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THE REFERENDUM – An illegitimate alien mechanism

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Dr Nihal Jayawickrama, LL.B (Cey), Ph.D (Lond)

The 1978 Constitution introduced into the law-making process of Sri Lanka the concept of a “referendum”. It was hailed in some quarters as a return to basics. In the tradition of the Greek city states, actual decision-making was being restored to the people. 43 years later, what has it actually achieved? It has entrenched provisions which no legislature would have ever contemplated repealing: the prohibition of torture and the freedom of thought, conscience and religion. It has prevented Parliament from restoring to this country its original name – the Republic of Sri Lanka, by dropping that utterly unnecessary prefix borrowed from the Democratic Socialist Republic of North Korea. It has installed February 4, 1948 as our National Day – the day on which Ceylon received the gift of self-government and dominion status under the British monarchy, rather than May 22, 1972 – the day on which Sri Lanka unilaterally declared itself a Free, Sovereign and Independent Republic.

And, it requires a country-wide referendum to be held before a single note of music in our national anthem, set out in the Third Schedule, could be changed – say, from base to treble. More seriously, and most unfortunately, it was successfully invoked in 2018 to impede the JVP’s constitutional amendment which would have enabled the Ceremonial Head of State under the 19th Amendment to be elected by Parliament rather than at a country-wide, divisive, general election. What was most tragic was that the determination of the Supreme Court on that Bill was clearly erroneous in that it had failed to consider a previous relevant binding decision of a Full Court.

Localized single issues

A referendum (or a plebiscite as it is sometimes referred to) is a mechanism frequently resorted to now in Swiss Cantons, usually to seek community views on single issues such as whether Sunday shopping should be allowed, or liquor shops should be kept opened on the day of Sabbath. It is a democratic way of resolving simple single issues. It is not suitable for consulting the population on complex issues such as the text of a new Constitution. For example, in Canada in 1992, a package of very significant constitutional amendments designed to recognize and give effect to the multicultural character of that country, known as the Charlottetown Accord, which was agreed upon by all the First Ministers and territorial and aboriginal leaders, was rejected at a national referendum for widely divergent reasons which had no relevance whatsoever to the question at issue. Foremost among these reasons was the widespread unpopularity of the then Prime Minister of Canada.

So it was with the 2017 referendum in the United Kingdom on the question of leaving the European Union. The crippling consequences of Brexit were not explained to the electorate, and many in middle-England thought that an affirmative vote would mean the restoration of the British Empire! I was in both countries at the relevant times.

An alien concept

The referendum, as a mechanism of direct law-making is alien to this country and unfamiliar to most Sri Lankans. That was evident in the one and only referendum which was conducted in 1982 in the most bizarre circumstances. President Jayewardene first secured undated letters of resignation from all his Members of Parliament and Ministers. He then forwarded to the Supreme Court a Bill that would extend the life of Parliament for a further six years, and thereby deny the people their right to elect a new Parliament.  He certified the Bill as “urgent in the national interest” and required the Court’s decision within three days. He then submitted the Bill to Parliament and required it to be debated and voted on in a single day. The Fourth Amendment to the Constitution was next submitted for approval by the People at a referendum.

The reason he gave the country was that he had information that “a Naxalite group intended to establish a military government if a general election was held”.  The Bill he submitted to the “people” was either not read by “the people”, or was probably incomprehensible to many of those who did. In fact, it received two diametrically opposed interpretations by the Supreme Court, with the seven- Judge Bench returning a divided verdict of four to three. Nevertheless, it was approved by a majority of the “people” in what is now accepted as the first genuine mass rigging exercise in the country’s electoral history.

Issue of legislative competence

A serious constitutional issue that arises is whether it was within the legislative competence of the National State Assembly to have introduced the requirement of a referendum into the law-making process of the Parliament it created under the 1978 Constitution?  The 1972 Constitution authorized the new National State Assembly which it established to amend any provision in that Constitution with a two-third majority.  Accordingly, in 1978, the National State Assembly, by a two-third majority, repealed and replaced that Constitution in its entirety.  In doing so, it provided that certain provisions in the new Constitution, which it adopted by a two-third majority, could be amended only by a two-third majority in Parliament followed by approval of the people at a referendum.  In other words, those provisions were to be unalterable by Parliament even with a two-third majority.

Could the National State Assembly have invested such a superior status to the law which it had made by a two-third majority that it would be unalterable by a similar majority?  If it could have, why is it not possible today for Parliament to pass an ordinary Bill by a simple majority of one, and state that law may only be amended or repealed by a two-third majority; or to take another example, to state that it may be repealed only by the affirmative votes of all the members of Parliament?  Is it even conceivable that Parliament could make a constitutional amendment by a two third majority and declare that amendment to be unalterable by that or any other Parliament ever thereafter?  The absurdity of such a provision is obvious.  The National State Assembly was a creature of statute, a legal persona.  It had no existence outside the provisions of the 1972 Constitution under which it was created.  Its law-making powers were explicitly defined. It was prohibited from abdicating, delegating, or in any manner alienating its legislative power. It was prohibited from setting up an authority with any legislative power other than the power to make subordinate laws. Therefore, it did not have the power to make a law that could not be amended or repealed by a legislature either by a simple or two-third majority.

(The writer, a distinguished legal academician, served as Attorney General (1970), Permanent Secretary Ministry of Justice ( 1970-77), has been a Research Fellow, King’s College, University of London (1977), Associate Professor of Law, University of Hong Kong (1985-1997), Professor of Human Rights, University of Saskatchewan (1992-93), served as Executive Director, Transparency International, Berlin (1997-2000) and is currently Rapporteur of the UN Judicial Integrity Group (of Chief Justices)



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The ubiquitous Tuk Tuk elevated to ambassadorial level

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The Sri Lankan three wheeler or tuk tuk and the Indian auto rickshaw are equally loved and despised, but used very much in both countries. Over here they have spread to every city, hamlet and even village. Needless to fear there will be no transport to hire when one descends from bus or train. There will always be the little bug waiting for a fare. And once in a while such a vehicle is the only negotiable one on rutty, inclined roads.

Love and hate? Car-less and permanently driverless women love the little three wheeled contraption. They are taken around marketing, shopping, escorting kids home from school. But male car owner-drivers detest them as dangerous clogs in traffic. They see dark pink when a tuk tuk is observed, red being reserved for private bus drivers. Most housewives adopt a three wheeler that makes for convenience, safety and even camaraderie with the guy at the handle bar. It’s good to adopt a known guy. I have two such – the white capped charioteer and the ex-sportsman gone to spread. The former will take me right into a bank or shop if at all possible. Compromises by stopping with no space left between entrance step or door and invariably warns “paressamen, hemin”. The other takes time to enquire after an ex-domestic whom he carefully conducted to visit relatives and my grandson who loved spinning around with his ‘Sampatha.’ These two are definite blessings in life, I count.

The Ambassador’s vehicle

Ambassador from Mexico to India (2015 – 2018), Melba Pria, made a definite statement of her belief in equality and her avowed aim of “promoting inclusion and strengthening public policy in Mexico and abroad” when she commissioned an auto rickshaw as her official vehicle in New Delhi. She had an auto rickshaw custom built for her designed by a visiting Mexican artist, thus earning herself the sobriquet of ‘Auto Rickshaw Diplomat.” A video sent me had her happily riding behind her suitably suited official driver, Jagchal Chana Dugal, flying the Mexican flag and the cab painted carnival bright with flowers, birds, fruit. The driver may have been duly shocked and to an Indian, a lowering of status. He had to learn to drive a lowly vehicle. Pria’s statement was that she considered herself a Delhi-ite and living in the city did what Delhites did – riding auto rickshaws all the time.

Parliament did not allow this type of vehicle in the premises. She promptly sent a letter of protest/request to the Speaker and won her case. In Sri Lanka a three wheeler is considered a lesser vehicle and many places do not allow such to proceed beyond a certain limit. I’ve met this setback when visiting friends in Crescat Apartments. Also, three wheelers are not allowed in the car park of HSBC, Baudhaloka Mawata. They may have their reasons and Nan won’t fight for equality among vehicles, though to her as a woman who uses them constantly, she feels they should be treated on par with other vehicles. Little wonder that such as I retches with disgust when she sees politicos arrive in their massive limousines provided gratis by the government and petrol paid for by people’s taxes.

Ambassador Pria had visited India previously and was an admirer of Tagore. She sat on the lap of Ravi Shankar and played the sitar when her mother was the Mexican Minister of Culture. She even boastfully claims her name is part Indian and means ‘pleasant’. “India is friends, family, home and so many other things, even my doctors are here.” She loves Delhi with its range of cultural activities.”Delhi is many cities within one city but one must be brave to be an outdoors person here.” She cycles too.

Her affinity to the country was shared by her brother, who, when ill, was brought by her to Delhi to consult a doctor. He died but had said he wanted to bathe in the holy waters of the Ganga in Benares. His ashes were given her with the pot draped in an Indian cloth. She went home with a Mexican cloth over the Indian, symbolically. When she was posted to Japan after her stint in India, she took her auto-rickshaw along. However, what I read did not say it was driving her around the streets of Tokyo – very improbable with the Japanese almost maniacal about cleanliness and atmospheric non-pollution.

Antecedents

The tuk tuk that is now ubiquitous in Sri Lanka having invaded the Hill Country too is, with its relatives overseas, a vehicle descended from the two-wheeled Italian scooter – Vespa. Italian aircraft designer Corradino D’Ascania evolved the three wheeled vehicle in 1948 and called it Trivespa. In 1956 a cab or hood was added and it was knows as the Piaggio Ape; ‘ape’ being Italian for bee, the vehicle making a buzzing sound.

In Sri Lanka

Recently the tuk tuk came into prominence. Asked to leave his post, OK, sacked, State Minister for Education Reform, Susil Premajayantha, left his office for good in a hired three wheeler which took him home. Or out of camera sight. Did he transfer to his own vehicle (luxury or not) when safe from media scrutiny? No doubt it was a PR stunt. Was it to show he is just one of us? He has no vehicle of his own? He was quoted in a tv clip saying he’ll get himself a car. Whether a dismissed Minister or not, he is a politician with all its attendant characteristics. No pity felt for this SLFPer who was the first to sign membership of the SLPP.

The lowly but much appreciated three wheeler gained customers since Covid 19 when people were advised to travel in open vehicles and taxi drivers hardly ever lower their windows in their air conditioned vehicles. We heard rumours the tuk tuks were to be taken off streets and imports banned by this government when it was new in office. A trick up its collective sleeve? We need this poor man’s vehicle in this country driven to poverty by persons in power who lived grand and built white elephants beyond their and the country’s means.

Of course you get the odd bod in the driving seat – the inexperienced, even unlicensed driver; the aspiring Formula One speedster; and the Lothario who looks back more than watches the road. The advantage is you can tell him off, exhibiting the umbrella you have in hand. That’s a plus point –being able to hop off a tuk tuk with no doors to delay or keep you in.

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Lady in red: Mysterious painting hidden behind a prominent Lankan’s portrait

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ECONOMYNEXT – At 9 a.m. on December 11, 2021, at the National Art Gallery of Sri Lanka, a portrait of Ananda Samarakoon, who famously composed the national anthem, was lifted off its frame to reveal a perfectly preserved painting of an enigmatic woman dressed in a red saree. Who she was, why she was painted and why she was eventually covered up, remains a mystery.

The painting, unearthed during a conservation project of 239 art pieces, is attributed to Mudaliyar Amarasekara, a towering and pioneering figure in Sri Lanka’s art scene.

The project was headed by Tharani Gamage, Director at the Department of Cultural Affairs, Hiranthi Fernando, Curator at the National Art Gallery, and an Art Restoration and Exhibition Committee comprised of eminent artists and scholars in the country.

Jennifer Myers, an easel painting conservation expert from the US, was brought in to assist with the project.

“So I’m just looking at this painting and I notice that the fabric of the canvas that was on the front was different from the canvas at the back… I was kind of pushing between front and back and I could feel there was an air space,” she says.

The conservationist noticed something unusual about the dust collected at the back of the painting.

“Because it’s a painting that’s done in landscape orientation, the dust should be at the bottom of the frame, but here the dust was collected on the side and that was really odd, so we slowly started taking off tacks from the corner and when we looked underneath, it looked like layers of paint on top of a canvas. That’s when we realised there could be another painting at the bottom.”

According to committee member Professor Jagath Weerasinghe, a mural painting conservation expert, Myers used archaeological principles to determine the existence of the second painting underneath.

“It’s very impressive, and precisely why we wanted to get an expert to help us with this project,” he says.

The newly discovered painting was found as a result of an initiative taken by the gallery to preserve some of its most exceptional pieces. From charcoal and watercolour to acrylics and oil paintings, the collection at the gallery spans two centuries and a diverse mix of mediums.

Professor Weerasinghe talks to EconomyNext about the difficulty of finding qualified individuals for the project.

“There is a lack of experts on easel painting conservationists in Sri Lanka. We do have academically trained experts on mural conservation, and they are the ones who made up the committee. We have trained in places like India, Pakistan and Japan, and we knew we had the practical capacity to pull it off.

“But working on a national collection is a difficult task, and we wanted someone from an internationally accepted programme, who had had academic training in the subject to work on it, which is how Jennifer was brought in.”

Myers, National Endowment for the Humanities Painting Conservation Fellow at the Chrysler Museum of Art, laughs as she tells us her title. “It’s a bit of a mouthful,” she says.

Myers has a degree in Museology, and a background in Archeology, Painting, Human anatomy and Bone Structure, all of which are useful for conservation work, which she studied at the University of Delaware.

“My professors at the university spoke about this project, and I was intrigued. This was an opportunity for me to learn about artists and a country that I didn’t know much about before, which is a personal interest of mine. I also thought I had the skills that the gallery was specifically looking for, so I could bring that to the project as well.”

The diversity of the collection was something that she did not expect.

“It was an amazing experience. I learnt about so many artists that we don’t get exposed to in America that often. The diversity of the collection was greater than I was expecting which was interesting and fantastic. There were paintings from a range of years, styles and there were more contemporary pieces; European and European inspired pieces, which I was surprised to see. It was a collection of surprises.”

The project, taken up by the Central Cultural fund at a cost 1.8 million rupees allocated by the Department of Cultural Affairs, was started in October 2021 and is set to be wrapped up by February 2022. Of the collection numbering 240 (with the new painting), 76 will go up for permanent display in the main gallery, and 88 will be exhibited temporarily in the eastern hall.

Professor Weerasinghe, who is also a contemporary artist and archaeologist, stresses the importance of official backup on cases such as these. “The ministry listened to the word of the professionals. So many artworks have been destroyed because of badly done conservation efforts. That’s precisely why we called in an expert. The decision to value professionalism is the most important thing that happened here. If they didn’t do that, none of this would have happened.”

Mithrananda Dharmasiri, Chief Mural Conservation Officer at Central Cultural Fund of Sri Lanka, touches on the misconceptions around conservation. “A lot of people think, can’t an artist just paint over the damage, isn’t that what conservation is? But conservation is a much more scientific, and a completely different thing.”

Professor Weerasinghe agrees, saying, “That is an important point. A conservator is not a scientist. A conservator is not an artist. A conservator is a conservator.”

Gamage gives us some official perspective on the matter.

“This was a joint effort by the ministry and the Committee and it was pulled off beautifully. This is the first time in Sri Lanka that such a large conservation project is being done, with international collaboration as well, and Jennifer was an invaluable part of the team,” he says.

Though Sri Lanka is home to some of the top mural conservation experts in the world, there is a great need for artists who work in other fields as well. With a humid climate that is especially treacherous to paints and fabrics, a greater effort must be put to protect the national artworks of the country, and give systematic education for those who are interested in the field.

The staff at the gallery are hopeful that the opening, as well as the discovery of the new painting, will revive the underappreciated art scene in the country. Finally set to open to the public in March 2022 after its closure in 2013, the new exhibition and the renovated buildings are a tribute to the great artists and artworks that were once hidden away.

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HOW NOT TO RUN AN ELECTION (1950s)

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by Chandra Arulpragasam

I must admit that my experience of elections is limited only to one district (the Batticaloa district), long ago (in the 1950s), and not at the national level. Moreover, as the second Returning Officer, I played second fiddle to the Government Agent, who was actually in charge of the Parliamentary Elections at the district level. However I was given definite responsibilities: first, for staffing the polling booths with government staff officers of executive rank; second, for supervising the actual process of elections in the polling booths; and third, for the counting of ballots once the voting was done.

My first job was difficult because many Sinhalese officers in those days were reluctant to come so far to a Tamil-speaking district. (This was long before the Tigers became the major political or military force in those districts). I was able to overcome this difficulty because some of my Sinhalese friends shared my interest in jungles and lagoons, and they were eager to come as polling officers to the Eastern Province. I had to officially get them to staff the polling booths; but unofficially, I had also to look after them and provide social activities for them.

On Election Day, I went to monitor the polling places. On one of these monitoring missions, I visited Kattankudi, a Muslim town just south of Batticaloa, where I was actually able to see an act of impersonation for the first time. This case was so outrageous that I will remember it till I die. A pregnant Muslim woman with a sari pulled over her face with only the eyes showing, was challenged. To my utter surprise, ‘she’ was unveiled to reveal a man with a beard and a pillow around his waist, pretending to be pregnant!

Many years later, I used this practical experience (of Kattankudi) to convince SWAPO, the independence movement in Namibia to withhold their agreement to the Turnhalle Agreement. The leader of SWAPO, who became the Prime Minister of Namibia was eager to get my views. I stood by my opinion that they would surely lose that decisive election – for independence – unless they were able to control or at least monitor the whole implementation process of that election. This delayed their independence by about 10 years – until they were able to train the requisite number of workers to monitor the implementation of the whole election process. The experience of Kattankudi went a long way!

To return to my story about the Batticaloa election, I still had to cast my own vote for the Batticaloa town seat. Fortunately or unfortunately, I knew all the candidates for that seat. When I came to the polling station, each of the candidates bowed and smiled, wanting to shake my hand, each of them expecting me to vote for them. I was an LSSP supporter at that time and since there was no LSSP horse in that race, I did not know whom to vote for. I went into the polling booth and impulsively drew a caricature/cartoon of each of the three candidates against their names. I remember drawing a fez cap on the Muslim candidate’s head, and drawing hair on the ears for another candidate (which was his outstanding characteristic) and a moustache on the other candidate. Smiling uneasily and guiltily, I emerged from the ballot booth to engage in small talk with the three candidates.

On Election night, there was a grand counting of votes in the Kachcheri. This was presided over by the Government Agent, but with me in actual charge of the counting. If there was a challenge to any ballot, I would give a ruling on the spot. If it was still contested, it would go to the Government Agent for his ruling. I was dreading that my ballot (with the cartoon of the candidates) would come up for my ruling. It did. And I was the first to shout “Spoilt Ballot”. I heard one of the candidates muttering loudly “bloody fool” – aimed at the person who had cast that ballot! I hastened to agree! The case was reported to the Government Agent, who did not know that his own AGA was responsible for that ballot! I had acted irresponsibly as a presiding officer. On the other hand, it was my own ballot – and if I chose to spoil it, that was my own right!

The night after the election, I invited my friends from the various government departments in Colombo to gather for a social get-together at the Vakaneri Circuit Bungalow. This was about 22 miles north of Batticaloa and situated on a massive rock overlooking the Vakaneri reservoir, which gave water to the Paper Factory. This had been one of my favourite haunts – to enjoy the silence and views of jungle and water.

I had got my friend Carl de Vos, from the private sector, to go up to the bungalow on Election Day and decorate the place, inflate the balloons, etc. – so that it had a festive look even before we arrived. I played a piano accordion at that time – and thus provided the music for singing, dancing and baila sessions. There was much singing of old songs and much drinking of beer. So much so, that the bungalow-keeper when measuring the rain-gauge the next morning (his daily duties in this Irrigation Circuit Bungalow) found to his consternation that there had been so much rain on the previous night (beer converted to urine) that there was danger of flooding – though there had been no rain at all! He grumbled loudly for me to hear: “It is impossible with this AGA dorai”.

Then the “impossible” happened. One of our guests, who had had too much to drink, had slipped and fallen into the reservoir! Knowing that it was deep at this point, that he could not swim and that there were crocodiles in the reservoir, I jumped in and hauled him out quickly – before the crocs could get me!

I heaved a sigh of relief when my election duties had been successfully completed and my social obligations – of playing herdsman to the officers from Colombo – had finally ended.

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