Peace for the World

Peace for the World
First democratic leader of Justice the Godfather of the Sri Lankan Tamil Struggle: Honourable Samuel James Veluppillai Chelvanayakam

Sunday, August 20, 2017

காணாமல் போனோரது உறவுகளுக்கு அச்சுறுத்தல்

Sri Lanka, Anuradhapura. The Buddhist flag in front of Ruwanwelisaya Stupa, sacred to Buddhists around the world. Stock Photo
Published by RasmilaD on 2017-08-19
காணாமல் ஆக்கப்பட்ட உறவுகளின் சங்கத்தின் உறுப்பினர்களுக்கு இராணுவ புலனாய்வு பிரிவினரின் அச்சுறுத்தல் இருந்து வருகின்றது.எமது பாதுகாப்புக்கு  அரசாங்கம் உத்தரவாதம் அளிக்கவேண்டும் என காணாமல் ஆக்கப்பட்ட உறவுகளின் சங்கத்தின் கிளிநொச்சி மாவட்ட இணைப்பாளர் யோகராசா கனக ரஞ்சனி தெரிவித்தார்.
காணாமல் ஆக்கப்பட்ட உறவுகளின் சங்கம் நேற்று முன்தினம் கொழும்பில் நடத்திய செய்தியாளர் சந்திப்பில் கலந்துகொண்டு கருத்து தெரிவிக்கையிலேயே அவர் இவ்வாறு தெரிவித்தார்.
அவர் அங்கு தொடர்ந்து கூறுகையில்,
காணாமல் ஆக்கப்பட்ட உறவுகளின் சங்கத்தின் உறுப்பினர்களுக்கு இராணுவ புலனாய்வு பிரிவினரின் அச்சுறுத்தல் இருந்து வருகின்றது. கடந்த இரண்டு தினங்களுக்கு முன்னர் முல்லைத்தீவு மாவட்டத்தைச் சேர்ந்த காணாமல் ஆக்கப்பட்ட உறவுகளின் சங்கத்தின் இணைப்பாளரான மரிய ஈஸ்வரி என்ற இரண்டு பிள்ளைகளின் தாயார் இனந்தெரியாத நபர்களால் கடுமையாக தாக்கப்பட்டு வைத்தியசாலையில் அனுமதிக்கப்பட்டுள்ளார். 
இந்த தாய் காணாமல் ஆக்கப்பட்ட தனது கணவரை தேடும் போராட்டத்தில் ஈடுபட்டு மாலை நேரத்தில் தனது வீட்டுக்கு செல்லும் வழியில், இனந்தெரியாத 3 நபர்கள் மோட்டார் சைக்கிளில் வந்து இடைமறித்து தாக்கியதுடன் இந்த போராட்டத்தில் இதற்கு பின்னர் கலந்துகொண்டால் கணவருக்கு இடம்பெற்ற நிலையே பிள்ளைகளுக்கும் இடம்பெறும் என அச்சுறுத்தியுள்ளனர். இந்த தாக்குதல் சம்பவம் தொடர்பாக பொலிஸில் முறைப்பாடு செய்யப்பட்டுள்ளது.
அத்துடன் நாங்கள் இன்று (நேற்று முன்தினம்) கொழும்புக்கு வந்து எமது கோரிக்கைகளை ஊடகங்கள் ஊடாக தென்னிலங்கை எமது உறவுகளுக்கு தெரியப்படுத்த முன் வந்துள்ளோம். ஆனால் நாங்கள் மீண்டும் எமது வீடுகளுக்கு செல்ல முடியுமா என்று தெரியவில்லை. அந்தளவுக்கு எமது போராட்டத்துக்கு இராணுவ புலனாய்வாளர்களின் அச்சுறுத்தல் இருந்து வருகின்றது. அத்துடன் எமது உற­வு­களை தேடும்­போ­ராட்­டத்தில் அர­சாங்­கத்தின் எந்த பாது­காப்பும் எமக்­கில்லை. அர­சாங்கம் அமைத்­தி­ருக்கும் காணாமல் ஆக்­கப்­பட்­ட­வர்கள் தொடர்­பாக கண்­ட­றியும் அலு­வ­ல­கத்­துக்கு சாட்­சி­ய­ம­ளிக்க வரு­ப­வர்­களின் பாது­காப்பு தொடர்­பாக அர­சாங்கம் எந்த உத்­த­ர­வா­தத்­தையும் இது­வரை அளித்­த­தில்லை.
அத்­துடன் அர­சாங்­கத்­திடம் ஒப்­ப­டைக்­கப்­பட்ட எமது உற­வி­னர்­களை மீள எம்மிடம் ஒப்­ப­டைக்­கு­மாறே நாங்கள் போரா­டு­கின்றோம். இந்­நி­லையில் எமக்கும் எமது உற­வி­னர்­க­ளுக்கும் இனந்­தெ­ரி­யா­த­வர்­களால் விடுக்­கப்­படும் அச்­சு­றுத்­தல்­க­ளுக்கு  அரசாங்கம் அளிக்கும் உத்தரவாதம் என்ன என்று கேட்கின்றோம் என்றார்.

Police Intimidates Member Of EC After He Criticised Police For Working In Sinhalese In North And East

logoA member of the Election Commission, Prof.S. Ratnajeevan H. Hoole has been intimidated by the police, a highly placed source closed to the Speaker and the Chairman of the Constitutional Council told Colombo Telegraph.

Police officer Wanninayake speaks to Prof Jeevan Hoole’s elder brother Dr. Rajan Hoole with Black Maria like vehicle (WP LF 0711) and armed police
According to a complaint made by Prof. Ratnajeewan Hoole, mid-morning on 16th August, an armed police party called at the home of Prof. Hoole in Jaffna and wanted to take him away to the Jaffna police station under an old warrant issued in 2011 at the instigation of Douglas Devananda that everyone knew was vindictive. “There is no doubt that the attempted arrest was triggered by Prof. Hoole’s role as an outspoken member of the Commission and DIG Jaffna knew about it,” the source told Colombo Telegraph.
In the complaint Prof Hoole said: “The police came to my home today with a warrant for my arrest. They know who I am. There is even a (long-forgotten) sign up book at my gate for police patrols from when I joined the Commission. My house is in front of the Department of Education, a church, and a government school besides being next to a church school. The incident attracted much public attention – I feel that the Election Commission is being demeaned by publicly making out that I am a criminal. After all, how can a criminal be responsible for elections? As I detail below, the incident has evoked much fear in me on whether the Election Commission can be independent and in my wife and children on whether we can be safe in Sri Lanka.”
As Prof. Hoole says in his letter, the incident is troubling when this happens just after he challenged the police working in Sinhalese in the North and East and the Commission invoking Article 33(1)(d) of the Constitution on the duty of the President to heed the advice of the Election Commission and giving advice to the President on the postponement of election
“Democracy has been under attack before, but there was always spirited resistance. In the 1980s for example, Jayewardene never had a moment of peace. There was always a spirited opposition, in parliament and outside. Even in the worst times there were great parliamentarians, whom people of all communities could look up to and trust – H. Sri Nissanka, T.B. Subasinghe, Senator Nadesan and Sarath Muttetuwegama immediately come to mind. Cross over has become so much a disease that the majority of MPs have no set position between government and opposition, and are awaiting the right price. Never have the pledges of politicians and their words been so empty, and they don’t care,” the source said.

“The expectations from the revolution of 2015 were great and changes in the structure of commissions held out promise. One of them was the new Election Commission with three members taking joint responsibility for decisions. It was harder to control by visible and invisible pressures, than a commission of one. The present Commission has resisted political pressures and fought against postponement of elections. This incident describes an insidious attempt to muzzle it. If the nation is to sustain itself, democracy can never become meaningless. Every tier that holds it in place must be fought for before it is too late,” the source further said.
We publish below the official complaint by Prof Ratnajeevan Hoole:
88 Chemmany Road
Nallur,

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Executive Presidency, Constitution, "Supremacy" of Parliament and Separation of Powers


article_image
by Dr. A.C. Visvalingam- 

The Citizens’ Movement for Good Governance (CIMOGG) has always been against the concept of having an Executive Presidency because the concentration of state power in a single person is a sure formula for destroying good governance. An Executive President is invariably a politician with partisan views and would place his own and his party’s interests before those of the country. The deeds of J.R.Jayewardene, Ranasinghe Premadasa, Chandrika Kumaratunge, Mahinda Rajapaksa and Maithripala Sirisena provide ample evidence to support this assertion.

It is no secret that two of these Presidents appointed certain persons to high judicial positions despite well-publicized evidence of behaviour that would have been totally unacceptable at any level in the judiciary in the early years of Sri Lanka’s independence. The damage done to Sri Lanka by these appointments is incalculable. The disgraceful packing of the Courts with compliant judges would have been much less likely if there had been a sufficient separation of powers between the executive and the judiciary, allowing the latter to develop its own rules for the appointment, promotion, transfer and dismissal of judicial officers without being dictated to by the executive.

Politically-motivated interference with the judiciary is only one of the grounds why, from the mid-1990s, there has been increasing pressure from the public for a new Constitution to replace the current one. There is no doubt that a new Constitution is desperately needed and that, inter alia, it must have the elimination of the Executive Presidency as one of its mandatory objectives, together with a clearer and stronger separation of powers than we now have.

We must be alert to the danger that, during the exercise of forging multiple compromises in writing a Constitution from among the conflicting demands of all stakeholders, we could find ourselves being unwittingly dropped from the frying pan into the fire. Most specifically, there is the ever-present danger that the Constitution would create a Prime Minister endowed with all the powers of an Executive President minus only "presidential immunity". We must not let this happen or we shall be no better off than we are at present.

A glaring instance of the immense power of an (executive) Prime Minister was that of Tony Blair of the UK, who badgered the members of his cabinet to support a declaration of war against Iraq based on a fabricated story about that country possessing "weapons of mass destruction". The colossal suffering and damage caused to the people and economy of Iraq, the Middle East, Libya and many other countries by this crime cannot be quantified. The lesson for us here is that the dominance of the Prime Minister’s office must be limited.

The foolhardiness of having a too-powerful Prime Minister would be compounded if we were also to allow Parliament to be anointed with the "supreme" label. J.R.Jayewardene implicitly fashioned this concept through the wording of Article 4 of the 1978 Constitution. Anura Bandaranaike, when he was Speaker, went one step further and declared explicitly that Parliament was "supreme" and, in particular, was not obliged to respect the views or decisions of the Courts.

Whereas Article 4 of the Constitution made the judiciary totally subservient to Parliament, Articles 30-41, in their turn, gave the President almost unlimited powers. How shamefully Presidents and Parliament have exercised judicial power can be gauged from just two incidents, namely, (a) the cruel manner in which a newspaper editor was forced to grovel before the House because an inadvertent switch of captions of two unrelated photographs, and (b) the thoroughly demeaning and crude language, and unjust procedures, that were employed during the "trial" of Chief Justice Shirani Bandaranayake, who had declared correctly that a proposed piece of legislation was not constitutionally acceptable.

It is nauseating to recall that many of those who had signed the impeachment motion against Ranasinghe Premadasa later claimed that they had not read what they had signed! In the case of the 18th Amendment, the text of it was not seen by most MPs until just before they were dragooned into voting for it. Most of the 117 MPs who signed the impeachment motion against Shirani Bandaranayake were not given the opportunity or time to examine critically what they were being asked to sign and its implications. These three cases demonstrate how little the MPs concerned would have reflected upon their obligations in respect of the doctrine of public trust. With MPs of this calibre comprising the majority in Parliament, should the people consent to this body being classified as "supreme"? Assuredly not.

CIMOGG stresses that the people are supreme. Article 3 of the Constitution asseverates that sovereignty is in the People and is inalienable. Sovereignty includes fundamental rights, the franchise and the powers of government. The people never surrender their sovereignty to anyone or anybody but, from time to time, for practical reasons, they delegate the exercise of their powers of government to the legislature, the executive and the judiciary whilst retaining their fundamental rights and the franchise. Parliament, being a subordinate body to which the people delegate some of their powers for a fixed period of time, cannot logically, morally or lawfully claim "supremacy" over the very people who have granted it such powers.

The standard picture of a pyramid with Parliament at the apex and the people at the bottom, with the Grama Niladhari Divisions, Pradeshiya Sabhas, District Council and Provincial Councils in between, is an affront to the sovereignty of the people. If the pyramid analogy is to be used at all, it should be inverted so that the people are located at the broad top face and power flows down to the point at the bottom, where Parliament may be considered to be situated. Indeed, it would be far more sensible to regard all these institutions as being located in concentric circles at one level with the people at the periphery, the Grama Niladhari Divisions in the next inner circle, and so on, to Parliament at the centre.

The Constitution has given Parliament, which should be concerned largely with legislative matters, unlimited authority over the executive and the judiciary. Those who have been brought up to think of the UK’s unwritten Constitution and established conventions as being the "gold standard" that is being followed in Sri Lanka fail to appreciate the fact that the historical processes that Sri Lanka has experienced over the past two millennia are unlike those which apply to the UK and that this "gold standard" cannot be adopted blindly. By virtue of conventions built up over hundreds of years in the UK, the executive and the judiciary cannot be bulldozed by their Parliament. There are numerous independent mechanisms in all three arms of government to ensure that the government acts with the benefit of the informed advice of highly professional technocratic and other specialists. Transparency and full accountability are the features that ensure that there is little room for corruption or gross inefficiency.

Our constitution-writers have given Ministers both legislative and executive powers but without the strong financial and other controls that members of the UK public service and the judiciary exercise strictly. In contrast, our public servants have been stripped of all independent authority and have to function at the unfettered will and pleasure of our Presidents and Ministers. Another important differentiating factor is that UK voters are far more issue-oriented and less personality-oriented than their Sri Lankan counterparts. Hence, the separation of powers cannot be left at the mercy of long-established UK conventions but must be spelled out unambiguously.

The four "subjects" mentioned in the title above are critically important and should be dealt with circumspectly and comprehensively in a new Constitution. To these must be added the burning need to include features that would help forge a truly Sri Lankan identity, without emphasizing differences of race, caste, religion, class, gender, colour, occupation and other divisive classifications. It would also be salutary for MPs to be reminded firmly and constantly by the public that the people will continue to exist whether there is a Parliament or not; but Parliament cannot exist without the people.

(The writer is the president of CIMOGG – Citizans’ Movement for Good Governance)

www.cimogg-srilanka.org

acvisva@gmail.com

Book Review: Government and Politics in Sri Lanka — Biopolitics and Security

The Conclusion returns to the question of whether, following the biopolitical analysis set out in this book, the holding of regular elections, and the existence of state institutions based on those of western liberal states, is sufficient to refer to Sri Lanka as a democracy.

by S. V. Kirubaharan- 
( August 20, 2017, Paris, Sri Lanka Guardian) To write a review of a highly informative book is as
difficult as writing the same. While a nasty review can damage a well-written book, a book with no substance can be promoted by a good review. However, when in the hands of intellectuals, academics and professionals – individuals holding balanced views will value a good book.
Thinking on these lines, with reference to former Ceylon, now Sri Lanka, “Government and Politics in Sri Lanka: Biopolitics and Security” written by Dr A.R. Sriskanda Rajah, published by Routledge Taylor & Francis Group in the United Kingdom, caught my attention. In his ambitious work of one hundred and eighty pages, the author divides a wide range of material into six chapters.
The first chapter, titled Biopolitics contains introductory sections on Grasping Biopolitics and on Reconceptualising war. It discusses Foucault’s concept of biopolitics, how this is being used by scholars today, and how it can be understood to be a system of power inscribed with war.
Chapter two deals with Constructing an Ethnocracy and is set out under four subtitles: War through Law; Law through ‘Lawlessness’; The Double-edged Sword and Completing Ethnocratic State-building. This chapter demonstrates how postcolonial Ceylon went about transforming itself from a democracy to an ethnocracy. It examines the role of law, the violence of law, and the violence of ‘lawlessness’ as Ceylon produced the effects of battle and transformed into an ethnocracy. It also analyses the Ceylon state’s use of emergency laws to crush the first Sinhala Marxist insurgency of the Janatha Vimukthi Peramuṇa – JVP in 1971, allowing its security forces to commit mass atrocities against Sinhala Buddhists suspected of involvement in the insurgency. In doing so, the crucial question of how states are able to justify the use of violence against populations in whose interests they claim to use violence against other populations existing within their borders, is explored.
The third chapter, In ‘Defence’ of the Race/Species, includes the sub-titles: The Boomerang Effect; The Terror of Law and the Right to Kill; The Reformed Scaffold Service and Shifting Alliances and the ‘Enemy’ Within. Here the author, Sriskanda Rajah is concerned with the period commencing 1972 (when Sri Lanka became an ethnocracy) to 1990 when the Indian Peace Keeping Forces – IPKF departed from Sri Lanka (after occupying the predominantly Tamil speaking north and Eastern provinces for nearly three years). The focus is on the Sri Lankan state’s use of police brutality and military violence to unleash terror on the Tamils. Next, the reforms made to the violence of ‘lawlessness’ is discussed. The consequence of these tactics by the state was to turn lawlessness into an unofficially organised form of terror. The author then moves to a discussion of the brief tactical alliances the state made, first with India in 1987 to counter the threat posed by the Liberation Tigers of Tamil Eelam – LTTE, and later in 1989 with the LTTE to oust the Indian troops from the island. Throughout this period, in the South of the island, the state faced another Sinhala Marxist insurgency from the JVP. The author concludes this chapter with an examination of Sri Lanka’s use of tactics of terror during this tumultuous period of the island’s history to crush the JVP insurgency, and solidify and unify the loyalty of the Sinhala Buddhists to the state.
In his fourth chapter, the author gives his title as Unleashing Jihadism and ‘Starving the Enemy’ which includes the Background to Tamil – Muslim relations; Jihadism vs. the LTTE; the New ‘Friendly’ Species and the Power of Economic Embargoes. It is interesting to note that here the author examines, Sri Lanka’s efforts in the 1990s to regain state control over the territories it lost to the LTTE consequent to the Indian troop withdrawal from the North and East in March 1990. The author provides an analysis of the tactical alliance that Sri Lanka made with the Jihadi extremists to drive the LTTE out of the populated areas of the Eastern province. In doing so, it shows that even though biopower may be exercised along ethnological lines by states upholding ultranationalist ideologies, this does not mean tactical alliances cannot be made with power complexes that adopt competing extremist ideologies. In the same chapter he also examines Sri Lanka’s use of economic embargoes on the LTTE held areas of the Northern Province to weaken the LTTE’s fighting capabilities and its ability to secure the territories that it controlled. This shows that it is not only law, but other power relations, in this case the economy, that are also capable of producing the effects of battle.
War Through ‘Peace’ is the title of chapter five and it contains Joining the Liberal Bandwagon; Tilting the Military Balance; the LTTE’s ‘Peace’ Strategy and Vanquishing the ‘Enemy’. This takes up the period, February 2002 (when a ceasefire agreement was signed between the LTTE and the Sri Lankan government) to the LTTE’s military defeat in May 2009. The author shows how Sri Lanka, exploiting the Global War on Terror – GWoT and advocating neoliberal economic policies, used diplomacy as a way of waging war on the LTTE, leading to the latter’s eventual isolation at the international level; thus creating conditions for the state to commence the final military offensives to vanquish the armed Tamil (secessionist?) movement. Here, the author deals with how Sri Lanka perpetrated mass atrocities, unprecedented on such a scale in the island’s history, on the Tamils living in the LTTE held territories.
Here I do not agree with the author’s branding of the LTTE as a ‘Tamil secessionist movement’. I do not know whether it is a mistake or the author’s view since end of the war, to name the LTTE as ‘secessionist’. In every peace negotiation the LTTE agreed to examine any proposal for a permanent political settlement, put forward by the Sri Lanka government. A negotiated settlement could be within the sovereignty of Sri Lanka or outside. This decision was in the hands of the Sri Lankan government. Here, I do not know whether the so-called ‘Oslo declaration’ was in the mind of the author. In fact, the ‘Oslo declaration’ was a case of putting the cart before the horse. Without putting forward any viable solution, the Sri Lankan government wanted to start negotiations with limited terms and conditions. This fact was not properly understood even by some involved in the negotiations.
The sixth and final chapter, Managing Life in Pain contains Camps and Disciplinary Power; Producing the ‘Truth’ and Securing the Ethnocratic State Order. This is followed by the conclusion. The book also includes a map of Sri Lanka, abbreviations and acknowledgements.
This final chapter focuses on the state’s military defeat of the LTTE and its consequences for the Tamil people caught up in the zone of fighting. The state established mass internment camps to detain the hundreds of thousands of displaced and traumatised Tamils, and surrendered LTTE cadres, in the immediate aftermath of the collapse of the LTTE’s armed struggle. Using witness testimonies, the chapter expounds on how the use of rape, torture and mass scale ‘disappearance’ disciplined the displaced Tamil civilians and surrendered LTTE combatants into submission, and how this became central to Sri Lanka’s biopolitics of securing the ethnocratic state order. The author addresses how these methods produced the effect of battle and complemented the state’s actions to produce a ‘truth’ about the LTTE, and to deny the mass atrocities perpetrated by its security forces in the final stages of the armed conflict.
The author insists that the election of a pro-western, pro-market government in Sri Lanka since January 2015 and the smooth transition from one regime to another, has led to western leaders and diplomats hailing Sri Lanka as a resilient democracy.
The Conclusion returns to the question of whether, following the biopolitical analysis set out in this book, the holding of regular elections, and the existence of state institutions based on those of western liberal states, is sufficient to refer to Sri Lanka as a democracy.
This book, “Government and Politics in Sri Lanka: Biopolitics and Security” by Dr A.R. Sriskanda Rajah is dedicated to his eldest sister Mala, thanking her for her support and encouragement. In a special note, he adds that without Mala’s encouragement, he would not have been able to write it. Also, he thanks his elder sister Divya, other family members and friends who have supported him.
This book supplies an in-depth analysis of history, politics, political negotiations and the approach of the Sri Lankan state. It should be read by intellectuals and academics, especially from the South who voice and write pretext after pretext against any political solution for the Tamils in the North and East.
The construction and orderly design of this book confirm the author’s academic credentials.
This book was launched in Westminster on 19th July. Politicians from both governing and opposition parties in the UK, intellectuals, academics and activists participated in the event.
The Road to School: Access to Education in the Plantation Sector

RAISA WICKREMATUNGE on 08/16/2017

For children living in Spring Valley estate, close to Badulla, the day begins at 5:30 am, when they begin to get ready for the bus to school. The bus leaves at 6:20 am and travels for 3 kilometres. From there, it’s another 2 kilometre walk to the Spring Valley Tamil Maha Vidyalaya. The Vice Principal says a few of the children walk the entire way – a journey of around one and a half hours.
This is still better than the plight of schoolchildren attending Old Peacock Tamil Vidyalayam, Gampola, according to its principal, S Rajaram. Some schoolchildren here have to travel as far as 12 kilometres. The farthest estates, perched high up in the hills, are inaccessible by vehicle as the roads are so bad. Due to this, many of the children have to walk a large part of the journey. There are buses along the route, but children have to get up very early to make one bus, or risk being late for school. Many of them choose to walk home to save money – some of them walk between four or five kilometres a day.
S Rita*, an estate worker from Nuwara Eliya says her children have to travel 6 kilometres for school – and that includes children in Grade 1, aged 6 or 7. Often, children have to take a three-wheeler to get to school, which can cost as much as Rs. 1,000 a month, she says. Rita’s eldest daughter is studying for her Advanced Level examinations in Norwood School. She has to travel around 3 kilometres by bus, and this costs money.
“Often, I only have about Rs. 4,000 or Rs. 5,000 remaining from my salary at the end of the month. I have to make do with this to somehow pay off school expenses. Meanwhile, everyone talks about free education, but you still have to make donations, to get your child into school.”
This story, tracking barriers to accessing education for children living on estates, was compiled on Adobe Spark. Click here to view it in full, or scroll below:

To view the rest of the series, click here.

August Ruling: Advocating a federal form of government is not advocating separatism


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by Rajan Philips-

On August 4, the Supreme Court dismissed a petition seeking a court order that the Ilankai Thamizh Arasu Kadchi (ITAK, historically called the Federal Party, in English) is in violation of the Constitution insofar as one of its aims and objectives in advocating a federal form of government is the establishment of a separate state within the territory of Sri Lanka. Three Judges who heard the petition disagreed. In what some newspapers have described as a landmark ruling, Chief Justice Priyasath Dep, Justice Upali Abeyratne and Justice Anil Gooneratne declared that advocating federalism within the existing constitution is not advocating separatism. Although much of the contentions in the case would appear to have centered on the translation of terms (the Sanskrit and Tamil translations of the English term – federalism), the ruling is indeed landmark for at least three reasons.

First, the ruling adopts a flexible approach recognizing the overlapping features of unitary and federal constitutions as opposed to rigidly insisting on the immutability of a unitary constitution. As the Court elaborated, "there could be unitary states with features or attributes of a federal state and vice versa. In a unitary state, if more powers are given to the units it could be considered a federal state. Similarly, in a federal state, if the Center is powerful and the power is concentrated in the Centre it could be considered a unitary state. Therefore, sharing of sovereignty, devolution of power and decentralisation will pave the way for a federal Qform of government within a unitary state." The Justices even offered an example of devolving power to provinces without contravening the constitution: the Thirteenth Amendment.

Second, the ruling must put to rest the baseless accusations and canards that the ITAK is doing something illegal in advocating federalism. The Supreme Court has now confirmed the obvious: federalism is not illegal.But not being illegal does not make federalism politically attractive, or even viable in the short term. For now, it is sufficient to take note that the Supreme Court has ruled that it is constitutional to have "a federal form of government within a unitary state." The ruling also constrains the ITAK, or any other organization, to work within the existing unitary state and not outside it. But the existing unitary state is not immutable, but flexible. And the Thirteenth Amendment is here to stay as reaffirmed now by the Supreme Court.

The third reason is more symbolic than substantial, but no less significant. Anecdotally, it used to be known in Tamil circles that Tamil lawyers and litigants often preferred to have their civil and criminal cases heard by Sinhalese judges as opposed to Tamil judges. Greater objectivity and fairness, the reasoning went,could be expected from the former, free from the peninsular parochialism and prejudices that may come into play with the latter. On the role of the judiciary on political and constitutional matters, however, Tamil notables took somewhat of a schizophrenic position after seeing appellate reversals of favourable original court decisions in constitutional matters: to wit, the citizenship of the Tamils of Indian origin (the Kodakan Pillai case of the early 1950s), and the linguistic status of Tamil public servants (the famous Kodeswaran case of the 1960s). More recent instances include the injudicious reasoning by dissenting Supreme Court judges in the 13th Amendment constitutional case, and the North-East merger case in which the principle of ‘equal protection of the law’ was cavalierly turned on its head.

It is against this backdrop, that the ruling of Chief Justice Priyasath Dep, Justice Upali Abeyratne and Justice Anil Gooneratne could be seen as a welcome sign for the future. In fairness, judicial prejudices are not peculiar to Sri Lanka. Historically, judiciary in every society has been a major bulwark of social conservatism, economic inequality and political exclusion that victimized peasants, workers, minorities and, most of all, women in every social class or stratum. It has taken more than a century of struggle, education, and the exposure to and experiencing of the ‘other’, to progressively change societies and along with them their judges, though not all of them and not everywhere.

Sri Lanka has takeQn half a century to barely start putting its share of baleful genies in the bottles of its history. One would hope there will be no reopening of them and the evolution in judicial thinking will continue in a positive direction. But the danger of the re-releasing of evil genies and the risks of cultural and political recessions will never go away permanently. Just watch the United States of America and its unfolding cultural and political chaos as its sociopathic president goes crazier and crazier from one day to another. The former Vice President Al Gore has given a one word advice to Donald Trump: Resign!

What’s in a name: Unitary or Federal?

Thirty years ago, writing in November 1987 (Lanka Guardian Vol. 10, No. 13) during the Thirteenth Amendment controversy, Dr. Colvin R de Silva anticipated the 2017 August Supreme Court ruling and elaborated on the overlapping between unitary and federal constitutions. "There is no model," he wrote, "laid up in heaven, so to speak, from which any deviation will deprive a constitution of its unitary character. It is the same with federal constitutions. Thus, there can be unitary constitutions which have strong ‘federal’ features, as also federal constitutions with strong unitary features."

He went on to emphasize that "the unity of a country is not determined by its state-form. The federal form is often claimed to carry this danger; although, historically, the federal form of state has always been the means of holding together in a single state units which would otherwise be separate states." The Comparative Political Scientist Alfred Stepan (Columbia University) made the same point in 1999, and used as a specific example the experience of Sri Lanka: "a territorially multilingual and multinational unitary state that feared "the slippery slope" of federalism, could not cope with its ethnic divisions and plunged headlong into a bloody civil war that has lasted more than fifteen years."

More pertinently, Dr. Colvin’s "holding-together" phrase is the term in political literature for one of two ways in which federal or quasi federal systems come into being. The other is "coming-together", in which separate jurisdictional units – provinces or states, come together to set up a federal form of government. The United States, Switzerland, Australia are classic examples of the coming-together type of federal systems. The often cited holding-together examples are India, Belgium and Spain, where pre-existing unitary state formations devolve power to their sub-national units while retaining their strong unitary features. Brexit or not, Britain is seemingly on course to becoming another ‘holding-together example.’

To the two models, Stepan has added a third one: "putting-together" federalism; and he includes the former USSR as an example where, in his view, a multinational state was coercively created out of pre-existing independent states. This is debatable, although now purely academic if not nerdy, because what was there before the USSR, were not independent states, but the Tsarist Empire and, what Lenin called, ‘internal colQnialism’.

As models go, Sri Lanka, if it were to execute the Supreme Court license to achieve "a federal form of government within a unitary state," would fall into the holding-together category. But, as I noted earlier, a political proposition merely because it is legal does not become immediately viable. Federalism is still the ‘F’ word in many Sri Lankan political quarters, and even those who are less uninformed will not yield more than an inch beyond the 13th Amendment. But 13A + One Inch is certainly better than 13A Minus. The latter was a serious consideration during the last years of the Rajapaksa government along with the push to even repeal the amendment.

As things are, the arrogance of the Rajapaksas has given way to the ineptitude of good governance. While the present government has made ambitious starts on many fronts, it has achieved little or nothing on any one of them. The constitutional file is no exception and despite loads of effort by expert foot-soldiers, the political leadership has shown no evidence of strategic thinking or even serious purpose. The government is also hamstrung by the bond scandal and penthouse peccadillos and has lost the moral standing to advocate a major constitutional overhaul. And with chronic disunity within the unity government, the prospects of reaching consensus on controversial changes and securing the requisite two-thirds majority are becoming increasingly bleak. Nonetheless, the August 4 Supreme Court ruling should be acknowledged as a landmark ruling that would enable future governments to pick up the pieces and hold Sri Lanka together in better ways than it has been held since independence.

Disempowerment & Alienation: A Fact Of Life For Many In Sri Lanka


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Dr. Siri Gamage
Sociologists and other commentators often talk about social mobility, the idea that some people particularly youths in lower socio economic classes, move up the class ladder as a result of education, employment, business, politics and other opportunities. However, there us reluctance on their part to talk about how and why people get disempowered, alienated and helpless in society. Yet this process impacts the majority of people in a country like Sri Lanka. A deeper investigation and reflection is necessary on this subject if we are to understand the full extent of the process. One may even call this downward social mobility but there is no need to complicate the matter by adding sociological jargon when we can avoid it.
To understand disempowerment, we have to understand empowerment. If we talk about economic empowerment we know how individuals, families and other groups empower themselves economically. Avenues may include business, professional employment, and migration to other countries or even entering into politics. Families and groups thus empowered form various networks based on a range of criteria including the industry sector, profession, old school and university ties or even family and caste relations. Links established this way function to facilitate a comfortable life for the members of such networks and groups. For example, if one needs to get something done from a government department, hospital, police station, the port or even a company, he or she finds friends or relatives who can assist on a personal level.
Political empowerment is a subject that does not need any introduction, as many are familiar with this process through experience, media, and the bloated cabinets etc. Nonetheless, it involves acquisition of legitimate/formal power through elections by engaging in party politics and being rewarded with elected and other positions i.e. Heads of various corporations. These positions within mega institutions, some with economic significance such as banks or Insurance Corporation or Sathosa, offer certain privileges including material comforts by way of official residences, cars, drivers, and even domestic staff. Once in such positions, occupants empower themselves and strengthen their networks further.
Cultural empowerment also goes hand in hand. In particular, this is associated with material and consumer culture that is spreading in the country like a wildfire. At times, such empowerment involves participation in traditional cultural events, e.g. getting a seat to observe Kandy perahara, which is otherwise sold in open market for Rs 5000-10000.
What about disempowerment then? How do people disempower economically? When someone doesn’t have a job to earn an income he or she disempowers. When a person’s salary is not enough to feed a family or to make meager savings, the same happens. When someone has to live in a sub standard rented house for life that person disempowers. When a person has to work as a labourer, landless farmer, construction worker etc. devoting his energy for a meager wage he gets disempowered. Domestic workers, tea pluckers, pottery and juggary makers disempower along with small fishermen when their products cannot be sold for a better price. When there are severe inflation people in lower socio economic classes disempower.  For example, many feel that the buying power of RS 1000 today is equivalent to buying power of RS 100 a few decades ago. As the process of economic disempowerment has continued for many decades it has become multigenerational involving a majority of people.
What about political disempowerment? When there are no local bodies with elected representatives, people disempower. When law enforcement authorities treat citizens like animals, peoples empower. When human rights are violated by those who exercise power the same happens. With each election result, it seems a majority of people disempower politically rather than empower because the elected representatives move away from the people and their living contexts and relocate in comfortable and luxury surroundings which assuming emboldened identities which then need to be augmented by symbolic and costly material paraphernalia.  Social distance between the elector and elected becomes wider and the alienation of disempowered greater. When government administrators at local and provincial levels treat people as subjects rather than empowered citizens, people get disempowered. Language use also can be one such avenue of disempowerment as is the middle class and upper middle class etiquette visible among high office holders.
Cultural disempowerment is associated with the economic and political versions. Those who are not able to conform to the norms and or practices of high culture, a concept that sociologists define by using various criteria, people get culturally disempowered. For example, how many can afford to stay a few days in a five star hotel or resort in Colombo and elsewhere? How many can afford a buffet lunch at Galle Face hotel for RS 3900 per head? How many can afford to travel in a medium size car? How many can speak English properly with bureaucrats for official purposes? How many can afford to send children to prestigious local and international schools? How many can keep domestic servants let alone modern houses with servant quarters?
Recently I travelled by intercity train between Peradeniya and Colombo. All the way I could witness huts like small houses along the rail line belonging to disempowered people who have set up such structures on railway land. Roofs are covered with galvanized sheets and asbestos. Some have cardboard sheets in between. The disempowered do not travel in air-conditioned buses. There are no such buses in the private or public fleets for the use of disempowered majority anyway. Supermarkets such as Keels are out of bound for these people due to unaffordability. So are the private hospitals and international schools, not to speak about foreign universities. Hopelessness rein supreme among this layer due to multiple disempowerments. Yet those aspiring to empower themselves politically and by implication economically by using various discourses using the vernacular language efficiently seek their vote.

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Barbaric behaviour cannot be dismissed as ‘not quite torture’

Sunday, August 20, 2017
 
The Sunday Times Sri LankaThat Sri Lanka’s new Minister of Foreign Affairs has chosen to flippantly wave aside the stupefying conduct of the Inspector General of Police (IGP) in grabbing an employee by the collar, threateningly raising a hand and berating him, is unfortunate to say the least.
Not reflective of the law

The IGP’s fury had been occasioned by the failure of a hapless lift operator to participate in compulsory meditation sessions ordered by him. Judging from the video footage, it is the IGP who seems to need supervised and strictly enforced intensive meditation, not his helpless employees. I will return to that salutary point later.
 
But when questioned on this incident, the new Minister is reported to have said days into assuming his new post, to quote, “torture is something that will severely injure a person….but (this) was a person abusing a person; you can’t equate it to torture” (Economy Next, August 19th 2017). If these remarks are correctly attributable to him, the Minister (himself a lawyer of repute at a point) is in need of a summary brief on the jurisprudence regarding ‘torture, cruel, inhuman or degrading treatment’ prohibited by Article 11 of the Constitution. This claim is quite contrary to the weight of precedent on the matter.
 
The Supreme Court has held that it is well settled law that the constitutional prohibition will apply to physical as well as psychological trauma. Extreme pain of mind and the circumstances of the case or in other words, the standing of the torturer and the powerlessness of the victim are key factors. In one 2003 precedent for example, verbal abuse meted out by members of ministerial security in forcing a lawyer, his wife and their baby to get out of their vehicle was ruled to attract the constitutional bar (2003, 1 SLR, 270). The Minister would be well advised to freshen up his knowledge of the legal bar.
 
Following the example set by the IGP

Indeed, this news report is perturbing in more ways than one. The Minister is also reported as referring the matter to the ‘independent police commission’, saying that ‘any disciplinary action against the police chief’ is outside his authority. However, it is a well-established fact that under the 19th Amendment, the IGP does not come within the purview of the National Police Commission (NPC). This was a much critiqued limitation of the first NPC as well under the 17th Amendment.
 
Notwithstanding, apart from the law and the knowledge (or the absence) thereof, let us assess this IGP against standards of ordinary decency, if this is something which we still recall. To put the discussion in context, this is an IGP who once broke down in tears before the public. It is also this same IGP who was captured on television cameras abjectly promising the Minister of Law and Order that he would not take steps against a ‘favourite’ of the previous Government.
 
Yet and as aggravating as such conduct may be, this pales into insignificance when compared with the current incident a few months ago. Is this the standard of propriety expected from the head of law enforcement? What if ordinary men or women go around grabbing people with whom they disagree with, by the collars and intimidating them for whatever perceived slight or dereliction of duty? What about the Juanis Singho who waits patiently in a government office for hours while the staff stands around gossiping and drinking cups of tea? Would that rightly infuriated citizen be justified in taking the culprits by their collars or sarees as the case may be and threatening them?
 
Or venturing into the province of law enforcement itself, when police officers refuse to record statements in violation of the law and a complainant uses strong language, the likelihood is that he or she will be put feet first into the police cell and face criminal charges the next day. If so, then why is the IGP protected from the consequences of his actions?
 
Safeguards not meant to enable jesters

Strengthening removal procedures of high-level public servants like the IGP and the Attorney General by consequential legislation after the 17th Amendment to the Constitution was following hard advocacy to reform the law, upheld by numerous judgments of the superior courts. This was due to the need to safeguard the independence of the offices.
 
But this safeguard is not meant to enable individuals holding such office/s to behave like court jesters. Certainly the conduct of this IGP, held out as an appointment that ran the gamut of checks and balances under the misleadingly feted 19th Amendment to the Constitution, only illustrates the colossal failure of that exercise.
 
Moreover it is sardonically amusing that the IGP’s fury is absent in even an iota thereof when his police officers abstain from performing their duties or when politicians call upon him to protect their favorites. Rather, a pitiful subordinate has to face his wrath. Compulsory meditation sessions may certainly benefit individuals. However the very idea that it will be a panacea to Sri Lanka’s systemic failures, particularly in law enforcement is a cruel mockery. In the first place, the IGP should properly enforce the gargantuan and comprehensive Police Departmental Orders that have been meticulously drafted from decades ago by those with expertise. If implemented to the letter, these will suffice to address the lack of discipline of his officers at least as a start.
 
One incident too many against the IGP

On his own part, the new Minister of Foreign Affairs needs to be a tad more cautious in his pronouncements. Barely two years ago, he resigned from his then portfolio as Minister of Law and Order when he waded, arms flinging (metaphorically speaking) into a highly unwarranted controversy in Parliament. This was when he defended his onetime client, maritime security firm Avant Garde with scant regard for serious conflict of interest questions.
 
Previously, this column has reflected on the games of ministerial musical chairs that the Government delights in. Resignations of ministers are paraded as some great sign of accountability and these same gentlemen are later brought back quietly into the Cabinet after the fuss dies down. Such cynical games are simply not acceptable. And the Government will be keenly watched on this count. Its waning popularity, which is a matter of obvious fact outside the rarefied ‘Colombo bubble’ as it were, can only be further negatively impacted.
 
In the meantime, the law must work against the IGP as it would against any other individual. Simply put, this is just one reprehensible incident too many.

People’s power drives Constitution

Leaders of mobilisation should stamp authority on Constitution’s content


article_imageSri Lanka, Anuradhapura. The Buddhist flag in front of Ruwanwelisaya Stupa, sacred to Buddhists around the world. Stock Photo
Forum demanding: "Respect the People’s Mandate" Left to right: Sumanthiran, Jayampathy, Athauda, DEW, Michael Fernando and Ajith Perera (speaker)

by Kumar David- 

The government had no option but to throw Ravi Karunanayake under the bus. Even if one accepts the version that his wife and daughter, in cahoots with Perpetual Treacheries, were the parties to the penthouse deal and that he had no knowledge thereof, formal propriety demanded his removal. It also removes a thorn since allegations of corruption are an obstacle to enacting a new constitution. Loss of confidence in the government on corruption and economy harms the constitutional project. In politics each thing has knock on effects on others.

January 8 (2015) had three objectives; Rajapaksa’s march to dictatorship had to be halted, the new government must end corruption, and a democratic constitution abolishing the executive presidency must be enacted. Where do we stand today? The first has been achieved and democracy seems assured for the foreseeable future. As for the second, maybe incidents of big time theft and the amounts stolen by this government’s cronies fall short of the records set by Rajapaksa era gangsters, but public perception is "ung okkoma horu" (they are all rogues). The third item, the constitution, is what this piece is about.

Who is taking the constitution forward?

It has become clear that the Sirisena-Ranil (S&R) combo does not have the spunk, the gall and the balls to lead mass mobilisation subduing impediments to the constitution. So new actors have pushed them aside and taken matters into their hands. From civil society we have the Just Society Movement founded by the reverend Sobitha now guided by Sisira Jayamaha and a string of distinguished persons, and Purawasi Balaya (People’s Power) where Gamini Viyangoda, Janaranjana and Chandragupta Mauriya are those I am familiar with. There is Rights-Now whose firebrand is Philip Dissanayake and cheerful leader, Sudharshan Gunda. I give names because with the milquetoast duumvirate S&R scooting into the shadows and as others coming forward to take up the January 8 mandate, the public needs to know who they are.

Another force accepting the challenge is a grouping of parties and personalities. Prominent are those who spoke at a "Respect the January 8 Mandate" forum on August 3; DEW Gunasekra, leader of the Communist Party, the JVP’s Vijitha Herath, Athauda Seneviratne an SLFPer with an LSSP background, the ULF’s Jayampathy Wickramaratna and the UNP’s Ajith Perera. The TNA has thrown its weight into the constitution making process. Its spokesman Madiyaparanam Sumanthiran also addressed the forum. Enough is enough; no more concealing Tamil involvement in the constitution. Let us defy bigots in the sangha, racists in the Joint Opposition, hunched professors and English-literate, bogus-Marxist mouthpieces. Let openly declare: "This is a democratic, plural, non-divisive constitution carried on the shoulders of the Sinhala, Tamil and Muslim people. Damn racists, damn peddlers of religious opium and damn opportunists!"

Frontline leaders must

call the tune

Those who put their neck on the line earn the right to call the shots. If the national leaders take fright and hide under the bed while others take the fight on their shoulders, then they earn the right to influence the constitution’s contents. Furthermore they must not allow themselves to be used to push provisions that are not acceptable to the people’s movements.

Let me illustrate. If you tease the drafters "Hey comrades, where is your constitution?" they squirm "Once those rats up there make up their minds on key points like structure of state and devolution, we drafters can get it out in weeks". It is time to go further. The parties and persons who lead the battle in the public arena should not allow themselves to be at the beck and call of the rats. Those who lead have the right to insist that the prize is worth the sweat. Though some compromises are unavoidable, they must, on the whole, ensure that it is not merely a contract handed out by R&S, but that the contents make up an acceptable charter. Note this well DEW, Vijitha, Jayampathy and Sumanthiran!

He who pays the piper calls the tune; in politics paying the piper means leading the fight. I make no bones about it; I am instigating civil society groups and parties in effective mass leadership to impose their stamp on content. Am I inciting a no-compromise deadlock? No, there is a need for compromises with the sloppy side and the catatonic R&S duumvirate so as to get two-thirds in parliament and to win a referendum. But let’s not make the mistake Colvin, the LSSP and the CP made in 1972. Let us not hide from the people and from our cadres the imperfections issuing from such compromises; let constitution making be a learning process for the people.

"Unto the breach dear friends"

A breach has opened. The Rajapaksa-JO game plan has no content other than racist snarls and religious bigotry. What is the JO-gang’s socio-economic programme? What its constitutional agenda? Zilch, nothing, damn all! Aside from this chasm, there is another void, state leaders reluctant to fight and content with stillness and modest humility. On August 15 the next step to set the teeth and stretch the nostril wide, hold hard the breath and bend up every spirit to full height, was kick started.

The people of Lanka will dishonour not their mothers and attest that those whom they call fathers did beget them. Or to descend from poetry to prose: OK Rajapaksa, ok JO, the fight is on, the plebs will show you the mettle of their pasture. (The little romps in this para are stolen from Henry V).

The objective of the satyagraha is to pressure the government to live up to the mandate on which it has been backsliding; a poor show in bringing the corrupt – previous and current - to book, hither and thither uncertainty on the constitution, and an inability to inspire confidence about good governance. The last matter, in part, is inability to discipline its own ranks, e.g. the Karunanayake incident, Wijedasa Rajapakshe courting racists, and the bond scam. In part it is incompetence, e.g. cancelling Sampur coal power station, the corrupt coal purchase contract, and worries of sleaze in the award of the proposed LNG power station contract. More worrying is the government’s reluctance to confront disruptors head-on, defeat trouble makers like the GMOA and student hooligans, and its unwillingness to smash thugs who attack Muslim institutions and monks who incite the thugs. Good governance is getting one’s house in order but it also entails crushing reaction, hooliganism and thuggery.

The satyagraha was supported by several organisations and an encouraging first step in an island wide campaign to continue till the government wakes up to its pledges. Some elements in the sangha, following the JO’s lead, are attempting to undermine the new constitution. The reply of the people’s movement on August 15 to these reactionaries was clear: "Go fly a kite!"

To digress for a moment we must commend the strength and spontaneity of American direct democracy in Charlottesville, Virginia, last week. White supremacist and neo-Nazis armed with torches, staves and weapons were confronted by thousands of Americans, young, old, mostly white. One woman was killed and 19 injured when a car driven by a racist rammed into protesters. President Trump first made an SWRD in 1958, JR in 1983, type of address to the nation only to fan the flames instead of stopping the mob. Two days later even Trump, under intense pressure, did condemn the white racist thugs. Unfortunately, SWRD, JR and their respective cabinets, could never rise above their depravity. The American protesters did not back off till the racist mobs dispersed. What a difference from Lanka where in 1958, 1977, 1983 and many other occasions, the Sinhala-Buddhist public, with few exceptions, did not lift a finger to staunch the carnage. I wish I could understand the reason.

Direct democracy in America is supplemented by strong institutional instruments of democracy; for example Congressional inquiries and Special Counsel (Bob Mueller) whose probe is expected to dig deep. All this bears witness to strong institutional frameworks underpinning democracy. I understand the reason for the difference with our sham institutional framework, the Acting AG and his department included, but a quote first.

Here is Rajan Hoole in Colombo Telegraph on August 11, 2017:

QUOTE

"A particular instance that concerns Mr. Yasantha Kodagoda is the 2007 – 2009 Presidential Commission proceedings into the murder by the security forces, and home guards under their direction, of 17 aid workers serving Action Contre la Faim (ACF). The following describes the role of Yasantha Kodagoda who was supposed to lead the evidence before the Commission: The Government’s control of the CoI through the role played by Deputy Solicitor General Kodagoda and the complicity of some of the Commissioners, has allowed the extraordinary attempts at cover up described above to take place as well as an obvious and deliberate failure to pursue questioning and investigation that could implicate the Government. See our Special Report No.33 of 2009. (http://www.uthr.org/SpecialReports/spreport33.htm )".

END QUOTE

This is only an example. However, without implying any excuse for sham artists in government, law enforcement, military and the legal-judicial system, I believe that one reason for relative concavity in our institutions is that democracy is young in our country. And unlike India, sans a multi-cultural and plural social bedrock and without a secular polity, it will take us longer to come up to spec.