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PLAYING FOOTBALL WITH OUR CONSTITUTION

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by ASOKA SENEVIRATNE
Washington DC.

1978 Constitution: Our constitution is once again set for amendment for the 20th time within 42 short years. The 1978 JRJ constitution moved us away from the Westminster model to a more US-like model with the creation of the so called three co-equal branches; legislative, executive and judicial. The three branches were meant to be independent and watch over each other. The power of the purse was left to the legislature while the power to govern was the job of the executive. The judicial branch was meant to be the custodian of the constitution and the laws to ensure that the Rule of Law was ensured.

The 1978 constitution was full of holes and was self-contradicting. The legislature had the power of the purse while the executive appointed ministers to his leadership team, the cabinet. This simple ill-advised provision high-jacked the independence of the legislature. Compare this to the US constitution, wherein members of the legislature are not allowed to hold office within the executive branch. So we experienced a ton of meaningless ministers appointed by the executive to win them over. A rampant waste of money we don’t have.

Moreover, JRJ created the Provincial Councils, District Development Councils, Governors etc. and all for what? Just to manage a 25,000 sq. mile island? What an administrative mess he created. Nobody knew who did what! The entire administration apparatus was a gigantic wasteful mess with overlapping responsibilities. The public watched while their towns became yet another unplanned bunch of shops with broken sidewalks, open drains potholed roads and a barely functional and lethargic local beaureaucracy who don’t care a darn. The bosses in those local bodies were not in their offices while a frustrated public were left with no answers to their basic problems. Files were gathering dust on the boss’s desk; a simple bribe will locate lost files.

JRJ gave immense power to his office and bragged that the only thing he could not do was to turn a man into a woman. But who had oversight over the executive? The legislature whom he hijacked? Besides if the Executive is the all-powerful party leader, which member of his party would want to deny him money or cross his path? We lost accountability and transparency. This led to unprecedented corruption. There was no mechanism for oversight over the president, his cabinet or his bureaucracy. Rot began to set in to our political culture to the point that after 42 years people are simply fed up of corruption from the top to bottom.

The epitome of this level of corruption was when the central bank was robbed with the last regime just a few months into power. Millions were spent on a presidential investigation but nobody was indicted nor the findings made public. Everybody knows that this was not the only mega robbery. Billions of public money went unaccounted for. JR’s so called independent judiciary was hijacked by the top cop, the Attorney General coming under political pressure. The entire law enforcement apparatus was politicized. Police were not allowed to do the job they swore an oath to do. JR’s independent judiciary was a myth. So the entire JRJ experiment was just hog wash and dragged our government’s apparatus into historical levels of corruption.

 

National character

Besides being a 2,600 old civilization, can we be proud of our national character? Buddhist monks wearing the much revered saffron robe use thug-like language on national TV and in public with monks kidnapping monks in the fight for a seat in the legislature and monks attacking fellow citizens in broad daylight. This is unprecedented. Isn’t the essence of Buddhism elimination of craving? Huh!

Elected leaders are openly attacking private lives of each other or using abusive language in rallies instead of addressing much needed policy to fix our nation’s problems. They brazenly violate the law on national television. Remember the minister who grabbed the camera of a TV reporter and also tied a public servant to a tree? He was never indicted. Where was the Attorney General? Where was the police? Was this not because of the politicization of out law enforcement apparatus? JRJ constitution was not equipped to deal with this. Was it not a joke?

Worse, remember members of the legislature behaving like a herd of cattle in front of the nations’ eyes just a couple of years ago. They too hurled ugly verbal abuse at each other without debating policy and yelled other like street thugs while the House was in session. What happened to common decency and mutual respect at least while inside the nation’s supreme assembly? Is this the example the leaders set to our youth? Is this how we would like to define our national character? what happened to our nation? What happened to honor and common decency? Who is responsible?

 

President Rajapaksa

Never has our nation been led by a leader like Gotabaya Rajapaksa. He has the right thinking, approach and policies to rescue our nation from this sad state. He has a full plate. For the brief period he has been in power he has displayed competence and good judgment. He made the massive electoral victory for his party possible. He is confronted with a mammoth task created by mismanagement by all previous leaders. He appears fearless about achieving his goals. However, he is definitely challenged by at least some of the members of the new parliament who see politics as business as usual – gettting a luxury vehicle, getting a luxury bungalow, appointing family and friends to top jobs, wasting precious time at five star receptions, and virtually doing nothing much to help the nation but adding to its massive debt burden. It cannot be business as usual. The nation is in peril in every which way.

 

20th Amendment

The constitution of a nation is a sacred document . It is the national script. It defines our fundamental rights and obligations. It basically defines who we are as a nation. It is not meant to be amended every five years to suit the party in power. Instead it is meant to protect the nation against tyranny, abuse and excesses by rulers among other things.

For God’s sake let our constitution, including the proposed 20A be in simple and concise language. The US constitution which is the oldest in the world and written over 230 years ago only had 4,543 words and only 27 amendments to date. I quote the US constitution because it stands out as the founding document of the most successful nation the world has ever seen. The document in very simple language makes it possible for almost anybody to read and understand it. The constitution need not be filled with legal jargon and wrap around provisions, edits and exceptions. Just try and read the 19A and see how complicated it is. I am not sure if even some lawyers can comprehend it. Get rid of the office of the prime minister. Why do we need a costly prime minister when the executive power is vested with an elected president? Get rid of provincial councils. Get rid of governors. Get rid of chief ministers. Get rid of the nonsensical PR system. Get rid of state ministers. Get rid of MP’s appointed as ministers. Their job is to legislate and see to the welfare and development of their electorates.

The president’s leadership team or the cabinet should be made up of proven experts in their field from the private sector, military and state sector. The president can run his administration with the GA’s and grama niladharis. Use technology. Streamline processes. Hold ministers accountable with public hearings by committees from the legislature. Makes sure members of these committees know their constitutional responsibilities and not just loyalty to their parties. Sorry, but that is how a good democracy is supposed to work. Create a post of independent Inspector General in each ministry, appointed by the elected president whose job it is to watch over waste, fraud and abuse. He or she will be a watch dog on behalf of the president and the public.

Do not remove the independent commissions created by 19A. That was a great idea and Rail and Sirisena deserves credit for it. Do not change the term limits of the president. Countries have learned bitter lessons from leaders who remain in power for ever and ever. That includes USA too who enacted 22nd Amendment to create term limits after FDR displayed undesirable, high handed attitudes. The proposed 20A should not be a document merely discussed by the cabinet. It is too sacred not to deserve a large public debate. It should be debated over the local media so we can get it right. If not the next government will amend it again to suit itself.

Remember cabinet decisions are mostly the decisions of the leader of the cabinet. Do you think our cabinet members are free to challenge the leaders without losing their jobs or getting kicked out of the party? Thank you JRJ! You were so smart!!! People have respect for President Gotabaya and his ability to make correct decisions. That is also why his party won hugely. He has the noble task of amending the constitution to suit the country, not the party. Done right, he will be in the history books. Done wrong, he will go down in history as just another leader who played party politics just to remain in power!

I personally think Gota is better than that. May he have the wisdom to do right by his troubled nation!



Features

Whither the rules-based order?

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by Andrew Sheng
for Asia News Network

Every day, we are told we must defend the rules-based order. But whose order? What rules? Why should we defend an order if we did not have a say in shaping?

All this is in the realm of politics and geo-politics. The biggest thinker who shaped the current neoliberal order was Austrian philosopher Friedrich Hayek (1899-1992), whose ideas of classical liberalism of freedom, democracy and self-order of markets dominated global relations. Neoliberalism was put into practice in the 1980s, when US President Ronald Reagan and British Prime Minister Margaret Thatcher pushed through the free market philosophy that swept away Keynesian state intervention of the 1950-1970s.

The deeper thinker on the whole question of constitutional law, politics and international order was German jurist Carl Schmitt (1888-1985), whose influence on conservative political circles in almost all the Big Powers has been growing. I only became aware of Schmitt’s work when Noema magazine wrote an editorial on Schmitt’s Nomos of the Earth (1950). Schmitt is controversial, because he essentially wrote the legal basis for Nazism in the 1920s, which accounts for his ostracization (in today’s language “cancelled”) from academic circles for decades.

Schmitt was a brutally realist thinker who explored the legal foundations of European political theory. Schmitt argues that no order can function without a sovereign authority. A state is legally constituted when the politics distinguishes between friend and enemy and when the citizens are willing to fight and die for its identity. The state alone is given the power of violence (and enforcement) by the citizens to enforce the law.

Schmitt is considered an authoritarian supporter, because he saw sovereign power resting ultimately in the Executive (rather than the Legislature or Judiciary) because the sovereign (i.e. the President) decides on the exceptional situation, where he/she must suspend the law because of war or assume emergency powers in order to restore order. Decisions by the Executive are either bound by law or bounded by his or her moral bearings.

The world is today watching on TV whether former President Trump is morally culpable for causing the January 6, 2021 riots, or legally culpable. The Ukraine war is being supported by NATO on a matter of moral principle for a non-member, but if the war escalates to nuclear global destruction that kills all, how do we trade off the individual rights with the collective right of everyone else to survive?

Schmitt dissected the European constitutional laws and international order, dividing them into three phases: pre-1500, 1648 to 1919 (World War I) and thereafter. Before the discovery of America, European powers fought each other under a religious cloak, since the Pope decided on disputes of rights on moral grounds. Indeed, it was the Papal Bulls of 1455 and 1493 that authorized the Portuguese and Spaniards to conquer all lands and seize and enslave Saracens and non-Christians in the Americas, Africa and Asia. The religious rationales comprised the Domination Code whereby Christians can rule over non-Christians and possess their property, as well as the Discovery Code, whereby lands owned by non-believers are treated as terra nullius (empty land), meaning non-Christian indigenous peoples do not have rights.

But when the Dutch and English started fighting with the Portuguese and Spaniards over overseas territories, what was the legal justification? Dutch jurist Grotius (1583-1645) provided the secular rationalisation that discovery alone is not enough, but since there was freedom in the seas, occupation by a sovereign state confirms rights seized through war. Schmitt argued that Jus Publicum Europaeum (European Public Law) emerged after the 1648 Treaty of Westphalia to allow sovereign countries to have the right to go to war based on their own judgement of justice and necessity without interference in each other’s domestic affairs. This changed after the end of the First World War, when the 1919 Treaty of Versailles treated the losing side as criminals, with their rights cancelled or confiscated.

Whilst the Europeans were busily fighting each other, the United States rose in global power and imposed her 1823 Monroe Doctrine that asserted that she has her own sphere of influence, with the right to intervene in Central and South American states. That sphere of influence would spatially cover cultural, economic, military, political and today technology exclusivity beyond legal sovereign borders.

Schmitt was prescient in seeing that where war is fought on the basis of “good versus evil”, in which all rights of the other side are “cancelled” (like the foreign exchange assets of Afghanistan and Russia are frozen or seized), the situation may be an unstable equilibrium. The unstable European security architecture was settled decisively by the United States in two World Wars because of her overwhelming military, economic and industrial power. But in today’s multipolar situation, who decides on the rules of the international order? If both sides accuse the other side as evil and illegitimate, who decides other than the use of arms?

To cut a complex story short, the NATO military alliance, comprising nearly one billion people and 47.3 percent of world GDP (2020), assumes its status quo role as the final arbiter of the “rules-based order”. The problem is that BRICS countries, plus Indonesia have 3.5 billion population with one quarter of world GDP in market terms (25.6%). However, on GDP PPP terms, they are near parity with NATO and therefore may have their own views on the international order. What if the larger non-Western countries want their own version of the Monroe Doctrine?

The moral principle that all of us should live peacefully on one planet should override sovereign nations fighting over power and ego from turf to space, when humanity could be burned by climate warming or nuclear war. For Nomos (or order) of the Planet, rather than the Earth, we should all rationally cooperate. If we truly believe in democracy, can the eight billion people in the world vote on the rules-based order, or do we still leave it to G-7?

No order is stable without true legitimacy. How to achieve that order remains an open question.

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Features

Scarcity, prices, hoarding and queuing

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By Usvatte-aratchi

We live in a scarcity economy and will do so well into 2024, past the next Presidential elections if it comes then; it may not. (The new minister may open bets.) All economies are scarcity economies; otherwise, there would be no prices. We also live in plentiful economies; look at the streets of Tokyo, Shanghai, Singapore, Paris or San Francisco during day or night. Scarcity is a relative term, as most terms are. A scarcity economy is one where prices rise relentlessly, where cigarettes are more expensive in the evening than they were the same morning. Scarcity economies will have two or more sets of prices: one official, others in markets in varying shades of grey until black. Scarcity economies are where everyone (producers, traders, households) hoards commodities, hoards everything that can be hoarded, at reasonable cost. Scarcity economy is one where productivity is lower than it was earlier, where both labour and capital idle. Scarcity itself may push down productivity. Observe thousands of people standing in queues to buy all kinds of things whilst producing nothing. That is labour idling. Others hang on to dear life in crowded trains arriving in office late to leave early, to get to ill lit homes where to cook each evening they repeat what their ancestors did millions of years ago to light a fire. Money is one commodity that can be hoarded at little cost, if there was no inflation. The million rupees you had in your savings account in 2019 is now worth a mere 500,000, because prices have risen. That is how a government taxes you outside the law: debase the currency. In an inflation afflicted economy, hoarding money is a fool’s game.

The smart game to play is to borrow to the limit, a kind of dishoarding (- negative hoarding) money. You borrow ten million now and five years later you pay 500 million because the value of money has fallen. US dollars are scarce in this economy. It is hoarded where it can wait until its price in Sri Lanka rises. Some politicians who seem to have been schooled in corruption to perfection have them stored elsewhere, as we have learnt from revelations in the international press. Electricity is not hoarded in large quantities because it is expensive to hoard. Petrol is not hoarded very much in households because it evaporates fast and is highly flammable. That does not prevent vehicle owners from keeping their tanks full in contrast to the earlier practice when they had kept tanks half empty (full). Consequently, drivers now hoard twice as much fuel in their tanks as earlier. Until drivers feel relaxed as to when they get the next fill, there will be queues. That should also answer the conundrum of the minister for energy who daily sent out more bowser loads out than earlier, but queues did not shorten.

As an aside, it is necessary to note that the scarcity economy, which has been brought about by stupid policies 2019-2022, and massive thieving from 2005 is partly a consequence of the fall in total output (GDP) in the economy. Workers in queues do not produce. The capital they normally use in production (e.g. motor cars, machines that they would otherwise would have worked at) lie idle. Both capital and labour idle and deny their usual contribution to GDP. Agriculture, industries, wholesale and retail trade, public administration, manufacturing and construction all of which have been adversely affected in various ways contribute more than 75% of total GDP. Maha (winter crop) 2021-22, Yala (spring crop) 2022 and Maha 2022-23 and fishing are all likely to have yielded (and yield) poor harvests. Manufacturing including construction are victims of severe shortages in energy and imported inputs. Wholesale and retail trade which depend directly on imports of commodities have been hit by the sharp drop in imports. Tourism, which is more significant in providing employment and foreign exchange, collapsed dreadfully since late 2019 and has not recovered yet. About 16 percent of our labour force work in the public sector. They have failed to contribute to GDP because they did not engage in productive work due to variegated reasons. Teachers were on strike for two months in 2021. In 2022, so far government employees have worked off and on. Wages of government employees are counted as contributions to GDP, by those that make GDP estimates. However, here is an instance where labour was paid but there was no output equal to the value of those wages. Such payments are rightly counted as transfers and do not count to GDP. For these reasons estimates of GDP for 2021 must be well below the 2020 level. The 3.6 growth in official estimates is unlikely. The likely drop in 2022 will be roughly of the same magnitude as in 2021. These declines are not dissonant with misery one sees in towns and the countryside: empty supermarket shelves, scant supplies of produce in country fares, scarce fish supplies, buses idling in parks and roads empty of traffic. There have been warnings from our paediatricians as well as from international organisations of wasting and probable higher rates of child mortality. It is this sort of sharp fall in wellbeing that engenders the desperation driving young and ambitious people to obtain passports to seek a living overseas. You can see those from mezzo-America amassed on the southern border of US. Will our young men and women end up beyond the wall of China?

Of this lowered supply of goods and services, this society is expected to pay a massive accumulated foreign debt. (Remember the reparation payments in the Versailles Treaty). In real terms it will mean that we forego a part of our lower incomes. Do not miss this reality behind veils of jargon woven by financial analysts. It is not something that we have a choice about. That is where international help may kick in. Gotabaya Rajapaksa government after much senseless dilly dallying has started negotiations with the IMF. There is nobody compelling our government to seek support from IMF. They are free go elsewhere as some who recently were in their government still urge. Examine alternatives and hit upon an arrangement not because it permits the family grows richer but because it will make life for the average person a little less unbearable.

If prices are expected to rise people will seek resources to hoard: money to buy commodities, space and facilities to hoard, security services to protect the property and much more. Rice producers cannot hoard their product because animals large as elephants and small as rodents eat them up. Because of the unequal distribution of resources to hoard, the poor cannot hoard. In a scarcity economy, the poor cannot hoard and famines usually victimise the poor, first and most. If prices are expected to fall, stocks are dishoarded to the market and prices fall faster and deeper. In either direction, the rate at which prices change and the height/depth of the rise/fall depends on the speed at which expectations of change in prices take place. A largescale rice miller claims he can control the price of rice at a level that the government cannot. His success/failure will tell us the extent of his monopoly power.

When commodities are scarce, in the absence of a sensible system of coupons to regulate the distribution, consumers will form queues. A queue is rarely a straight here, nor a dog’s tail (queue, in French, is a dog’s tail which most often crooked). Assembled consumers stagnate, make puddles and sometimes spread out like the Ganges, with Meghna, disgorges itself to the Bay of Bengal. They sometimes swirl and make whirlpools and then there is trouble, occasionally serious. There is order in a queue that people make automatically. To break that order is somehow iniquitous in the human mind. That is why breaking the order in a queue is enraging. For a queue to be disobeyed by anyone is infuriating, and for a politician to do so now in this country is dangerously injurious to his physical wellbeing.

The first cause of rising prices, hoarding and queues is the scarcity of goods and services in relation to the income and savings in the hands of the people.

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Terror figuring increasingly in Russian invasion of Ukraine

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In yet another mind-numbing manifestation of the sheer savagery marking the Russian invasion of Ukraine, a shopping mall in Ukraine’s eastern city of Kremenchuk was razed to the ground recently in a Russian missile strike. Reportedly more than a hundred civilian lives were lost in the chilling attack.

If the unconscionable killing of civilians is a definition of terrorism, then the above attack is unalloyed terrorism and should be forthrightly condemned by all sections that consider themselves civilized. Will these sections condemn this most recent instance of blood-curdling barbarism by the Putin regime in the Ukrainian theatre and thereby provide proof that the collective moral conscience of the world continues to tick? Could progressive opinion be reassured on this score without further delay or prevarication?

These issues need to be addressed with the utmost urgency by the world community. May be, the UN General Assembly could meet in emergency session for the purpose and speak out loud and clear in one voice against such wanton brutality by the Putin regime which seems to be spilling the blood of Ukrainian civilians as a matter of habit. The majority of UNGA members did well to condemn the Russian invasion of Ukraine close on the heels of it occurring a few months back but the Putin regime seems to be continuing the civilian bloodletting in Ukraine with a degree of impunity that signals to the international community that the latter could no longer remain passive in the face of the aggravating tragedy in Ukraine.

The deafening silence, on this question, on the part of those sections the world over that very rightly condemn terror, from whichever quarter it may emanate, is itself most intriguing. There cannot be double standards on this problem. If the claiming of the lives of civilians by militant organizations fighting governments is terror, so are the Putin regime’s targeted actions in Ukraine which result in the wanton spilling of civilian blood. The international community needs to break free of its inner paralysis.

While most Western democracies are bound to decry the Russian-inspired atrocities in Ukraine, more or less unambiguously, the same does not go for the remaining democracies of the South. Increasing economic pressures, stemming from high energy and oil prices in particular, are likely to render them tongue-tied.

Such is the case with Sri Lanka, today reduced to absolute beggary. These states could be expected ‘to look the other way’, lest they be penalized on the economic front by Russia. One wonders what those quarters in Sri Lanka that have been projecting themselves as ‘progressives’ over the years have to say to the increasing atrocities against civilians in Ukraine. Aren’t these excesses instances of state terror that call for condemnation?

However, ignoring the Putin regime’s terror acts is tantamount to condoning them. Among other things, the failure on the part of the world community to condemn the Putin government’s commissioning of war crimes sends out the message that the international community is gladly accommodative of these violations of International Law. An eventual result from such international complacency could be the further aggravation of world disorder and lawlessness.

The Putin regime’s latest civilian atrocities in Ukraine are being seen by the Western media in particular as the Russian strongman’s answer to the further closing of ranks among the G7 states to the Russian invasion of Ukraine and the issues growing out of it. There is a considerable amount of truth in this position but the brazen unleashing of civilian atrocities by the Russian state also points to mounting impatience on the part of the latter for more positive results from its invasion.

Right now, the invasion could be described as having reached a stalemate for Russia. Having been beaten back by the robust and spirited Ukrainian resistance in Kyiv, the Russian forces are directing their fire power at present on Eastern Ukraine. Their intentions have narrowed down to carving out the Donbas region from the rest of Ukraine; the aim being to establish the region as a Russian sphere of influence and buffer state against perceived NATO encirclement.

On the other hand, having failed to the break the back thus far of the Ukraine resistance the Putin regime seems to be intent on demoralizing the resistance by targeting Ukraine civilians and their cities. Right now, most of Eastern Ukraine has been reduced to rubble. The regime’s broad strategy seems to be to capture the region by bombing it out. This strategy was tried out by Western imperialist powers, such as the US and France, in South East Asia some decades back, quite unsuccessfully.

However, by targeting civilians the Putin regime seems to be also banking on the US and its allies committing what could come to be seen as indiscretions, such as, getting more fully militarily and physically involved in the conflict.

To be sure, Russia’s rulers know quite well that it cannot afford to get into a full-blown armed conflict with the West and it also knows that the West would doing its uttermost to avoid an international armed confrontation of this kind that could lead to a Third World War. Both sides could be banked on to be cautious about creating concrete conditions that could lead to another Europe-wide armed conflict, considering its wide-ranging dire consequences.

However, by grossly violating the norms and laws of war in Ukraine Russia could tempt the West into putting more and more of its financial and material resources into strengthening the military capability of the Ukraine resistance and thereby weaken its economies through excessive military expenditure.

That is, the Western military-industrial complex would be further bolstered at the expense of the relevant civilian publics, who would be deprived of much needed welfare expenditure. This is a prospect no Western government could afford to countenance at the present juncture when the West too is beginning to weaken in economic terms. Discontented publics, growing out of shrinking welfare budgets, could only aggravate the worries of Western governments.

Accordingly, Putin’s game plan could very well be to subject the West to a ‘slow death’ through his merciless onslaught on the Ukraine. At the time of writing US President Joe Biden is emphatic about the need for united and firm ‘Transatlantic’ security in the face of the Russian invasion but it is open to question whether Western military muscle could be consistently bolstered amid rising, wide-ranging economic pressures.

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