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SJB manifesto sidesteps constitutional reform

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by C.A. Chandraprema

The chapter on constitutional reform in Sajith Premadasa’s presidential election manifesto should have got even more attention than it did, but at the time it was released about two weeks before the presidential poll, rival candidate Gotabhaya Rajapaksa’s citizenship issue and Ven. Ududumbara Kashyapa Thera’s fast unto death over the MCC affair had pushed everything else into the background and it was unlikely that an esoteric subject like constitutional reform would come to the people’s attention in a major way. This time, Sajith’s parliamentary election manifesto has ducked the issue of constitutional reform altogether. That denotes a certain kind of politics.

Constitutional reform is one of the main platforms on which this election is being fought because the SLPP has been openly asking for a two thirds majority in order to effect constitutional reform. Sajith Premadasa’s presidential election manifesto was a complete and total capitulation to the TNA constitutional agenda. The absence of any constitutional proposals in the parliamentary election manifesto is obviously because the TNA is contesting separately and the SJB will not get any TNA votes at the parliamentary election. It’s frightening to see a main political party or at least the main faction of a mainline political party having a constitutional reform agenda predicated on winning votes. When votes are on offer, constitutional reform appears. When no votes are on offer constitutional reform disappears from the agenda.

Bartering constitutional  reform for votes

President R.Premadasa made the same mistake of bartering constitutional reform for votes when he reduced the district cut off point in the proportional representation system from 12.5% to five percent in order to obtain the support of the Sri Lanka Muslim Congress at the presidential election of 1988. The Fifteenth Amendment to the Constitution was signed into law just 48 hours before the Presidential poll on 19 December 1988. The damage this has done to the UNP itself and the country is incalculable. This made narrow minded ethnic politics possible in this country and has eroded the UNP’s minority vote base. Today the SJB is making the same mistake once again and this time, the repercussions will be even more serious because what is being bartered for votes is the very structure of the Sri Lankan state.

The need for constitutional reform is not an academic exercise. It’s a necessity. No political party other than the SLPP will be able to rule this country effectively without constitutional reform. The 19th Amendment has created a permanent state of war between the President and the Prime Minister. Today, things seem quite normal because the President is the brother of the Prime Minister in an extraordinarily close knit family which also has well established working arrangements among family members in politics. If Gotabhaya Rajapaksa had been defeated at the presidential election and Sajith Premadasa had won, Sajith would by now be at war with Ranil Wickremesinghe.

After the 19th Amendment, the president cannot hold any ministry. Yet under Article 30(1) the president is the Head of the State, the Head of the Executive and of the Government, and under Article 42(3) he is also the Head of the Cabinet. Though he is the head of the Cabinet, he cannot hold any portfolio. The Constitution after the 19th Amendment does not expressly say that the President cannot hold any portfolio. What happened is that the 19th Amendment repealed the old Article 44(2) which said that the President may assign to himself any subject or function and shall remain in charge of any subject or function not assigned to any Minister. Under the 19th Amendment, the President and PM have to share authority over the appointment of the cabinet.

According to Article 43(1) the President can in consultation with the Prime Minister, where he considers such consultation to be necessary, determine the number of Ministers in the Cabinet and the assignment of subjects and functions to such Ministers. But when appointing MPs as Ministers, Article 43(2) requires the President to act only on the advice of the Prime Minister. Article 43(3) states that the President may at any time change the assignment of subjects and functions and the composition of the Cabinet of Ministers. However due to Article 43(2), even when acting under Article 43(3), it appears that the President has to seek the PM’s views if he is going to change the assignment of subjects to any individual Minister. The 19th Amendment created a situation where the President, Prime Minister and even the Speaker of Parliament were left holding parts of executive power. The Speaker presides over the Constitutional Council which has a role to play in making appointments to important state positions.

The 19th Amendment has also given the Prime Minister a kind of security of tenure. Under article 42(4) the President appoints as Prime Minister the Member of Parliament who is most likely to command the confidence of Parliament. Once appointed, the President according to the provisions of article 46(2) cannot remove the Prime Minister from office. The only way in which the PM can be removed is if he resigns or ceases to be a Member of Parliament. Because things look normal now, most people would be lulled into underestimating the disruptive effect of such provisions. What has saved the day are the working arrangements that has always existed within the Rajapaksa family. That will not be easily replicated anywhere else and constitutional reform should be a priority for all political parties not just the SLPP. In fact it could be argued that in an immediate sense, the SLPP is the political party that needs constitutional reform least.

The single most dangerous provision in the 19th Amendment is the complete prohibition on dissolving Parliament before the lapse of four and a half years unless a resolution is passed by parliament with a two thirds majority calling for an early dissolution. Now the President cannot dissolve Parliament at his own discretion until the lapse of four and a half years, and neither can parliament be dissolved in the event of repeated defeats of the budget, repeated defeats of the statement of government policy or the repeated passage of no confidence motions against the government. This in a situation where the system of elections more often than not produces a winner without a clear majority in parliament. Except on two occasions in the past three decades, governments have had to be cobbled together after a parliamentary election.

In 2001, when the parliamentary government cobbled together in that fashion by President Chandrika Kumaratunga began to fall apart, the President dissolved parliament and after the ensuring election, the UNP obtained the most number of seats and cobbled together a new government. This process ensured that the country did not descend into anarchy as the parliamentary government lost the ability to govern. Today that safety mechanism has been removed. If at some point into a government, its parliamentary majority falls apart, the President is required to somehow cobble together a majority and continue till the completion of four and a half years – an impossible task.

Housekeeping issues

There are many housekeeping issues in the 19th Amendment that need to be sorted out as well. If anyone asks a member of the Elections Commission whether they are responsible to Parliament in the discharge of their duties, they wouldn’t know. Article 41B(6) states that the Election Commission is not responsible and answerable to Parliament while Article 104B(3) says it is responsible and answerable to Parliament. If this goes before the Supreme Court, the only way that the SC will be able to decide between Article 41B(6) and Article 104B(3) is perhaps by tossing a coin! Everyone has heard of the situation where the membership of the Elections Commission is three and the quorum is also three but if the Chairman is absent, the remaining members can elect a Chairman and hold a meeting.

There are means of removing members of the independent commissions in the event of misconduct. Even in the case of the members of the Judicial Services Commission, which is made up of the Chief Justice and the two most senior Judges of the Supreme Court, Article 111E(6) states that the President may, with the approval of the Constitutional Council, and for cause assigned, remove from office any member of the Commission. A similar provision exists for the removal of the members of the Police Commission. The way that members of the Elections Commission can be removed is through an order of the President made after an address of Parliament supported by a majority of the total number of Members of Parliament including those not present.



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Politics

The British will not learn English, let’s not kid ourselves

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The UK and others hell-bent on censuring Sri Lanka for imagined war crimes frequently refer to documents that are based on a report issued by a ‘panel of experts’ appointed by Ban Ki-moon. The Darusman Report is what it is called. There are lots of claims in that document but no one can claim that any of it was ‘independently confirmed.’ The sources will remain a mystery for years to come. In the United Kingdom, they’ve not heard of the word ‘contradiction’ it seems. Certain things that are partisan and come unconfirmed are permissible whereas other stuff that’s independent (unless the UK actually sided with the Sri Lankan security forces in the last days of the war on terrorism) are out of order.

by Malinda Seneviratne

The United Kingdom, it is reported, has rejected Sri Lanka’s request for the disclosure of wartime dispatches from its High Commission in Colombo. Sri Lanka had made the request during the 46th Session of the United Nations Human Rights Council (UNHRC) in Geneva a few weeks ago.

The dispatches from the then British Defence Advisor, Lt Col Anthony Gash were never referred to in any of the many ‘studies’ on Sri Lanka’s bloody struggle against terrorism. Indeed no one would have known of them or what they contained if not for Lord Naseby invoking the UK’s right to information laws to obtain them.

Gash’s dispatches clearly prove that there were no war crimes committed by Sri Lankan security forces, certainly not the kind that the terrorist lobby (strangely or perhaps not so strangely bed-fellowing with rogue states such as the UK and USA) and indeed these bed-fellows claim have been perpetrated.

British authorities pretended for years that there was no such information available. Now they can’t deny these dispatches exist. And therefore they’ve come up with an interesting disclaimer. The UK now faults Gash for not obtaining independent confirmation of reports he had sent to the Foreign and Commonwealth Office (FCO). Key word: ‘now.’ This was NOT the position originally taken by the FCO.

Alright, let’s take the CURRENT position at face value. Couldn’t the UK table the dispatches in all relevant forums with such caveats/disclaimers? That’s just one issue. There’s another. Yes, the business of ‘independent confirmation.’ What’s independent and what’s confirmation?

The UK and others hell-bent on censuring Sri Lanka for imagined war crimes frequently refer to documents that are based on a report issued by a ‘panel of experts’ appointed by Ban Ki-moon. The Darusman Report is what it is called. There are lots of claims in that document but no one can claim that any of it was ‘independently confirmed.’ The sources will remain a mystery for years to come.

In the United Kingdom, they’ve not heard of the word ‘contradiction’ it seems. Certain things that are partisan and come unconfirmed are permissible whereas other stuff that’s independent (unless the UK actually sided with the Sri Lankan security forces in the last days of the war on terrorism) are out of order.

It seems to me that the authorities in the UK don’t know whether they are coming or going. Well, maybe they do know that they are severely challenged in logic, in intellect, in moral standing etc., but believe that the world someone does not notice. A third possibility: they just don’t care.

The United Kingdom, with respect to the UNHRC resolution and all matters relevant to it, then, hasn’t exactly covered herself in glory, but what of that considering that shamelessness is the blood-stained batch on its coat of arms, so to speak?

Let’s humor them, though. There’s a lady called Sarah Hulton. Let’s assume she knows English. Let’s assume she has some skills in language comprehension. Let’s not assume she values truth, justice and being honorable for we shouldn’t kid ourselves too much. Nevertheless, we can ask some questions.What’s the value of hearsay? Do we discard ‘word’ and if so which words? If we pick some words and junk others, what criteria should we employ? The Darusman Report, for example, is ALL ABOUT HEARSAY. We have to assume that until we know who said what, for only then can we talk of reliability of source.

We have reports that toss out random numbers without a shred of substantiation. Is that OK, Ms Hulton? If Gash is unreliable, how can any report based on some other report that is based on hearsay be okay?

Let’s not kid ourselves. This is not about truth and reconciliation. The United Kingdom values lie over truth, injustice over justice, violation of all basic tenets of humanity over their protection, theft over property rights, plunder over protection. The British are yet to reconcile themselves regarding the many crimes against humanity they have perpetrated or, at least, benefited from. Seeking justice and truth from such people is silly. Seeking honor from the dishonorable is silly.

And yet, in Geneva and in other places where bucks and bombs count more than truth and justice, countries like the United Kingdom will prevail. For now. For now, we must add, for we know that nothing is permanent. For now, the reports of idiots and/or the politically compromised will be valued over those of impartial, dispassionate individuals such as Gash.

Let’s get this right. The British are not just bullies. They are cowards. Intellect is not their strong point or even if they are sophomoric at best, they are bullish enough to push aside the truth. It’s about ‘by any means necessary’ but obviously not in an emancipatory sense of that phrase, as used by Malcolm X. So when they talk of truth and justice, reconciliation and peace and other such lovely things, let’s keep in mind that it’s all balderdash. When they talk of ‘victims’ it is nonsense because without ‘wrongdoing’ that’s established, there can be no ‘victims’. Mr Hulton is not sleeping ladies and gentlemen. The United Kingdom is not sleeping. The Foreign and Commenwealth Office in that country is not sleeping. They are pretend-sleepers. They cannot be woken up.

One is reminded of a song from ‘My fair lady,’ the musical based on George Bernard Shaw’s ‘Pygmalion’. Why can’t the English teach their children how to speak? That’s the title of the song. When the English learn English — now that would be the day! Right now they speak some garbled language devoid of any logic or reason. It works for them.

Colonial-speak is a possible name for that language. It is an excellent communications device in all things antithetical to the high ideals, the furtherance of which was the reason for the establishment of the UNHRC. Indeed that has become the lingua franca of Geneva. The British know this French, pardon the irony! Ms Hulton knows it, as do her bosses in London as did their ancestors whose crimes against humanity are left out from the history books.

We are not talking of the past though. It’s the present. It’s ugly. As ugly as the past, only it’s come wearing other clothes. Nice ones. Not everyone is fooled though.

malindasenevi@gmail.com. www.malindawords.blogspot.com.

[Malinda Seneviratne is the Director/CEO of the Hector Kobbekaduwa Agrarian Research and Training Institute. These are his personal views.]

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Conversation with Lee Kuan Yew at Anuradhapura

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One day President JRJ telephoned me from Nuwara Eliya. He was wont to occasionally telephone me direct in the past. He informed me that PM Lee Kuan Yew would be arriving in Anuradhapura two days later, with Minister Gamini Dissanayake in attendance. I was to give the PM of Singapore the ancient city treatment for 40 minutes, and to remember to show him where Fa Hien the Chinese pilgrim cried, during his sojourn at the Abhayagiri monastery.

So I arrived at the appointed meeting place, the Tissawewa rest house where the Singapore PM and his party were having refreshments. I saw Murthy of the Overseas Service, who told me that I was expected, and that both the Singaporean PM and his wife were “top lawyers” who were educated at Cambridge. I was to expect searching questions. 

I went upstairs to see a long table replete with refreshments, Lee Kuan Yew seated at the centre and Gamini D. standing by. I addressed him in Sinhalese, identified myself as Raja de Silva and said that I had come to guide the visitors around Auradhapura. At this point the following conversation took place:

Minister Gamini to Lee Kuan Yew: This is Raja de Silva of the Archaeological Department who will be acting as our guide.  

LKY to RHdeS:

Are you in charge of this station?

RHdeS:

It comes under my archaeological control, Sir.  

LKY:

Are you in charge of this district? 

RHdeS:

The district comes under my archaeological control, Sir. 

LKY:

Are you in charge of this Province?

RHdeS :

This Province and the whole country comes under my archaeological control, Sir. 

LKY (looking satisfied):

Where did you learn your stuff?

RHdeS:

In an old university in England.

LKY:

Where was that?

RHdeS:

In Oxford, Sir. 

LKY:

Whatever reason did you go there for? 

RHdeS:

Sir, for the same reason you went to Cambridge. 

LKY (all smiles, turning to his wife):

Did you hear that? He has gone to Oxford. 

From then on the PM of Singapore spent much time at certain spots and my 40 minute time limit was ignored. At one point in the Abhayagiri area, at the splendid remains of an image house, the following dialogue took place. 

RHdeS:

It was here that Fa Hien,  the Chinese pilgrim, saw a donatory. Chinese silk flag and his eyes were brimful of tears. 

LKY:

Your President told me about that. 

It was altogether an enjoyable outing. 

 

Raja de Silva

Retired Commissioner of Archaeology

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The New Old Left turns 50

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by Malinda Seneviratne

Revolutionaries, self-styled or otherwise, are hard to imagine as old people, the exception of course being Fidel Castro. Castro grew old with a Cuban Revolution that has demonstrated surprising resilience. Che Guevara was effectively stilled, literally and metaphorically when he was just 39, ensuring iconic longevity — and the wild haired image with a star pinned on a beret is a symbol of resistance and, as is often the case, used to endorse and inspire things and processes that would have horrified the man.

Daniel Ortega at 75 was a revolutionary leader who reinvented himself a few decades after the Sandinistas’ exit was effectively orchestrated by the USA in April 1990. He’s changed and so has the Sandinistas. Revolutionary is not an appropriate descriptive for either.

Rohana Wijeweera is seen as a rebel by some, naturally those who are associated with the party he led for 25 years, the Janatha Vimukthi Peramuna (People’s Liberation Front), widely referred to by its Sinhala acronym, JVP. He led two insurrections and was incarcerated alive on November 13, 1989 in the Borella Cemetery during the UNP regime that held stewardship during the bloodiest period in post-Independence Sri Lanka.

If he was alive today, he would be almost 78-years old. Imagination following the ‘ifs’ probably will not inspire comparison with Castro or Che. Not even Ortega, for the Nicaraguan actually helped overthrow a despotic regime and, as mentioned, succeeded in recapturing power, this time through an election.

Wijeweera did contest elections, but he is not remembered as a democrat. Neither he nor his party showed any success at elections during his leadership. In any event, as the leaders of what was called the ‘Old Left’ as well as people who are seen as ‘Left Intellectuals’ have pointed out, the 1971 insurrection was an adventure against a newly elected government whose policy prerogatives were antithetical to the world’s ‘Right.’ As such, although the JVP had the color and the word right, moment and act squarely placed it as a tool of the capitalist camp, it can be argued.

As for the second insurrection, the JVP targeted leaders and members of trade unions and political parties who, although they may have lost left credentials or rather revolutionary credentials, were by no means in the political right. That such individuals and groups, in the face of the JVP onslaught, ended up fighting alongside the ‘right’ is a different matter.

Anyway, this Sunday marks the 50th anniversary of the first insurrection launched by the Wijeweera-led JVP. Of course that ‘moment’ was preceded by preparation and planning that was good enough to catch the United Front government led by the SLFP by surprise, but the entire adventure needs to be examined by the longer history that came before.

Wijeweera belonged to what was called the Peking Wing of the Communist Party, formed after the USSR and China parted political/ideological ways. When Wijeweera broke away from the Peking Wing he was barely out of his teens. What he and others dubbed as the ‘Old Left’ were at the time seen as having lost much of its previous revolutionary zeal. Entering into pacts with the ‘centrist’ SLFP gave credence to this perception. There was, then, a palpable void in the left half of the political spectrum. Wijeweera and the JVP sought to fill it.

It’s easy to play referee after the fact. April 4, 1971 was inauspicious one could argue. The entire strategy of capturing police stations, kidnapping/assassinating the Prime Minister, securing control of the state radio station etc., describe a coup-attempt rather than a revolution. There was no mass movement to speak of. There wasn’t even anti-government sentiment of any significance.

Nevertheless, it was an important moment. As Prof Gamini Samaranayake in his book on the JVP pointed out, the adventure revealed important things: a) the state was weak or rather the security apparatus of the state was weak, and b) armed struggle was now an option for those who aspired to political power. Indeed these two ‘revelations’ may have given some ideas to those Tamil ‘nationalists’ who would end up launching an armed struggle against the state and would so believe that victory was possible that they would try their luck for 30 long years!

Had April 4 not happened, would we have ever had an armed insurrection? If we did, would it have been different from April 1971 and 1988/89? That’s for those who enjoy speculation. Maybe some creative individual with an interest in politics and thinks of producing fiction based on alternative realities might try his/her hand at it. It would probably make entertaining reading.

The April 4 adventure ended in an inglorious defeat. Wijeweera himself was captured or, as some might claim, planned to be captured (a better option than being killed, as hundreds of his followers were). The captors did not know who he was until he himself confessed. He spilled the beans, so to speak, without being urged to do so.

The JVP, thereafter, abandoned the infantile strategy adopted in April 1971. The party dabbled in electoral politics for a while after J.R. Jayewardene’s UNP offered a general pardon that set Wijeweera free. Wijeweera and the JVP would focus mostly on attacking the SLFP thereafter. Others who were arrested opted go their individual ways. Some went back to books and ended up as academics (Jayadeva Uyangoda or ‘Oo Mahaththaya’, Gamini Keerawella and Gamini Samaranayake for example).

Others took up journalism (Victor Ivan alias Podi Athula and Sunanda Deshapriya). A few joined mainstream political parties (e.g. Loku Athula). Many would end up in the NGO sector (Wasantha Dissanayake, Patrick Fernando and Sarath Fernando). Their political trajectories, then, have been varied.

The JVP is still around. For the record, the ‘Old Left’ is still around too, although not as visible as the JVP. We still have the CP (Moscow Wing) and LSSP, as well as their off-shoots. Individuals who wished to be politically active, either joined the SLFP or the UNP or else were politically associated with such parties, even if they didn’t actually contest elections.

The JVP still talks of Wijeweera but this has been infrequent. It’s nothing more than tokenism, even then. The party has politically aligned itself with the SLFP and the UNP at different times and as of now seems to have been captured by the gravitational forces of the latter to a point that it cannot extricate itself or rather, finds itself in a situation where extrication allows for political crumbs and nothing more. The Marxist rhetoric is gone. Red has been replaced by pink. There’s no talk of revolution.

The high point in the post-Wijeweera era was returning some 40 members to parliament at the 2004 elections in a coalition with the SLFP. However, the decision to leave the coalition (UPFA) seems to have been the beginning of a serious decline in political fortunes. It demonstrated, one can argue, the important role that Wimal Weerawansa played in the party’s resurgence after the annihilation of the late eighties. In more recent times, the party suffered a more serious split which had a significant impact on its revolutionary credentials. The party’s radicals broke ranks and formed the Frontline Socialist Party, led by Kumar Gunaratnam, younger brother of the much-loved student leader Ranjithan (captured, tortured and assassinated sometime in late 1989).

The JVP, led by Anura Kumara Dissanayake, has done better than the FSP in elections thereafter, but the split also saw the former losing considerable ground in the universities, the traditional homelands of recruitment if you will. The spark went out as well. There’s palpable blandness in the affairs of the party. At the last general election the JVP could secure just 3% of the vote.

The JVP is old. Too old to call itself the ‘New Left’ (by comparing itself with the LSSP and CP). The FSP is ‘new’ but it poses as the ‘real JVP’ and as such is as old. There’s nothing fresh in their politics or the ideological positions they’ve taken. In fact one might even argue that now there’s no left in the country. It doesn’t mean everyone is in the right either. There’s ideological confusion or, as some might argue, ideology is no longer a factor in Sri Lankan politics. It’s just about power for the sake of power. That’s not new either, but in the past ideological pretension was apparent whereas now politics is more or less ideology-free. Of course this means that a largely exploitative system and those in advantageous positions within it are the default beneficiaries.

Can the JVP reinvent itself? I would say, unlikely. There’s a name. It’s a brand. It’s off-color. It is politically resolved to align with this or that party as dictated by the personal/political needs of the party’s leadership. Wijeweera’s son Uvindu is planning to jump-start the party with a new political formation, but adding ‘Nava’ (new) doesn’t make for the shaving off of decades. Neither does it erase history. Its potential though remains to be assessed. Maybe a decade or two from now.

So, after 50 years, are we to say ‘we had our first taste of revolution or rather pretend-revolution and that’s it’? The future can unfold in many ways. A half a century is nothing in the history of the world. It’s still nothing in the history of humankind. Systems collapse. Individuals and parties seemingly indestructible, self-destruct or are shoved aside by forces they unwittingly unleash or in accordance with the evolution of all relevant political, economic, social, cultural and ecological factors.
People make their history, but not always in the circumstances of their choice. The JVP is part of history. They were in part creatures of circumstances and in part they altered circumstances. Left a mark but not exactly something that makes for heroic ballads. Time has passed. Economic factors have changed. Politics is different. This is a different century and a different country from ‘Ceylon’ and the JVP of 1971.

The JVP is not a Marxist party and some may argue it never was, but Marx would say that a penchant for drawing inspiration from the past is not the way to go. One tends to borrow slogan and not substance that way. April 4, 1971. It came to pass. It was followed by April 5. The year was followed by 1972. Forty nine years have passed. A lot of water has flowed under the political bridge. Good to talk about on anniversary days so to speak. That’s about it though.

malindasenevi@gmail.com. www.malindawords.blogspot.com

 

[Malinda Seneviratne is the Director/CEO of the Hector Kobbekaduwa Agrarian Research and Training Institute. These are his personal views.]

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