The TNA has submitted its proposals to the Experts Committee appointed to draft a new Constitution (The Island 04.01.2021). What it has asked for is far in excess of devolution granted by the 13th Amendment. The powers that are demanded exceed those granted to the states in India, which is a federal country. They seem to have forgotten that they also must show some conciliatory attitude, when everybody is talking about reconciliation and communal harmony. They must know what is possible and what is not. They must know that extremism begets extremism. There are on both sides of the divide people, with extremist points of view on sensitive matters like land, language, religion, etc. If peace and harmony among communities are the desired goals of everybody, particularly political leaders, they have to be more flexible. Asking for more and more following on the steps of SJVC who adopted a “little now and more later” policy will not help.
The TNA has asked for Regional Councils, virtually with all the powers except defence. The Executive presidency is to be abolished, and all executive powers are to be taken over by the Cabinet of Ministers. The president would be a figurehead. The governor of the regional council, who will be appointed on the recommendation of the chief minister, will not hold executive powers, and these would be taken over by the ministers of the proposed regional council. Nature of the state obviously will not be unitary but united. These powers, if granted, would be far in excess of those granted under the 13th A.
The proposed regional council would obviously comprise North and East merged as envisaged in the original 13th A. These two provinces were demerged by an order of the Supreme Court on the 16th October 2006, which declared that proclamations issued by President J. R. Jayawardene, temporarily extending the tenure of the merged North-Eastern Province were null and void, and had no legal effect. The proclamations by JRJ were necessitated due to the fact that a referendum on the merger was not held as required by the 13th A. It was well known that the Muslims and the Sinhalese in the Eastern Province were against a merger. However if a referendum had been held in the two provinces together, the vote would have been in favour of a merger as Tamils would be a majority when the two provinces joined for the referendum. However the Sinhalese leaders did not want to merge these two provinces as it would go against the interests of the Muslims and Sinhalese. TNA does not seem to have taken these issues and their implications into serious consideration. They seem to be still stuck in their four Thimphu principles.
The TNA proposals have to be seen as an attempt to delink their areas of habitation as much as possible from the writ of the central government. It seems that the proposal is to devolve to the Regional Council all powers and functions that can be carried out at the level of the regions on the basis of the principle of “subsidiarity”. It is on the basis of a similar conceptual framework that the separatists have been agitating for an independent state in the Northern and Eastern provinces since 1972. The principle of subsidiarity is defined as “the principle that the central authority should have a subsidiary function, performing only those tasks which cannot be performed at a more local level”. Obviously, subsidiarity may be suitable for big countries but could be an unnecessary financial burden on small countries like Sri Lanka.
The powers the TNA has asked for include those pertaining to land and police. Land is a subject under the 13th A that had given rise to controversial rulings by the Supreme Court. Once it held that state land can be utilized by the Provincial Councils for their projects, but later in 2011 it ruled that state land should remain under the ownership of the central government for the utilization at national level. Police powers had not been allowed to be taken over by the PCs though it is provided in the 13th A. These two subjects, if devolved, could give a PC that has a centrifugal tendency much leverage to work towards its goal. For instance an independent police force could engage in subterfuge and subversion with the connivance of the provincial politicians. A terrorist who commits an act of terror in the South could escape into the North, and find refuge. We must not forget that separatism and terrorism have not been totally eliminated in this country.
The TNA proposals tend to change the nature of the state quite significantly, and also the single sovereignty of the people in Sri Lanka. In the present constitution, people’s sovereignty is reposed in the executive president by people’s franchise. The President may delegate his executive powers to other institutions such as the ministers, and also in accordance with the 13th A to the governors he appoints to the provincial councils. By abolishing the executive presidency, the need for an executive governor who represents the president — forming a link between the centre and the periphery is got rid of. The executive powers of the governor are to be taken over by the ministers of the RC.
The TNA proposals seek to do away with the concurrent list of subjects that come under the purview of both the central government and the regional councils. This is another delinking measure that TNA wants to be adopted, to strengthen the autonomy and independence of their regional government. Such an arrangement would be federal in nature, no matter what it may be called.
Worse, it would be a federal state based on ethnic lines. It has not been very successful in countries where it was tried, eg. Ethiopia, Pakistan, South Sudan.
Liam D Anderson, who has done an in-depth study of the subject, concludes that Ethno-federalism is the worst form of institutional arrangement (2016).
The TNA seeks to get more than federalism as can be seen from its demand for powers to deal directly with foreign countries for aid, loans and investment. What the TNA is asking for is almost a separate state. If all these powers are granted, their struggle to strengthen the case for the legal establishment of a separate state would succeed to a great degree.
The TNA proposals, if granted, would have adverse effects not only on Muslims and Sinhalese living in the North and East, but also on Tamils. These adverse effects would be felt mainly in the economic, social and cultural spheres. Tamils have a huge economic interest in the South, in the Sinhalese community. Cordial relations between communities is essential for the development of economic connections. For instance the wholesale market in Colombo, in which the Tamils have a huge presence, cannot thrive unless there is trust and understanding among different communities involved in this business. A political rupture in the sensitive areas like land, language, religion could affect their relations.
The Muslims and Sinhalese who live in the North and East would feel that they have been made minorities, and may be subject to discrimination. Such sentiments would not help reconciliation, but promote discord. Social and cultural relationships will be hampered and the whole country may not progress very much socially, culturally and economically.
It is time the TNA took into consideration the present realities and also politics in the Tamil areas. Adopting a more extremist posture in an attempt to boost its flagging popularity is not what is needed. What is needed is a course correction, and develop reconciliation strategies that would be beneficial to the Tamils who live not only in the North and also elsewhere so that everybody could get together and develop their country.
N.A.de S. AMARATUNGA
Contempt of court and democracy
Donald Trump has finally left the White House President Joe Biden is acting fast to revoke many of the Trump decisions affecting the US and the world.
The world is watching the new trend in the US, and the claims that Democracy has been restored. There will certainly be many more actions needed to restore or ensure Democracy in the USA – because it needs much more than universal franchise. In fact, on the subject of universal franchise – Sri Lanka is far ahead of the US-nearly 70 years. But, let’s be cautious in making any claim that we are a wholly a democratic nation or country…we certainly need much more to claim that.
Democracy aside, we are now in the midst of a raging debate on the Judiciary. Film star-turned-politician, Ranjan Ramanayake is the stuff of the debate here, with his four years rigorous imprisonment for the offence of Contempt of Court. Are we still in the colonial stage and thinking on Justice and Contempt? How fair, equitable and honourable, are our law and traditions on Contempt of Court?
We are now having a big issue whether India should be given 49% of the East Container Terminal in the Port of Colombo. There are also increasing and loud disapprovals on the delay in obtaining Covid-19 vaccines from India. Let’s put these aside, and with one of our most popular and thrice re-elected member of Parliament, having to face four years of rigorous imprisonment, see if we have in any way gone beyond the colonial days of subjugation under the British, on the matter of Contempt of Court — a key factor of Justice. Are we ready to admit that this Hindu majority neighbour is far ahead of us in this key area of Justice? Or, should we just keep in line with the colonial rulers?
Let’s be honest – we have no proper law on Contempt of Court. We have a constitutional provision, which does not lay down the proper legal practice in dealing with this “offence” against the law. There is no minimum or maximum sentence, no provision for appeal against a Supreme Court, which happens to be the only court where the case is heard.
Is this the substance of Justice?
Look at the realities. Ramanayake is accused of having insulted the judiciary and members of the legal profession. He said what he believed. Have they always been clean, above dishonesty and deceit, and what about his democratic right to freedom of speech and comment?
We are still not too far away from a former Chief Justice, who acted in favour of a political leader in respect of Tsunami relief funds. He even admitted this several years later. Is that the stuff or substance of a non-corrupt judiciary?
Is this the situation in which Ranjan Ramanayake must suffer four years of rigorous imprisonment, and also lose his membership of Parliament, and be unable to contest a parliamentary election for many years to come?
Just look at Parliament he was in until last week and the judicial order for imprisonment; he has no other convictions. One member who was elected after being found guilty of murder is allowed to participate in the House sittings with the consent of the Speaker. Another member who has been five years and more in remand custody is now fully free, after the Attorney General’s Department found evidence against him isufficient as regards the murder of a member of Parliament at a Christmas Day church ceremony in 2005.
Just look at some of the Indian judgments on Contempt of Court. In the Bikram Birla Case on indecent, insulting comments on the judiciary the judgement was imprisonment for one month and a fine of Rs. 200.
More recently, Indian lawyer Prashant Bhooshan, who made on contemptuous statements via Twitter, was fined just one rupee, and brief imprisonment if the fine was unpaid.
Well-known journalist, author and social activist Arundhathi Roy, on charges of insulting the judiciary was sentenced to jail for one day. Shouldn’t we learn from this Indian trend? Another matter that comes to mind is whether it is proper for the institution (or persons) allegedly hurt by the actions or comments of a citizen, hear and give judgment on one’s own case?
So, why not have a different judiciary – possibly with retired senior judges or persons with such experience and eminence – to hear cases of Contempt of Court?
Also, why not have proper legislation laying down the exact explanation of contempt and the minimum and maximum punishments, as well as provisions to keep the guilty out of prisons on the basis of good behaviour? Isn’t this the stuff and substance of democracy.
We certainly don’t need either Joe Biden or the Queen of England to teach this. It is the task of our own lawmakers, including those sentenced by the courts who are now making our laws.
This is the issue of justice and legality, together with civic rights and common sense that Ranjan Ramanayake has brought before us, as he suffers four years of rigorous imprisonment, that bothers the minds of democratic citizens.
India – Aussie: Good lessons to Sri Lankan cricketers
By Dr D. CHANDRARATNA
Turnarounds, we know from history, can never be predicted. But Indian lower order debutants did a magnificent turnaround last week that will go straight into history books. There is much to be learnt from the recently concluded dazzling cricket series between Australia and India. What is interesting to note is that some of the new players, who excelled in this Test, have overcome turnarounds in their real lives, too. These are lessons for Sri Lankan cricketers who have not really grasped the significance of playing for one’s country.
The Australian papers carried the stories of the new caps handed before the Gabba Test and how they snared the chances with both hands. Natarajan, is the son of a loom worker who had no money for luxuries, like cricket gear and shoes. For many years, Natarajan, who was asked to remain in Australia only as a net bowler, says he had to think a hundred times before investing in new shoes in his earlier life. His mother wept with joy when she saw him representing India, on TV, on that momentous day in Canberra. Siraj rose to become India’s new ball bowler, despite being born to a poor rickshaw driver. His father died and he couldn’t perform his last rites as he was in Australia on national duty. His rich neighbour, a retired Army man, throughout his local cricketing life, sponsored Washington Sundar, born to poor parents. His name was Washington. Sundar Senior had earlier selected the religious name Sri Nivasan for his first male son, but at the last moment changed his mind and named the baby ‘Washington’ as a tribute to his benefactor. Before his untimely death, he had mentioned that if he had another son he would name him Washington Junior. So much for the debt of gratitude. Navdeep Saini’s father was a government driver and could not afford expensive cricket coaching for his son. So Saini played exhibition matches with the tennis ball at Rs.300 a match to fund his dreams. These stories should inspire future generations of cricket players in our developing country.
A media blog reported that ‘All their failures, all their struggles, all their doubts and all their insecurities – all that was settled once and for all in this Test match’. Also there is something else. They not only sustained tremendous pressure, but also took hard knocks all over their bodies against ‘one of the best Australian attacks ever’. In doing so, they have made us realise that while a five-hour IPL match can create instant celebrities, Test Cricket, which stretches over five days, creates real heroes.
Coming back to those hard knocks and injuries they sustained, it is perplexing as to why the bouncer is not banned from the game yet. It’s no brainer to rid the sport of this menace. It is sickening to see medium built cricketers, especially from Asia, getting hit by the heavily built muscle men bowling at the rib cage and above, to intimidate and possibly kill the sportsmen. What one may ask is the sportsmanship of the world’s best bowler from Australia bouncing to the world’s worst batsman, other than to injure him or even kill him. Hope this will be eradicated from the game, and sooner the better. Penalizing the bowler ‘a posteriori’ is meaningless after the damage is done. All things these days are science driven, and why are the injuries bouncers’ cause an exception. This weapon, invented by the West, should be banned in international cricket. Anything that gives an unfair advantage to one side is, as per the famous aphorism goes, ‘ is not cricket’. Cricket is a competitive sport, no doubt, but we do not treat the opponents as enemies. It is only a game and not a war game.
In the same vein, it is time to put a stop to the racial and vulgar sledging mostly by the western cricketers, as was experienced by Ravi Ashwin in the recent series. We need not put up with excuses such as that ‘we need to grow up’, ‘do not be sissies’, etc. The time to grow up ‘to be vulgar’ is not necessary culturally, and/or morally anymore. We must have the guts to educate the world body that the time to abide by lessons of the Empire days is long gone past. If the umpires cannot stop the taunts, the players have a right to walk off the field than sacrifice their wicket. I cannot understand why the cricketing authorities, particularly the Asians, do not stand up to the antics of White Europeans in the playing field. No fieldsman has the right to torment any cricketer, no matter the complexion, to gain an unfair advantage. This is the 21st century and we should not be bowled over by our former colonial friends anymore. Once again such behaviour is also ‘not cricket’.
Is government in self-destructive mode?
The government seems to have forgotten the two main factors that propelled it to power. One factor was the threat to the national interest that developed due to the evil deeds of the previous government in their disastrous tenure, and the other is the deleterious effect the ruined economy had on the poor people. Governments which never forget what helped them come to power and face electoral debacles.
Of the two political parties that had governed this country, the SLFP is more nationalistic and the UNP is more neo-liberal and pro-West. The latter governed this country from 2015 to 2019, and adopted policies that made the country almost a vassal of the West, and also ruined the economy by robbing the Central Bank. Nobody wants to invest in a country where the government robs its own central bank. Further, that government colluded with the separatists and Western powers to hound the war- winning armed forces. Those misdeeds on the one hand caused an upsurge of nationalism among the middle class and the professionals, and severe hardship among the poor. These two groups that account for more than two thirds of the population could easily be rallied against the government, as never before.
The electoral system that was in operation was not expected to allow anything more than a thin majority, but given the people’s frustration now SLPP won with a huge majority. The economy and nationalism are the two main factors that decide elections in Sri Lanka. Here it is the economy of the poor people, the large majority, that matters. This is evident from the fact that during the period 2010 to 2015 all economic parameters like the GDP, debt ratio, inflation, etc were favourable but the SLFP government lost the election, because their development effort, notwithstanding all indices, did not help the poor people. It seems those big projects that resulted in good economic indices like a high GDP, did not alleviate the hardship of the poor.
This government has the opportunity to base its economic policies on nationalism, to help those who improve the lives of the less affluent. More than 60% of people who voted for this government are poor rural people. The government should have focused on these people.
More than 70% of people live in the villages and are sustained by an agricultural economy. Yet, the government in its recent budget has allocated less than 6% to the development of agriculture. Although it has stopped the import of some goods that could be produced locally, and this has helped the local farmers to some extent, much more should have been done for the development of agriculture.
Not enough is done to initiate the local manufacture of seeds, fertilizer, aggro-chemicals, storage and machinery. At least 20% of the budget should have been allocated for the agriculture, plantations and fisheries sectors. These are the major areas of the economy that need to be developed to improve the living conditions of the rural population. It will also lessen our dependence on foreign imports.
Further, if more money is invested in this sector, it may be possible even to give employment to those workers who are returning from abroad due to Covid, and also reduce the number of people leaving the country for semi-slavery, which is a disgrace to the country, not to mention its adverse social impact.
This is the time for this government to lay the groundwork for the development of the rural economy, health, education, household income, housing, sanitation, availability of potable water etc. It has not allocated sufficient funds for the education of poor people. Economy cannot be improved without developing education. Rural schools lack basic facilities like toilets, pipe- borne water, electricity, buildings. We have seen on TV children and teachers holding umbrellas during classes as roofs are leaking. By developing the national economy the government can “kill two birds with one stone”. Economy of the poor could be improved without compromising the national interest. A national economy would make optimum use of natural and human resources. Experts need not be imported for simple development work and also for solving connected problems. For instance, entomologists need not be brought from abroad to deal with the problem created by the Sena caterpillar. Governments may not have to sell or lease valuable national assets like the harbours, airports, industries sector, if those are better managed. This government pledged in its election campaign to protect the national assets. But now it seems to have forgotten that promise. 6.9 million people who voted for it are disappointed. This is another reason why the government is losing its popularity. No foreign power should be allowed to force the government to sell the country’s national assets. In the context of today’s global geopolitics, Sri Lanka is in a position to resist such pressure.
Further, surely, we cannot be lacking in technical and managerial expertise to run state enterprises. If we are short of money, it is better to wait till we improve our economy and are in a position to find the money. Someday things will improve and we will be able to operate them profitably. If we sell even 49% that is almost half, and we may never get it back. Another area that the government has failed is the environment protection sphere. Unscrupulous racketeers are allowed to do much damage to forests, wetlands, lagoons and other valuable ecosystems which are detected only after the damage is done. Are the officials responsible for looking after these national assets blind, or are their palms well-oiled or are politicians behind these activities. These activities are anti-national and are viewed as such by the people. Unless the government remembers that 6.9 million voted for it, most of them the rural poor, and realizes quickly that the lives of rural people have to be developed based on national economic policies, which make optimum use of natural and human resources available in the country, look after national assets and protect the environment, it will be in trouble come the next election.
N.A.de S. AMARATUNGA
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