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Jun 22, 2017

On proposed new constitution - Victor Ivan

Expressing his views on the proposed new Constitution, Victor Ivan pointed out that a new Constitution alone cannot build a nation.

According to Ivan, what ought to have been done was to heal the nation that was sick and build the Sri Lankan nation after the conclusion of the war but said those in power had failed to achieve so far, whilst at the same time restructuring the State which had regrettably fallen into a state of corruption and degeneration. Ivan was aMarxist rebel in his youth and later became the Editor of the controversial Sinhalese newspaper Ravaya. He served as the Editor of the Ravaya for 25 years consecutively since its inception. Victor is an investigative journalist, political critic, a theorist, social activist and also an author of several books.

Following is the statement made by Ivan:

Sri Lanka that gained independence without shedding even a single drop of blood, turned into a land of incessant blood bath after 30 years and it persisted for another 30 years. It was mainly due the failure of the country to build the nation which is an essential pre-requisite of the well being of the modern Nation State which to a certain extent, had evolved in the run -up to independence. During the long period of blood shed that ensued, the country was plunged into a state of extreme incivility. The violent conflicts originated first in the Sinhalese South and later spread into Tamil North deprived the life of over a one hundred thousand people. Several thousands were subjected to untold hardships and violence. People were compelled to live amidst the fear of death. In the final analysis, while a large number of people died physically, those escaped death turned in to a lot that was spiritually dead.

The uncivilised atmosphere that prevailed in the country resulted in making not only the people, but also the State and the State institutions corrupt, inefficient and degenerated entities. The State lost its pristine image and turned out to be a virtual agent of banditry and exploitation. The role of politicians too, changed for the worse, projecting an image of a thief, a brigand pillaging public property. It became difficult to distinguish between the politicians and the criminals as they had projected an image of a hybrid product. Professionals, media personnel, artists and clergy were not an exception; they too, had become selfish and corrupt.

Ending the war

war new

After the conclusion of the internal war, what ought to have been done was to heal the nation that was sick and build the Sri Lankan nation which we had failed to achieve so far, whilst at the same time restructuring the State which had regrettably fell into a state of corruption and degeneration. It was because of the failure of the country to respond to this historical call that the crisis did not end even after the cessation of the war.

Some lobbyists who are sympathetic towards the present regime of Good Governance argue that the object of the proposed new constitution is to effect the Nation Building and restructure the State. A new constitution along cannot build the nation. It is important to note that India adopted a new constitution only after achieving a considerable progress in nation building in the ideological sphere. Even, South Africa approached the issue of making a new constitution only after fulfilling the conditions required for the nation building to a considerable extent.

After ending the war, Sri Lanka has not made any serious attempt to diagnose the causes that led to hostilities which plunged the country into an enormous blood bath. Similarly, no attempt has been made to identify the causes of the degeneration of the State. Likewise, no effort is made to address the incidents of gruesome assassinations, dreadful violence, and immense damage to properties during this uncivilised period. Also, nothing has been done to resolve the problems of land tenure occurred as a result of the people of war torn areas abandoning their lands during the war time. During the time of war, the security forces were compelled to acquire the lands belonged to ordinary citizens to set up security camps to face artillery attacks of the LTTE. Now the war is over. Yet, nothing positive and constructive has been done to hand over these lands back to their original owners or to pay compensation in case they are not transferred to them.

The process of meting out transitional justice remains at a state of stagnation. The government does not seem to be prepared to investigate into serious offences alleged to have been committed by certain members of the security forces during the final stage of the LTTE war. It appears that the government lacks the courage required to release, at least, the Tamil prisoners who were being held in custody for a longer period without taking judicial measures to prosecute them.

Constitution making

Even the process of making a new constitution is not in a satisfactory level. Rather, it is in a state of confusion. Sri Lanka had always failed to reflect the civility and respectability that is required in making a constitution for the country. Even the Soulbury constitution, the first constitution of independent Sri Lanka was adopted craftily. Similarly, after 24 years, in 1972, when a new constitution was adopted, the aspirations and the specific demands of the opposition political parties were not taken into account.

Instead, the Coalition Government of Sirima Bandaranayke adopted a new constitution resorting to the two thirds majority it commanded in the Parliament. At the same time, the government extended its official term by extra two years covertly using the clauses of the new constitution. Six year later, the constitution of 1978 was adopted using the five sixth majority of the government. Even before the ink of the new constitution had dried, the leader of the opposition was deprived of civic rights and the term of the government which commanded five sixth majority in the parliament, was extended by another 6 years by a corrupt and unethical referendum.

Thereafter, in 2000, during the reign of Chandrika Bandaranayke, another aborted attempt was made to adopt a new constitution by buying over the members of the opposition to get the two thirds majority.

This clearly indicates that Sri Lanka has failed to reflect the political wisdom and civility that constitution making demands. The present regime of Good Governance is no different. It is also pursuing the same unpleasant tradition without shedding uncivilised practices inherited from the past. Isn’t it not to persuade the MPs to support the proposed new constitution that the government, despite serious economic crisis the country is going through, has adopted a new policy of granting them several privileges and benefits including duty free concessions for purchase of super luxury vehicles which they can sell twice the price of the previous vehicles and earn a substantial profit?

Clarification of the object

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In the face of the long period of incivility, the country has been going through, the object of making a new constitution will be to achieve the task of nation building and restructure the State which is in a dire state of degeneration.

As indicated earlier, the nation cannot be built by a constitution. It can only grant the legal status to a nation which is already built in an ambience of ideological struggle. It is not only the ethnic differences required to be eliminated in the face of an ideological struggle. In an equal measure, all differences based on Caste system too, have to be rejected. Apart from ethnicity, caste too, had an equal impact on the youth insurrections erupted in the Sinhalese South and the Tamil North. This observation has also been shared by the Commission of Youth Unrest appointed by the government to investigate into to the causes that led to them. The infantry or the foot soldiers of both the JVP and the LTTE consisted of the youth of oppressed castes. Both movements spread mainly in the villages where, primarily the people of oppressed castes were living. On the contrary the spread was remote in the villages where people of Goyigama or Vellala castes were living. In this context, ethnicity attacked openly, while the caste followed suit furtively.

The difference based on both ethnicity and the caste system has to be rejected in the endeavour of nation building. Pressures exerted on oppressed ethnic groups and oppressed castes ought to be removed. But, despite the government recognising the ethnicity, an issue to be resolved in the ideological plane, it has failed to recognise caste as an issue to be addressed in this process. It is also interesting to note that while ethnicity creates differences among different ethnic groups, caste has become a source that creates differences within the same ethnic groups.

As far as the ethnic issue is concerned, the government has not made a serious attempt to discourage anti ethnic attitudes that prevail in the ideological plane. Anti- ethnic attitudes are usually shared by a limited circle of people holding extreme views and not by the majority of people of respective communities. Yet, the majority that disregards ethnic differences are not organised while the isolated circles that promote ethnic differences are well organised. Therefore, their voice creates a big uproar.

“We taught an unforgettable lesson to Tamils. Now Muslim must be taught the same lesson.” This has become the popular rhetoric of the Sinhalese extremists at the moment. It is to promote this sentiment that they are engaged in creating a Muslim phobia. Various expressions and statements being made to create hatred sentiments against Muslims are without any factual foundation. The braziers offered for sale in Muslim shops are smeared with a certain kind of chemical that may cause breast cancers is one example that can be cited in this context. In addition to the organised ideological campaign, a similar movement has emerged making random attacks on Muslim shops. Though it appears that the government is cognisant of these occurrences, it does not seem to be using the State power to arrest this trend and safeguard the interests of the victims. Does not this reflect that the government has no sound approach against the ethnic conflicts? Would it be possible for such a government to draft a sound constitution capable of resolving ethnic differences?

Restructuring the State

Not only that the government does not have a strong approach for nation building, it also doesn’t seem to have a strong vision for restructuring the State which is in a state of degeneration. Even the present government is corrupt though the degree of it may be different. It cannot be considered a clean government or one that wants to be clean. If the present government is corrupt, and it wishes to remain in corruption, one cannot expect that such a government will make a constitution with safeguards to make the government free of corruption. It is clearly seen in the government’s vision of the constitution making.

Obviously, the corruption of politicians has had a big impact on that of the government. Controlling corruption in the government is rendered impossible by the inherent corrupt nature of politicians themselves who steer the helm of the government mechanism.

Most of the politicians of pre 1977 era were not creative and judicious statesmen. But they were not corrupt. They engaged in politics for reputation and not to earn money by unscrupulous means. Politicians of that age did not gain access to earn money. The elected representatives were not allowed to do business with the government. Though they had the privilege of buying vehicles on permits, they were not allowed to sell them and earn a profit. So, they were not obsessively inclined like present day politicians to buy vehicles on permits. Parliamentarians were not allowed to act as government contractors or permit holders. There were strong laws and regulations capable of depriving MPs of their seats in a rare event that they were found violating these regulations. Albert Silva of Galle was one such MP who was deprived of his parliamentary seat as he possessed a permit for fuel trading.
That is the system in operation in almost every country ruled by the system of representative democratic governments. It is one of the most significant features applicable to people’s representatives of the countries where the rule of representative democratic governance prevails.

Breaking the dam

sri lanka parliament

In 1977, this important tradition that was maintained for prevention of the representatives of people engaging in corrupt practices was thrown into dust bin. With that they were allowed to do business with the government. The lands acquired by the government under the Land Reformation Act were sold out at very low prices, to MPs of the governing party and the government officers who were loyal to the government. Various government permits which yielded good profits were distributed among the MPs. Later, liquor permits were issued in thousands via the MPs of the government. Under the Customs Ordinance, it is a punishable offence to sell or transfer the vehicles purchased on tax free basis. Yet, ignoring this law MPs have been given the right to sell the duty free vehicles and earn a profit.

Accordingly, the ban on MPs transacting business with the government, which is an important and recognised tradition in the parliamentary democracy, was removed and they were allowed to do business with the government.

Consequently, the Parliamentarians became big racketeers transacting business with the government. Some of them bought government estates at a cheap price and became planters. Some became thriving government contractors. Some others became licensed racketeers in large scale timber deals. Some became the suppliers of building materials such as rubble and sand for government projects. Some others ended as tavern owners.

This ugly tradition is contrary to the accepted principles of democracy. And it had been a major cause of politicians becoming an extremely corrupt lot. Yet, we cannot envisage that the present government, in the process of making the proposed new constitution, will be prepared to introduce measures to change this ugly practice. Apparently, the government is trying to create a new State while at the same time preserving this ugly tradition which can be treated as the main source of corruption in the State. If the State is to be made clean and free of corruption, the opportunity given to politicians who steers the helm of the government mechanism to earn money on surreptitious means must be stopped. The best solution will be to restore the system that prevailed prior to 1977 and deprive the members contravening the rule, of their parliamentary seats.

Apart from this, another measure that can be adopted would be to strengthen the Declaration of Assets and Liabilities Law and strictly enforce it particularly on politicians. The strict enforcement of the Declaration of Assets and Liabilities Law will invariably result in the majority of politicians being imprisoned. However, the new constitution which is going to be adopted lacks a far reaching vision to prevent such practices. In this back drop, even if the proposed new constitution is adopted, it cannot be expected to make the State free of corruption. It will continue to be an unclean State in which corruption will rein unabated.

Judicial Reforms

Judiciary is the most important institution that should essentially be included in a program of State reformation. Independent judiciary is a must in ensuring the well being of a democratic system of government. The judiciary in a democratic government is entrusted with the responsibility of reviewing the functions of the executive and the legislature. Rule of law can be established only if the judiciary performs its role independently, impartially and in conformity with the law. It has both the responsibility and the authority over the executive and the legislature in preventing them assuming extra legal powers that may oppress the people. It is the judiciary that should defend the public rights and serve as the custodian of the constitution. In order to discharge this responsibility, the judiciary, in full sense of the word should be an independent entity. It should have a clear understanding of its social responsibility. Similarly, the judiciary should have all powers needed for that.

Unfortunately, we don’t have a judiciary capable of inspiring confidence in people and commanding their respect. More specifically, during the period of Chief Justice Sarath Nanda Silva, the judiciary fell into a level of extreme corruption. There were instances where even the constitution was violated. There was a serious degeneration of ethics of magistrates and judges.

The impact of devastating judgments given contrary to the spirit of law and the spirit of justice will not be confined to present only. They have far reaching impact on future. The judgment given on the extension of official term of the UNP government which had a five sixth majority in the parliament, by a referendum is one example that can be cited in this context. This judgment has not been annulled up to now. In the circumstance, even another ruler who has a majority power in the parliament can get the official term extended by a referendum. During the tenure of Chief Justice Sarath Nanda Silva, a number of judgments which violated the spirit of constitution and democratic traditions were given. To illustrate this example, the Sinharasa case is presented briefly.

Judgement of the ‘Sinharasa Case'.

Justice

The shocking judgement given on the Sinharasa case can be described as the main cause that led the withdrawal of GSP plus relief granted to Sri Lanka by the European Union. Furthermore, because of this judgement, the right of the citizens of the country to submit an appeal to Geneva Human Rights Committee under the International Covenant on Civil and Political Rights and the Optional Protocol for redress in circumstances in which the justice is not meted out by the highest judiciary of the country, was also deprived. Yet, this error has not been rectified so far. This is a clear reflection of the degree of political idiocy of the present good governance regime.

Sinharasa was a Tamil who had suffered 37 years imprisonment on alleged charges of attacking an army camp of the government of Sri Lanka. He was found guilty on a verbal statement obtained from him when he was held in custody. His statement had been recorded in Sinhala language. He was deprived of the services of an interpreter.

Sinharasa challenged the judgement and made an appeal to the Geneva Human Rights Committee (HRC). It examined his appeal and expressed that a number of clauses specifically laid down in the International Covenant on Civil and Political Rights- (14 (1) right to have a fair trial, 14 (3) right to retain an interpreter, 14(3 c) right to have a trial without undue delay have been violated and recommended that he should be given a retrial or if not be released. His lawyers made a presentation at the Supreme Court to get an order for implementing those recommendations.

Pursuant to the decision of the HRC, Chief Justice Sarath Nanda Silva took up this case for trial before a panel of judges headed by him. He held that it was contrary to the constitution of Sri Lanka to implement the recommendations of the HRC as there is no national law to implement the recommendations of the protocol pertaining to the civil and political rights covenant.

The judgement of Sarath Silva was totally against the law. There were two other previous judgments given by the Supreme Court in regard to the recommendations made by the Civil and Political Rights Covenant. One of them was given by Supreme Court judge Dr. Mark Fernando. (Weerawansa V Attorney General and others SLR-2000-P. 387-408) & the other was by Supreme Court judge Dr. A.R.B.Amarasinha' (Wickramatunga V Anuruddha Ratwatte, SCFR 228/96)
Judgement given by Dr. Amarasinha states that the citizens of Sri Lanka are entitled to the protection of Human rights Commission of UNO, and refusal to implement a decision given by HRC, will amount to deprivation of the protection ensured by the law.

Judgement given by Dr. Mark Fernando is descriptive. It maintains that a person, whose rights have been deprived of, has a claim to seek the protection of law. This is an acknowledged fact by the international law. Therefore, a person who has been deprived of that right from the highest court of the country is entitled to submit an appeal to the HRC.

Then he continues to analyse the question whether the Sri Lankas judiciary should accept the decisions of the HRC. He maintains that in terms of the clauses 27 (15) and 12 (1) of the constitution, the government of Sri Lanka and the judiciary are bound to implement the decisions of the HRC. When there were two clear previous judgments in regard to the International Covenant on Civil and Political Rights and the HRC which comes under the former, and the decisions made by it, it is evident that Sarath Nanda Silva has made an arbitrary and subjective judgment completely ignoring the set precedents. This can be described as a colossal fraud in the Supreme Court.

Furthermore, taking up this case for trial before a panel of judges headed by Sarath Nanda Silva is also contrary to the spirit of law because, at that time, there were several cases challenging the judgements passed by him were being heard by the HRC. Apart from that, the majority of judgments given by HRC in response to appeals made by Sri Lankan citizens comprised those given against the judgments of Sarath Nanda Silva. The first appeal from Sri Lanka, examined by HRC was from me. That too, was an appeal against a judgment passed by Sarath Nanda Silva. The judgment of HRC was in my favour.

In view of above, it is evident that the HRC and the procedure related to it had become a big headache for him. He used the Sinharasa case to get rid of this headache. In the final analysis, what he did was to hear a case of his own by himself and pass the judgment in his favour.

By this arbitrary judgment which was totally against the spirit of law, it was not only the rights of Sinharasa alone, but also the rights bestowed on all Sri Lankan citizens by the International Covenant that he had deprived. In the circumstance, the citizens of Sri Lanka can be described as a populace which had been deprived of the rights bestowed on them by the International Covenant of Civil and Political Rights.

It need not be reiterated that it was a great offence committed against the people of Sri Lanka. But the present regime of good governance has not made anything to rectify this serious error. How can we place confidence in a government which is not sensitive to human rights, and expect that it will introduce a sound constitution for the country, which safeguards the rights of the people.

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