by Harim Peiris
The proposed 20th Amendment to the Constitution is currently being challenged in the Supreme Court of Sri Lanka, on various legal grounds. With oral arguments finishing with the Attorney General’s submission early this week and only written rebuttals accepted thereafter, the determination of the Court is likely to be communicated to Parliament within the week. However, this article does not seek to examine the various legal issues being argued before Sri Lanka’s Supreme Court, but rather to examine the political dynamics which enabled the Government to engage in this complete overhaul of Sri Lanka’s state structures.
The proposed 20th Amendment seeks nothing less than the creation of an elected leader with all the powers of an absolute monarch, baring the need to be periodically re-elected. Sri Lanka is clearly nostalgic for its days of pre-colonial absolute monarchy. In fact, our 1978 constitution with its proposed 20th Amendment would be more centralizing than ancient Ceylon’s pre-colonial monarchies, set in another day and age, which had feudal structures with powerful nobles. In contrast the 20th Amendment will reestablish, a Prime Minister with no powers and Cabinet and state ministers with even less powers. The President will in essence appoint everybody, decide on every matter and would be beyond legal challenge, even on fundamental rights. The central argument of the government is that the 20th Amendment merely takes the country back to where it was with the 1978 Constitution and accordingly there is no problem. However, the reality is that the anti-democratic features of the 1978 Constitution and especially that of its overbearing executive presidency were so apparent that every president elected since 1994 has pledged to reform it and its lack of inclusion and democratic space, alienated large swathes of the population, from Sinhala rural youth to the Tamil community.
The UNP as the great enabler of the 20th Amendment
The UNP or rather its essential leader for life, former Prime Minister Ranil Wickremesinghe has been the great enabler of the 20th Amendment. Firstly, his steadfast refusal to cede the presidential nomination until days before the November presidential elections and then subsequently in the run up to the August parliamentary elections, scuttling the efforts to have a unified opposition alliance, so dented the political credibility of the opposition, that what would have been a close defeat, along the lines of the February 2018 local government election results, led instead to a complete route and a constitution changing two third majority in parliament for the SLPP.
The parliamentary elections resulted in the end of the United National Party (UNP), as a serious, national political entity, losing to its successor the Samagi Jana Balawegaya (SJB), by a resounding and unequivocal margin of 10 to 1, in the popular vote. The SJB garnering 2.7 million votes and fifty-four Members of Parliament, while the UNP got a little less than one tenth of that at about 250,000 votes country wide and going from being the largest party in parliament, to no district representation and a single national list seat, on which it cannot agree as to who would be the nominee. The refusal of Mr. Ranil Wickremesinghe, even at this late stage, to gracefully leave the field when the umpire has ruled him out and the third umpire has also concurred after review and perhaps busy himself with some international commitments, or an elder statesman’s role, for which he is eminently suited, has meant that Opposition Leader Sajith Premadasa has struggled to unify the opposition and create and present a cohesive and united opposition to the government. Resulting in the Rajapakse Administration indulging in significant political overreach in its proposed 20th Amendment.
The real political dynamics in the country are worse, from an opposition standpoint. What currently exists is a unified government and a divided opposition which enables government inflexibility and rigidity, even in the midst of some internal dissent. An internal dissent regarding the 20th Amendment exists from some very Sinhala nationalist sources, including Minister Wimal Weerawansa’s National Freedom Front, which stated that if its views expressed and the resultant recommendations of the Government committee, on which it leader served and which examined the 20th Amendment were ignored, it would not hold itself responsible for the political consequences.
The SJB needs to broaden
The SJB and Opposition Leader Sajith Premadasa did incredibly well under difficult circumstances, post the presidential election to annihilate the UNP at the ensuing general elections held recently and essentially capture the party in all but name, symbol and head office, none of which are the essence of politics. Sajith Premadasa’s great strengths are similar to that of his late father’s; the common touch, a strong grassroots appeal, a good sense of the Sinhala polity and boundless energy, all of which were lacking in the old UNP and hence his appeal within that party and its allies. However, those skills were complemented by the UNP’s entrenched strengths, such as extensive media interests of the Wickremesinghe / Wijewardena clan, considerable financial support from the Colombo business community as well as political allies within and good relationships with the international community. The SJB as a new party and the chief opposition alliance needs to create this network and extend its outreach to the different segments of society, so that in their disquiet of the Rajapakse Administration’s policies, the SJB is seen as an effective check and balance as well as a viable and credible future alternative government. The SJB and Opposition Leader Sajith Premadasa needs his own equivalent of “Eliya” and “Viyath Maga”, except resolutely civilian and absolutely inclusive and pluralistic.
The opposition to the 20th Amendment has been fairly spontaneous and widespread. From the Retired Judges Association, to Government Auditors, from the UN Human Rights Commissioner to Sri Lankan civil society, from the Bar Association to young lawyers, a record number of plaints were filed against the said Amendment. However, the SJB has not quite been able to harness all this raw energy against the amendment and to hugely increase the political costs of the same to the Government. All political indicators are that some slightly amended version of the 20th Amendment will soon become the law of the land. The only hope is that in its adventurism and political overreach of the 20th Amendment, the subsequent and ultimate objective of a new constitution will likely be denied the SLPP, notwithstanding its super majority in parliament.
SOFA: The reality in Iran under the Shah?
In 1964, Iran under Shah Reza Pahlavi, signed SOFA with the USA. Earlier his father Reza Shah had in 1928 abolished capitulations and judicial immunities to Westerners in Iran.
The amount Iran got then was US $ 200 million. SOFA was opposed by many as it reminded them of the time when Westerners in Iran could not be punished by the ‘terrible’ native courts. Leading the opposition was Ayatollah Khomeini, who called it an agreement for enslavement, and called for the overthrow of the Government. As the Shah would brook no opposition, Khomeini was expelled. He was to come back in 1979 and take over the leadership of Iran. The Shah had fled.
At one time the USA considered Iran as an invaluable ally. The US preferred Iran to Saudi Arabia for the security of the Persian Gulf. Iran was bigger, had a far bigger population and more military clout. It had used its vast wealth to buy US planes and weapons, especially after the 1973 oil spike. The US knew how the Shah used his dreaded secret police, SAVAK, to crush opposition, but chose to overlook it. They appeared not to have lecturers in Human Rights then, especially for their close friends. The war in Vietnam was coming to its bloody end.
When the protests by the Islamist clerics, bazarees, village tribals, students and leftists became more violent, the US, hedging its bets, did little to protect the Shah, despite its close relationship with him. He backed the US on Vietnam. To the credit of the Shah, whatever advice he was given by the US/UK, he refused to sanction the use of the Army to quell the protests.
SOFA is in force in NATO, South Korea and Japan. The latter two countries have very many objections to many clauses in SOFA, as US troops have been accused of many grave crimes and got away with them.
This is how Iran, ’the brightest spot in the Middle East’ (Lyndon Johnson) viewed SOFA which granted diplomatic privileges and immunities to members of the US administration and technical staff, guided by the Vienna Convention on Diplomatic relations (1961). However the USA selectively rejects Article 98 of the Rome Statute of the International Criminal Court.
‘By it (SOFA) an American non-commissioned officer (Sergeant) could slap the face of an Iranian Colonel with impunity’.
Khomeini said ‘the dignity and of the Iranian Army will be trampled underfoot by some American servant. An American cook can assassinate a girl in the middle of the bazaar or crush her underfoot but the Iranian police may not interfere’.
‘Even if the Shah himself were to run over a dog belonging to an American, he could be prosecuted. But if an American cook runs over the Shah, the Head of State, no one will have the right to interfere’.
However for honour’s sake will that prevent someone from punching an occupier in the mouth? Will a curfew be declared?
It is said that SOFA differs from military occupation. What comfort does that give?
Burial or cremation? Muslims remain in a Covid quandary
By Dr M. HARIS DEEN
The second wave of the COVID 19 pandemic and the extent of its spread worldwide, has left the Muslims of Sri Lanka in a serious quandary. To bury or cremate? That is the question. As far as the Muslims are concerned, the Sri Lankan government does not seem to give in. At first, what appeared to be a genuine cause, now clearly appears to be motivated by discrimination. Despite the advice of the WHO, several local organisations, representation by eminent professors of medicine, several distinguished ulemas, who diminished the argument that the water table issue as a fallacy, the Sri Lankan government stays unmoved on the issue of cremation against burial.
Article 3 of the Sri Lankan constitution states that “In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise.”
Relevant to my arguments are what is stated in Article 4 of the constitution, to wit:
Article 4 – The Sovereignty of the People shall be exercised and enjoyed in the following manner:
(c) the judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established by law, except in regards to matters relating to privileges, immunities and powers of Parliament and of its Members, wherein the judicial Power of the People may be exercised by Parliament according to law.
(d) the fundamental rights which are by the Constitution declared and recognised shall be respected, secured and advanced by all the organs of government and shall not be abridged, restricted or denied save, in the manner and to the extent provided,
Article 10 – Every person is entitled to freedom of thought, conscience and religion, including the freedom to adopt a religion or belief of his choice,
Article 11 – No person shall be subjected to torture or to cruel or degrading treatment or punishment.
One will see from the above cited Articles of the Sri Lankan constitution that the sovereignty is in the hands of the people, unlike in Britain and most other civil law countries, where the sovereignty is vested in the parliament and legislation passed by parliament cannot be challenged, although there is judicial review as to execution of the law but not the law itself.
Therefore, I submit that the Sri Lankan Parliament did not have the People’s mandate to present the “The Quarantine and Prevention of Diseases Ordinance” (Chapter 222) on 11th April 2020. The contents of the Bill had not been presented as a “White” paper for discussion by all communities. Hence, it is a “bolt from the blues” for those who seek a dignified end to them or their loved ones. It is further submitted that the fundamental rights of not only the Muslims, but also of every citizen of Sri Lanka who wish to be given dignity to their last rights, has been denied. Furthermore, the fundamental rights guaranteed by Article 10 have been infringed against the guarantees contained in Article 4 paragraph (d) of the constitution. In my opinion, this Bill could have been challenged in courts by invoking Article 4 (c) of the constitution, in which I believe there is adequate ground for a judicial review.
That is as far as the law is concerned. What about the position of the Muslims vis-a-vis what the Qur’an and the Ahadith say about the dignified treatment of dead persons.
“O ye who believe! Obey Allah, and obey the Messenger, and those charged with authority among you. If ye differ in anything among yourselves, refer it to Allah and His Messenger, if ye do believe in Allah and the Last Day: That is best, and most suitable for final determination”. (4:59)
I have researched and discussed with Islamic scholars on the issue. Allah in His absolute wisdom says in the Qur’an that death is inevitable and no matter how people try to escape death it will reach everyone (50:19), also “every soul shall taste death and only on the day of judgement you will be paid your full recompense on the day of your rising. Anyone who is distanced from the fire and admitted to the garden has triumphed . The life of this world is only enjoyment of delusion” (3:185). This is the only place where “death” and “fire” have been related as a punishment to be distanced from.
Allah’s book is for every situation rather than any situation, hence Allah in His absolute mercy refrained from committing His faithful from committing to any particular obligations as death can happen anywhere under any circumstance “No self knows what it will earn tomorrow and no self knows in what land it will die.” (31:33; 31:34). However, Allah showed the son of Adam, Cain what he should do when he killed his brother Abel, during a dispute between them. Allah sent a raven which dug the ground with its beak and feet and buried another dead raven and closed the “grave” “so that he might show him how he should cover his brother’s dead body,” (05: 31). Therefore, it is evident that Allah promoted burial as a dignified manner to respect the dead under all circumstances.
The Prophet (Peace and Salutations upon him) encouraged haste in burial of the deceased. This includes the entire process from ghusl to burial, but in particular it refers to carrying the body of the deceased from the Janaaza to the burial. Abu Hurayrah narrates that the Prophet (Peace and Salutations be upon him) said: “Hasten with the Janaza. If it was a righteous person, then you are forwarding it to its bliss, and if it was other than that (not righteous), then you will remove this burden from your necks.” [Reported by al-Bukhari (volume 2, hadith 401) and Muslim (volume 2, hadith 2059)].
Death and human dignity – Humanitarian Forensics under Islamic Law
In many civilizations, traditions and religions—both ancient and modern—death is a mere transitional phase between one stage of life and another. Burying the dead is one way to ensure that the dead are accorded dignity and respect, and that the feelings of their living loved ones are considered. Throughout history, religions, traditions and cultural practices have influenced the ways in which the dead are managed, both in times of peace and conflict. Today, they continue to do so.
In Islam, human dignity is a right given by God to all humans—who are referred to in the Qur’ān as God’s vicegerents on earth. Islam grants certain rights to humans before they are even born, and others after their death. Whether dead or alive, the human body—created by God in the perfect shape—must be given dignity and respect. This importance of the human body is illustrated, for instance, in the Qur’ān 5:31. There, it is narrated that when Cain was unsure of how to deal with the body of his brother Abel—whom he had murdered—God sent a message in the form of a raven. God used the raven to dig into the ground to bury another raven, thus indirectly showing Cain how to bury his brother’s body.
Faced with the difficulties of ensuring the dignified burial of the dead in the context of armed conflicts and other situations of violence and natural disasters, classical Muslim jurists developed Islamic laws to deal with the challenge. These laws aim to respect the dignity of the dead and respect the feelings of their loved ones to the degree possible. The dignity of the dead surfaced in the discussions of the classical Muslim jurists on a number of issues. Some of the most significant of which, for our purposes here, are: searching for and collecting the dead, disposal of Muslim and non-Muslim mortal remains, quick burial, exhumation of human remains and burial at sea.
Before delving into these issues, it is worth noting that Islamic law at times combines purely legal rules with religious and/or ethical matters. This is the case as well with the management of the dead. For instance, burial and grave regulations are deliberated in the Islamic legal literature, along with the etiquette of visiting graves. Combining legal and ethical elements is an important characteristic of Islamic law that helps keep it alive. It helps ensure that Muslims voluntarily impose such rules upon themselves, and that they keep practicing even with regard to aspects that are not codified in Muslim States’ legal systems, and over which courts have no jurisdiction. This nature of Islamic law points to the impact Islamic law can have in influencing societal behaviour. Understanding these Islamic rules can help guide humanitarian forensic specialists to overcome challenges they face by respecting the religious needs of Muslim societies, when they work in Muslim contexts. It is a way to show that respecting the dead is the common overriding concern of both their forensic work and Islamic law. (Dawoodi, A. A – 2018 – Humanitarian Law and Policy).
In my capacity as a lay person, I have put my knowledge before Islamic lawyers and parliamentarians and the Ulema to take up the case of the illegality of imposing “The Quarantine and Prevention of Diseases Ordinance” (Chapter 222) not only on Muslims but those of any faith, who do not want themselves cremated and request a dignified burial. It is not as yet too late, I am sure the government will listen to reason, when approached in the proper way. There is evidence that the reason given by the authorities of groundwater contamination is not proven.
In a web article posted on 19.05.2020 The Fast Company newsletter (accessed 27/10/2020) states inter alia as follows:
“Microbial and chemical contamination can also occur in cemeteries as a result of unmanaged, untreated and incorrectly sited sanitation services, solid waste, and wastewater, which allows for the flow of microorganisms and contaminants into cemeteries.
In general, bodies that are treated and buried in correctly sited and constructed cemeteries do not pose a threat to public health and are not a source of pollution. The WHO guidelines clearly stipulate that to date, there has been no evidence to suggest that individuals have become infected from exposure to the bodies of persons who have died from Covid-19.
If conducted according to the usual recommended health and safety practices, choosing to bury or cremate a person who has passed away from Covid-19 should pose no additional risk to the environment or the people. However, in South Africa, based on the nation’s known religious and cultural practices around death as well as the lack of sufficient crematoriums, Covid-19 victims are highly likely to be buried in cemeteries. South Africa also has serious issues with access to land in metropolitan and rural areas. As a result, conservation and residential developments take precedence over cemeteries because they are not considered sustainable.
However, when sited properly and according to sound scientific judgement, cemeteries should protect surface water and groundwater from contamination regardless of the cause of death. Provided that the capacity of the cemetery is not breached, the placement and design of the cemetery should have a built-in resilience to supply enough time for the attenuation of contaminants on-site. In some instances, poorly sited cemeteries may be at higher risk.
To date there have been no reported cases of the coronavirus that causes Covid-19 (officially known as SARS-CoV-2 ) being detected in drinking water in either private boreholes or public drinking water systems coming from cemeteries. This can be related to the travel time that SARS-Cov-2 will need in order to remain infective.
So far, SARS-CoV-2 does not have a high level of persistence in the environment, due to it being an enveloped virus and can be eliminated effectively by water treatment, especially chlorination, and would pose a minimal risk to drinking water. As the outbreak continues, and in the unlikely event that more people succumb to Covid-19; particularly in sub-Saharan Africa, more water-quality and hydrogeological (laboratory and pilot scale) experiments are needed before major conclusions can be drawn on their fate and the way they are transported in cemetery environments.
Dangers of Pompeo and pandemic
On May 3rd 2020, US Secretary of State Mike Pompeo told ABC News that there was “enormous evidence” to prove that the Covid-19 virus had come from a laboratory in Wuhan, China, but did not reveal the enormous evidence or even a little of it. He comes to Sri Lanka perhaps bearing gifts like the MCC and SOFA. This is a clear case of “Greeks who come bearing gifts” and we have to be careful. Will he tell our leaders that the Covid which is raging in our country at present was introduced to Sri Lanka by China. and point to the fact that the first person detected with the infection was a Chinese, which is enormous evidence. The USA has no scruples regarding ethics or common decency when it comes to pushing its global agenda. They would want to stop Chinese developing their wheel of influence in the world, and Sri Lanka is an irreplaceable cog in that wheel.
The Covid conspiracy theory was first mooted by The Washington Times, which on January 26th 2020 claimed, “Corona virus may have originated in a laboratory linked to China’s bio warfare programme”. President Trump and Pompeo latched on to this idea, and started to issue statements in a desperate attempt to place the blame on China and escape the wrath of the people for the rampaging viral infection in the US and its total mismanagement. On April 18th 2020, Trump during a White House briefing said that the US was looking into the claim that the virus spread from a laboratory in China, which made “sense”. He did not produce any evidence to support his assertion that the idea made sense.
On February 18th, 27 prominent scientists outside China issued a statement in The Lancet which “condemned the conspiracy theories suggesting that Covid-19 does not have a natural origin”, and pointed out that research “overwhelmingly concludes that Coronavirus originate in wildlife”. Further, five prominent scientists said in the Nature Medicine on March 17th that “we do not believe any type of laboratory-based scenario is possible” . Dr. Fauci, participating in the White House briefing where Trump accused China of conspiracy, said that mutations detected in the Covid virus were totally consistent with the theory that the virus jumped from an animal to human. These opinions made Washington Times to retract its earlier preposterous claim and say that there is no evidence to support a theory that the virus was man-made.
However, all this evidence did not dissuade Trump and Pompeo from making wild allegations against China, and the president called the Covid the “Chinese Virus”. The New York Times reported on April 30th that the Secretary of State Pompeo has pushed US spy agencies to dig up evidence to link a laboratory in China to the origin of the virus. This was in spite of the Inspector General of Intelligence Community reporting on 30th April that the Covid-19 virus was not man-made. And on the same day Trump states that there is “a high degree of confidence” in the theory that the origin of the Covid-19 was linked to a lab in Wuhan, China. And on May 3rd Pompeo told ABC News that there was “enormous evidence” to prove that Covid came from a lab in Wuhan, without producing any of that evidence. However on May 6th he hedges and says “we don’t have certainty” but “there is significant evidence”.
Could a small country like Sri Lanka have any confidence in people like Pompeo, who promises to look after our country and protect it from big powers, which are intent on getting us into debt traps? He is the chairman of the Millennium Challenge Corporation, the controversial global aid agency. This agency has two areas of interest, land and transport, irrespective of the country or its needs. Several countries in Africa and Asia have terminated their agreements with Pompeo’s agency, after finding out the adverse effects it had on the sovereignty and independence of their country.
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