he was pussy-footing around and drawing up some absurd ‘conditions’ for him to accept the mantle. Maybe he believed he was the only ‘suitor in town’. When the word got around that Ranil was going to be sworn in, he panicked and sent an urgent message to the President that after all, he was ready to be sworn in next morning. Too late. Ranil has already ‘run away’ with the bride and was already honeymooning.

All those who are demanding ‘Gota Go Home’ simply have no idea of its consequences. It is sad to see some responsible society and religious leaders, who should know better making the same demand. According to the Constitution (Clause 31.3.a.1) the President cannot call for an election before the expiry of four years of his term. If he dies in office or resigns, the PM will serve out the term (as D B Wijetunga did when R Premadasa was killed). Next in line to succession to the interim Presidency, is the Speaker! God help us!

Similar provisions in the Constitution prohibit the dissolving of the Parliament before the expiry of four years. Even more idiotic demand of the Galle Face crowd is for ‘all 225’ to go. If they do, it would be a one-man Presidential rule in the interim. Is that acceptable?

The only way to elect a new President or a new Parliament, is for the current one to approve such by a 2/3rds majority. Can you see turkeys voting for Christmas? In any event, is this the time to hold an election? What madness is this?

The crying need of the hour is a stable government, followed by Law and Order. The need for the former was brilliantly expressed by the new Governor of the CB (paraphrasing): ‘For heaven’s sake give me government, any government as long as it is stable. The foreign aid agencies demand it. Nothing will be forthcoming without a stable government. Otherwise, I might as well pack up and go back’.

Ranil has offered to provide same while others are too busy talking. For heaven’s sake, let us give the man a chance! We need a war-time mentality. Political legitimacy is less important now than a willingness to put one’s head on the block, experience and international recognition and respect. Ranil has all these. Some amuse themselves by mocking that he did not win his own seat; they must ask themselves, how did the lot who won 2/3rds of the seats perform? To those who questioned his legitimacy, he has correctly invoked Churchill, who would never have become the PM had it not been for the war. Fellow Tories did not like him and hated his guts. He became the wartime leader only because the Labour leader Attlee told the Sovereign that Churchill was the only Tory, he was willing to serve under.

What now?

Now is the time for all politicians of ability to come forward and support the new interim government. Let them stop preaching and start working. The likes of Harsha de Silva, instead of touring TV studios national and international, should come forward and show what he can do, rather than preach. Unfortunately, the supine and introspective leadership of the SJB prevents him and others from doing so. SP is behaving like the proverbial dog on the haystack. Some have already dared to break free. I hope others would follow.

The new interim government must publish a road map with an approximate timeline on how they plan to get us out of this mire.

The President must stick his head out of his tortoise shell and make a definitive statement to the effect that:

He is NOT going, but staying to sort out his own mess;

He has electoral legitimacy bestowed upon him by the people and this could only be taken away by the very same people and not by a motley of people shouting slogans in the street, however upset or loud they may be;

Along with legitimacy comes responsibility; while apologizing for the past errors, he firmly intends to fulfil his responsibility and live up to the oath he took under the Sri Maha Bodhi;

He is happy to work with anybody who is willing and able to achieve this end;

When the time is ripe, he will call for elections;

In the meantime, he firmly intends to take back control of the streets from the mobs – spontaneous or orchestrated, so that peaceful civilian life will prevail;

Looting and destruction of the property will be firmly dealt with and any looters will be shot on sight.

The religious and society-elders should cut down on pontificating on the TV and offer their advice to the new government, even if behind the scenes. They must also desist from continuing to provide unqualified support and solidarity to the protesters at the Gota Go Gama and preach to them about the realities of life as opposed to the ideal and fanciful.

The TV channels should stop rushing camera crews to wherever there is trouble and disorder and from playing such images over and over again, ad nauseam. This could only provoke copy-cat episodes.  Internationally, now we need positive images of cooperation and collaboration instead of negative and destructive ones.

The ex-pats must help by sending in dollars through the banking system and start talking positively about our country, rather than keep shaking our heads in despair.

So, what of the Aragalaya?

This is my message to the well-intentioned but misguided youth at the Gota Go Gama.

We salute your dedication and energy. Your efforts did make a difference. After all, you did manage to get rid of MR and his corrupt Cabinet (although your slogan was different)

But now is the time to STOP. Your slogans are beginning to sound silly. When you say ‘Gota go home’, ‘Ranil go home’, ‘all 225 go home’, who would be left to run the country? You?

Although up to now you have been the darlings of the media and lovable David of the masses, the TV channels would not keep sending crews to film you. The news agenda will move on (as it always does), and you will be demoted from the headlines to ‘news in brief’. Once the fuel starts flowing, people will be busy getting along with their lives. You will become an object of curiosity to the passers-by.

You are no longer in control, but being controlled. You are no longer telling, but being told. From an admirable patriotic protest, you are becoming a pantomime. Without realizing you have lost your two biggest strengths – being spontaneous and independent.

You have now become the visible arm of a dark invisible anarchic hard-left movement.

Finally:Children, it was good while it lasted. You had your say. You had your fun (and biriyani). All this time, you have been telling everyone else to ‘Go Home’. Now, the time has come for YOU, to:

GO HOME!

Dr Asoka Weerakkody

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