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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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Lives of journalists increasingly on the firing line

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Since the year 2000 some 45 journalists have been killed in the conflict-ridden regions of Palestine and senior Al Jazeera journalist Shireen Abu Akleh was the latest such victim. She was killed recently in a hail of bullets during an Israeli military raid in the contested West Bank. She was killed in cold blood even as she donned her jacket with the word ‘PRESS’ emblazoned on it.

While claims and counter-claims are being made on the Akleh killing among some of the main parties to the Middle East conflict, the Israeli police did not do their state any good by brutally assaulting scores of funeral mourners who were carrying the body of Akleh from the hospital where she was being treated to the location where her last rites were to be conducted in East Jerusalem.

The impartial observer could agree with the assessment that ‘disproportionate force’ was used on the mourning civilians. If the Israeli government’s position is that strong-arm tactics are not usually favoured by it in the resolution conflictual situations, the attack on the mourners tended to strongly belie such claims. TV footage of the incident made it plain that brazen, unprovoked force was used on the mourners. Such use of force is decried by the impartial commentator.

As for the killing of Akleh, the position taken by the UN Security Council could be accepted that “an immediate, thorough, transparent and impartial investigation” must be conducted on it. Hopefully, an international body acceptable to the Palestinian side and other relevant stakeholders would be entrusted this responsibility and the wrong-doers swiftly brought to justice.

Among other things, the relevant institution, may be the International Criminal Court, should aim at taking urgent steps to end the culture of impunity that has grown around the unleashing of state terror over the years. Journalists around the world are chief among those who have been killed in cold blood by state terrorists and other criminal elements who fear the truth.

The more a journalist is committed to revealing the truth on matters of crucial importance to publics, the more is she or he feared by those sections that have a vested interest in concealing such vital disclosures. This accounts for the killing of Shireen Abu Akleh, for instance.

Such killings are of course not unfamiliar to us in Sri Lanka. Over the decades quite a few local journalists have been killed or been caused to disappear by criminal elements usually acting in league with governments. The whole truth behind these killings is yet to be brought to light while the killers have been allowed to go scot-free and roam at large. These killings are further proof that Sri Lanka is at best a façade democracy.

It is doubtful whether the true value of a committed journalist has been fully realized by states and publics the world over. It cannot be stressed enough that the journalist on the spot, and she alone, writes ‘the first draft of history’. Commentaries that follow from other quarters on a crisis situation, for example, are usually elaborations that build on the foundational factual information revealed by the journalist. Minus the principal facts reported by the journalist no formal history-writing is ever possible.

Over the decades the journalists’ death toll has been increasingly staggering. Over the last 30 years, 2150 journalists and media workers have been killed in the world’s conflict and war zones. International media reports indicate that this figure includes the killing of 23 journalists in Ukraine, since the Russian invasion began, and the slaying of 11 journalists, reporting on the doings of drug cartels in Mexico.

Unfortunately, there has been no notable international public outcry against these killings of journalists. It is little realized that the world is the poorer for the killing of these truth-seekers who are putting their lives on the firing line for the greater good of peoples everywhere. It is inadequately realized that the public-spirited journalist too helps in saving lives; inasmuch as a duty-conscious physician does.

For example, when a journalist blows the lid off corrupt deals in public institutions, she contributes immeasurably towards the general good by helping to rid the public sector of irregularities, since the latter sector, when effectively operational, has a huge bearing on the wellbeing of the people. Accordingly, a public would be disempowering itself by turning a blind eye on the killing of journalists. Essentially, journalists everywhere need to be increasingly empowered and the world community is conscience-bound to consider ways of achieving this. Bringing offending states to justice is a pressing need that could no longer be neglected.

The Akleh killing cannot be focused on in isolation from the wasting Middle East conflict. The latter has grown in brutality and inhumanity over the years and the cold-blooded slaying of the journalist needs to be seen as a disquieting by-product of this larger conflict. The need to turn Spears into Ploughshares in the Middle East is long overdue and unless and until ways are worked out by the principal antagonists to the conflict and the international community to better manage the conflict, the bloodletting in the region is unlikely to abate any time soon.

The perspective to be placed on the conflict is to view the principal parties to the problem, the Palestinians and the Israelis, as both having been wronged in the course of history. The Palestinians are a dispossessed and displaced community and so are the Israelis. The need is considerable to fine-hone the two-state solution. There is need for a new round of serious negotiations and the UN is duty-bound to initiate this process.

Meanwhile, Israel is doing well to normalize relations with some states of the Arab world and this is the way to go. Ostracization of Israel by Arab states and their backers has clearly failed to produce any positive results on the ground and the players concerned will be helping to ease the conflict by placing their relations on a pragmatic footing.

The US is duty-bound to enter into a closer rapport with Israel on the need for the latter to act with greater restraint in its treatment of the Palestinian community. A tough law and order approach by Israel, for instance, to issues in the Palestinian territories is clearly proving counter-productive. The central problem in the Middle East is political in nature and it calls for a negotiated political solution. This, Israel and the US would need to bear in mind.

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Doing it differently, as a dancer

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Dancing is an art, they say, and this could be developed further, only by an artist with a real artistic mind-set. He must be of an innovative mind – find new ways of doing things, and doing it differently

According to Stephanie Kothalawala – an extremely talented dancer herself – Haski Iddagoda, who has won the hearts of dance enthusiasts, could be introduced as a dancer right on top of this field.

Stephanie

had a chat with Haski, last week, and sent us the following interview:

* How did you start your dancing career?

Believe me, it was a girl, working with me, at office, who persuaded me to take to dancing, in a big way, and got me involved in events, connected with dancing. At the beginning, I never had an idea of what dancing, on stage, is all about. I was a bit shy, but I decided to take up the challenge, and I made my debut at an event, held at Bishop’s College.

* Did you attend dancing classes in order to fine-tune your movements?

Yes, of course, and the start was in 2010 – at dancing classes held at the Colombo Aesthetic Resort.

* What made you chose dancing as a career?

It all came to mind when I checked out the dancing programmes, on TV. After my first dancing programme, on a TV reality show, dancing became my passion. It gave me happiness, and freedom. Also, I got to know so many important people, around the country, via dancing.

* How is your dancing schedule progressing these days?

Due to the current situation, in the country, everything has been curtailed. However, we do a few programmes, and when the scene is back to normal, I’m sure there will be lots of dance happenings.

* What are your achievements, in the dancing scene, so far?

I have won a Sarasavi Award. I believe my top achievement is the repertoire of movements I have as a dancer. To be a top class dancer is not easy…it’s hard work. Let’s say my best achievement is that I’ve have made a name, for myself, as a dancer.

* What is your opinion about reality programmes?

Well, reality programmes give you the opportunity to showcase your talents – as a dancer, singer, etc. It’s an opportunity for you to hit the big time, but you’ve got to be talented, to be recognised. I danced with actress Chatu Rajapaksa at the Hiru Mega Star Season 3, on TV.

* Do you have your own dancing team?

Not yet, but I have performed with many dance troupes.

* What is your favourite dancing style?

I like the style of my first trainer, Sanjeewa Sampath, who was seen in Derana City of Dance. His style is called lyrical hip-hop. You need body flexibility for that type of dance.

* Why do you like this type of dancing?

I like to present a nice dancing act, something different, after studying it.

* How would you describe dancing?

To me, dancing is a valuable exercise for the body, and for giving happiness to your mind. I’m not referring to the kind of dance one does at a wedding, or party, but if you properly learn the art of dancing, it will certainly bring you lots of fun and excitement, and happiness, as well. I love dancing.

* Have you taught your dancing skills to others?

Yes, I have given my expertise to others and they have benefited a great deal. However, some of them seem to have forgotten my contribution towards their success.

* As a dancer, what has been your biggest weakness?

Let’s say, trusting people too much. In the end, I’m faced with obstacles and I cannot fulfill the end product.

* Are you a professional dancer?

Yes, I work as a professional dancer, but due to the current situation in the country, I want to now concentrate on my own fashion design and costume business.

* If you had not taken to dancing, what would have been your career now?

I followed a hotel management course, so, probably, I would have been involved in the hotel trade.

* What are your future plans where dancing is concerned?

To be Sri Lanka’s No.1 dancer, and to share my experience with the young generation.

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Responding to our energy addiction

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by Ranil Senanayake

Sri Lanka today is in the throes of addiction withdrawal. Reliant on fossil fuels to maintain the economy and basic living comforts, the sudden withdrawal of oil, coal and gas deliveries has exposed the weakness and the danger of this path of ‘development’ driven by fossil energy. This was a result of some poorly educated aspirants to political power who became dazzled by the advancement of western industrial technology and equated it with ‘Development’. They continue with this blind faith even today.

Thus, on December 20th 1979, an official communiqué was issued by the Government and displayed in the nation’s newspapers stating, “No oil means no development, and less oil, less development. It is oil that keeps the wheels of development moving”. This defined with clarity what was to be considered development by the policy-makers of that time. This fateful decision cast a deadly policy framework for the nation. The energy source that was to drive the national economy would be fossil-based. Even today, that same policy framework and its adherents continue. Everything, from electricity to cooking fuel, was based on fossil energy.

The economics of development, allows externalizing all the negative effects of ‘development’ into the environment, this being justified because, “industrialisation alleviates poverty”. The argument, is that economies need to industrialise in order to reduce poverty; but industrialisation leads to ‘unavoidable emissions. Statements like, ‘reduction in poverty leads to an increase in emissions’ is often trotted out as dogma. Tragically, these views preclude a vision of development based on high tech, non-fossil fuel driven, low consumptive lifestyles. Indeed, one indicator of current ‘development’ is the per capita consumption of power, without addressing the source of that power.

A nation dependent on fossil fuel is very much like an addict dependent on drugs. The demand is small, at first, but grows swiftly, until all available resources are given. In the end, when there is nothing else left to pawn, even the future of their children will be pawned and finally the children themselves! Today, with power cuts and fuel shortages, the pain of addiction begins to manifest.

The creation of desire

This perspective of ‘development’, the extension of so-called ‘civilised living’ is not new to us in Sri Lanka, Farrer, writing in 1920, had this to say when visiting Colombo:

“Modern, indeed, is all this, civilised and refined to a notable degree. All the resources of modern culture are thick about you, and you feel that the world was only born yesterday, so far as right-thinking people are concerned.

And, up and down in the shade of glare, runs furiously the unresting tide of life. The main street is walled in by high, barrack like structures, fiercely western in the heart of the holy East, and the big hotels upon its frontage extend their uncompromising European facades. Within them there is a perpetual twilight, and meek puss-faced Sinhalese take perpetually the drink orders of prosperous planters and white-whiskered old fat gentlemen in sun hats lined with green. At night these places are visible realisation of earthly pleasure to the poor toiling souls from the farthest lonely heights of the mountains and the jungle.” The process goes on still …

Develop we must, but cautiously – with the full awareness of the long-term consequences of each process. Development must be determined by empowering the fundamental rights of the people and of the future generations. Clean air, clean water, access to food and freedom from intoxication, are some of these fundamental rights. Any process that claims to be part of a development process must address these, among other social and legal fundamental rights.

One problem has been that, the movement of a country with traditional non-consumptive values, into a consumerist society based on fossil energy tends to erode these values rapidly. Often, we are told that this is a necessary prerequisite to become a ‘developed country’, but this need not be so. We need to address that fundamental flaw stated in 1979. We need to wean ourselves away from the hydrocarbon-based economy to a carbohydrate-based economy. Which means moving from a fossil fuel-based economy to a renewable energy-based economy.

Fossil Fuels or fossil hydrocarbons are the repository of excess carbon dioxide that is constantly being injected into the atmosphere by volcanic action for over the last 200 million years. Hydrocarbons are substances that were created to lock up that excess Carbon Dioxide, sustaining the stable, Oxygen rich atmosphere we enjoy today. Burning this fossil stock of hydrocarbons is the principal driver of modern society as well as climate change. It is now very clear that the stability of planetary climate cycles is in jeopardy and a very large contributory factor to this crisis are the profligate activities of modern human society.

As a response to the growing public concern that fossil fuels are destroying our future, the fossil industry developed a ‘placating’ strategy. Plant a tree, they say, the tree will absorb the carbon we emit and take it out of the atmosphere, through this action we become Carbon neutral. When one considers that the Carbon which lay dormant for 200 million years was put into the atmosphere today, can never be locked up for an equal amount of time by planting a tree. A tree can hold the Carbon for 500 years at best and when it dies its Carbon will be released into the atmosphere again as Carbon Dioxide.

Carbon Dioxide is extracted from the atmosphere by plants and converted into a solid form through the action of photosynthesis. Photosynthetic biomass performs the act of primary production, the initial step in the manifestation of life. This material has the ability to increase in mass by the absorption of solar or other electromagnetic radiation, while releasing oxygen and water vapor into the atmosphere. It is only photosynthetic biomass that powers carbon sequestration, carbohydrate production, oxygen generation and water transformation, i.e., all actions essential for the sustainability of the life support system of the planet.

Yet currently, it is only one product of this photosynthetic biomass, sequestered carbon, usually represented by wood/timber, that is recognized as having commercial value in the market for mitigating climate change. The ephemeral part, the leaves, are generally ignored, yet the photosynthetic biomass in terrestrial ecosystems are largely composed of leaves, this component needs a value placed on it for its critical ‘environmental services’

With growth in photosynthetic biomass, we will see more Oxygen, Carbon sequestering and water cleansing, throughout the planet. As much of the biomass to be gained is in degraded ecosystems around the planet and as these areas are also home to the world’s rural poor, these degraded ecosystems have great growth potential for generating photosynthetic biomass of high value. If the restoration of these degraded ecosystems to achieve optimal photosynthetic biomass cover becomes a global goal, the amazing magic of photosynthesis could indeed help change our current dire course, create a new paradigm of growth and make the planet more benign for our children.

Instead of flogging the dead horse of fossil energy-based growth as ‘Economic Development’, instead of getting the population addicted to fossil energy, will we have the commonsense to appreciate the value of photosynthetic biomass and encourage businesses that obtain value for the nations Primary Ecosystem Services (PES)? The realization of which, will enrich not only our rural population but rural people the world over!

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