24 November, 2020

Blog

A Constitutional Dream 

By Nihal Jayawickrama

Dr. Nihal Jayawickrama

Dr. Nihal Jayawickrama

A few days ago, a member of the government parliamentary group announced that the government will shortly begin drafting a new constitution. He also spoke about Parliament being transformed into a constituent assembly. He spoke of a referendum. Perhaps the time is opportune to identify which features of the present constitution should not be repeated, and what new features ought to be included, in the new constitution.

A national consensus

A national constitution is a document that crystallizes a “consensus” among the citizens as to the nature and character of their State and the manner of its governance. That is not a historical fact, because citizens do not actually sit and arrive at a consensus on what their constitution should be. But it is a legal fiction that gives the constitution legitimacy. It raises the issue as to how and through what mechanisms such a consensus may be arrived at. Whatever the mechanism, constitution-making is not the prerogative of the government. To entrust that task to a government is, as Senator S. Nadesan QC observed in 1970, comparable to what the outcome might have been if at Runneymede, the Barons of England had invited King John to draft the Magna Carta. The truth of his observation is evident if one reflects on the processes through which the three recent constitutions of this country were drafted and adopted.

The drafting processes

The 1946 Constitution was based on a constitutional scheme submitted to the British Government by the Board of Ministers of the State Council. It was prepared by Sir Ivor Jennings without any public participation. The only constraint was that it should be acceptable to three-quarters of the 58-member State Council in which 19 members belonged to minority communities. It was in many respects a replication of the Westminster system of government. It simply created the principal institutions and defined their separate powers and functions. It also contained certain safeguards for the minority communities. But the Royal Commission that was appointed to examine the scheme spent three months in the country travelling through the provinces, meeting various interest groups, recording evidence at public sessions, and gathering information at private discussions. Its recommendations were accepted by the State Council by 51 votes to 3. A young assistant legal draftsman, sitting with a typewriter at his home in the small town of Panadura, gave legal shape and form to these proposals which, when incorporated in an Order-in-Council, became known as the 1946 Constitution of Ceylon.

In sharp contrast to this method of public consultation, the drafting of the 1972 Constitution commenced within a framework of 38 immutable “Basic Resolutions” which the Minister of Constitutional Affairs described as being “completely in accord with the United Front and Government policy”. The draft constitution, prepared by a drafting committee of ten professionals of whom I was one, was published for public comment, with the caution that any proposals for amendment must be in conformity with the Basic Resolutions. This meant that only matters of form, detail and language would be considered. Consequently, the original draft with very slight modifications was adopted as the 1972 Constitution. Similarly, the process of drafting the 1978 Constitution commenced with the appointment of a select committee of parliament to “consider the revision of the 1972 Constitution”. It held 16 meetings, at some of which I participated as legal adviser to the two SLFP members, Mrs Bandaranaike and Mr Maithripala Senanayake. Finally, much to our surprise, the draft report submitted at the final meeting had annexed to it a completely new draft constitution which had never been previously submitted to the select committee. It was described as being in accord with “the Basic Principles accepted by the 1975 Party Sessions of the United National Party”. Notwithstanding this drafting history, both these constitutions begin with the assertion that “We the people of Sri Lanka . . .do hereby adopt and enact this Constitution”.

A government/parliament drafted constitution

There is a significant difference between the two constitutions drafted by governments and the one recommended by a commission after consultation with the people. The 1972 Constitution was designed to establish the supremacy of the legislature, while the 1978 Constitution, established the supremacy of the executive presidency. They reflected the policies of the two principal political groupings of the south. The voice of the north was neither heard nor recognized. By no stretch of one’s imagination could these be described as reflecting a national consensus. The constitutions that the politicians drafted and imposed brought authoritarianism, inefficiency, corruption and divisiveness. What this country was subjected to under them could not possibly have been what the people desired for themselves and their children.

Those still familiar with life under the 1946 Constitution will recall that its non-ideological flexible framework enabled both right-wing and centrist political parties to be elected to office, and for them to implement both free market and regulated economic programmes. It withstood the tremors caused by the attempted military coup d’etat of 1962, and the whiplash of the 1971 JVP insurgency. Seven general elections produced five different governments. The dominant political culture of the times was a widespread acceptance of democratic governance and the rule of law.

Constitutional Commission

If any lessons are to be learnt from the mistakes of the past, the task of drafting the constitution should be entrusted by Parliament to a constitutional commission; a politically independent and representative body. To it, the government and others will be able to make representations on an equal footing. When the commission publishes its report together with a draft constitution, there should be an opportunity for a national debate. Thereafter, it will be for Parliament to decide whether to enact that constitution, with or without amendments. Such a constitution may claim to reflect a national consensus. This method has been successfully adopted in several countries of the Commonwealth. Indeed, there are numerous precedents from across the democratic world that we should seek to emulate, not pretend not to know or see.

Referendum

The government spokesperson also suggested that the new draft constitution may be referred to the approval of the people at a referendum. A referendum may be feasible on a single, specific question, such as Sunday shopping, Poya holidays, or even the name of the State, but it is wholly unreliable on a constitutional document. To submit a draft constitution to the people at a referendum, in the certainty that the overwhelming majority will not even read it, is to invite them to vote against it because they disagree with a single provision or some other extraneous element. Two decades ago in Canada, the Charlottetown Accord, a significant constitutional agreement designed to give effect to the multicultural character of that country, agreed upon by all the First Ministers of the provinces and the First Nation leaders, was rejected at a referendum for widely divergent reasons, one of which was the widespread unpopularity of the then Prime Minister.

Unnecessary Provisions 

There are several provisions in the present Constitution which are unnecessary, meaningless, emotion-charged, divisive and destructive. Let me identify a few of these.

Name of the State

The Republic of Sri Lanka was not enhanced in stature or repute by the change of its name in 1978 to the grandiloquent ‘Democratic Socialist Republic of Sri Lanka’, a description borrowed from North Korea. Countries do not usually change their names, but we had already done that six years previously from “Ceylon” to “Sri Lanka”, putting in peril one of our principal sources of foreign exchange, “Ceylon Tea”.

Sovereignty

To assert that “sovereignty is in the people and is inalienable” is wholly unnecessary because in a Republic sovereignty resides in the People. This provision was introduced in 1972 to emphasize that power was no longer derived from the British Crown. It served a symbolic purpose as a declaration of independence through a constitution enacted outside the existing legal framework. It was reproduced in the 1978 Constitution without any explanation, and has been repeatedly misinterpreted by judges to stultify the legislative process.

Unitary state

It is unnecessary for the Constitution to proclaim that Sri Lanka is a “Unitary State”, whatever that might mean. The People’s Republic of China, with its numerous autonomous provincial governments, is a unitary state. Within that unitary state, Hong Kong has its own legislature, its own judicial system based on English common law, its own court of final appeal consisting of both local and foreign judges, its own currency, and its own immigration laws which require other Chinese citizens to obtain a visa to enter the territory. What then does “unitary state” mean? The whimsical intervention of a minister, acting on a sudden impulse, resulted in the inclusion of the term “unitary” in the 1972 Constitution. He may not have anticipated the consequences of his action. The 1978 Constitution not only adopted this section, but made it unamendable except by a referendum. This impetuous, ill-considered, wholly unnecessary embellishment has reached the proportions of a battle cry of individuals and groups who seek to achieve a homogeneous Sinhalese-Buddhist State on this island.

Buddhism

As a Buddhist, I believe that tolerance and pluralism form the basis of the philosophy that the Buddha preached. I am saddened by the worldly roles that monks have arrogated to themselves and politicians have bestowed on them. I consider that providing monks with official residences and ostentatious limousines is a desecration of Buddhist philosophy. If others too believe as I do, they would insist that there be no reference to Buddhism in the constitution. It was a mistake to have included it in 1972. The question of constitutional protection for Buddhism was first raised on that occasion by lay organizations such as the All Ceylon Buddhist Congress and the Maha Bodhi Society who urged that Buddhism be declared the state religion. Some senior monks emphatically opposed the concept of a state religion, and appeared to be more interested in the establishment of ownership of property required for the performance of rites and rituals. The original provision sought to impose a duty on the state to protect the institutions and traditional places of Buddhist worship, but that metamorphosed over time into a requirement that the state shall give to Buddhism “the foremost place”, and shall “protect and foster the Buddha Sasana”.

This requirement, whatever it means in respect of what is essentially a philosophy of life, identifies those who profess their belief in the great religions such as Hinduism, Christianity and Islam as being “the other” in the Sri Lankan polity. It is time we recognized that in this multi-ethnic, multi-lingual and multi-religious secular country, everyone has the right to freedom of thought, conscience and religion. If Buddhism was able to survive in the hearts and minds of the people through 450 years of western colonial rule, the intervention of the state is surely not necessary to keep it alive in the free, sovereign and independent Sri Lanka. National reconciliation and reintegration require that Sri Lanka should assert its secular character, as, for example, India and Singapore have done. In some countries, the clergy are prohibited from seeking election to parliament, the rationale being that a priest is capable of exerting undue spiritual influence on the voter. Is there any good reason why we should not follow that example?

Official languages

Language is not only a mode of communication; it is also the medium through which knowledge is acquired. It is unfortunate, but true, that Sinhala does not serve either purpose adequately. Political leaders with foresight and sagacity, across the African continent and in countries such as India, Singapore and Malaysia, retained English – now the acknowledged international language – and adopted it as the medium of instruction and administration to ensure that their peoples could communicate with the world beyond their geographical boundaries, and acquire the knowledge that now emerges as rapidly as the old is debunked, and equip themselves to serve the global community in capacities other than as domestic helpers and semi-skilled workers. It would be a reality check for our politicians if they were to ask the youth of this country which language they wish to be educated in.

Essential Innovations 

What would I wish to see included in the new constitution?

A Constitutional Head of State

For a quarter of a century after independence, this country had a constitutional head of state. In the next thirty-eight years, the head of state was also the head of government. Which institution is preferable? The former symbolized the state, not the ruling political party or alliance. He was a unifying figure who provided stability to the state. He was accessible to anyone of whatever political persuasion, especially when the heavy hand of government was felt. He performed the ceremonial functions of the office, leaving to the political head of government the resolution of the important matters of state. Although the constitutional head of state was required to act on advice, I am personally aware of several occasions when President Gopallawa requested reconsideration, and even declined to act as advised until he was furnished with good and sufficient reasons for doing so. When, in 1974, the great conflict arose between the National State Assembly and the Constitutional Court, it was only in the presence of President Gopallawa that the Judges were willing to speak with the representatives of the Government. In a highly politicised state such as Sri Lanka, the restoration of the constitutional presidency is imperative.

A non-executive Legislature

Since 1978, the distinction between the legislature and the executive has not merely been blurred, but has virtually ceased to exist. When nearly every member of the government parliamentary group is appointed to executive office, and members of the opposition who cross the floor are similarly rewarded, parliament is reduced to a token assembly capable only of validating government decrees. Self-interest becomes an overriding consideration, and parliamentary life is equated to employment which one cannot afford to lose. Parliament should represent the people, make laws, and hold the government to account. To perform these tasks, members should be elected from geographical constituencies as they were until 1977. They should be relieved of executive duties; and instead required to monitor, through select committees, the performance of the different ministries. In a second chamber, representation through functional constituencies may provide the unique expertise that the first chamber may not posse

A non-parliamentary Executive

It is an indisputable fact that, with very few easily recognizable exceptions, cabinet ministers of the present and past governments have possessed neither the intellectual capacity nor the experience and integrity, to handle the great affairs of state. To how many of them will you entrust responsibility for your own personal affairs? The proliferation of ministries in order to extend the field of patronage has reduced government to such a state that, were it a corporate body, it would have succumbed to bankruptcy or been driven to dissolution. In an age when most governments across the continents consist of technocrats who are experts in their respective fields, individuals who can confidently communicate with their counterparts abroad on an equal footing, should we too not draw our ministers from among the best and the brightest in the professional world? They should sit in parliament, steer legislation, and be accountable to it, but without a vote. The single exception will be the Prime Minister who, as head of government, should be an elected member of parliament who commands its confidence.

A Constitutional Court

No constitutional provisions can restore integrity in our judiciary. Perhaps the implementation of the internationally recognized code of judicial conduct, which Sri Lanka has chosen to ignore, may restore some credibility to the institution. Meanwhile, it would help if a new Constitutional Court is created, at the apex of the judicial hierarchy, to exercise the fundamental rights and constitutional jurisdictions, including the judicial review of legislation. It will enable the regular existing courts, including the Supreme Court, to focus on disposing the enormous backlogs in civil and criminal cases that have developed over the years, especially with our judges having to also service the military dictatorship of Fiji.

Judicial Review of Legislation

It is particularly important that the judicial review of legislation be restored. It is when a law is being applied that its negative impact on a fundamental right becomes evident; not when a Bill is examined in the abstract, as is the present system. Also, the meaning and content of fundamental rights do not remain frozen in time. For example, the right to life, which was originally thought to prohibit only the arbitrary deprivation of life, has over the years been interpreted to include the right to food and the right to livelihood, and protection from the illicit dumping of toxic and dangerous substances and waste, access to medical services and the protection of the unborn child. Or the concept of torture, which now includes minimum or mandatory sentences, and corporal punishment in schools. These are contemporary definitions of constitutional provisions which judges and lawyers may not recognize at any given time when a particular bill is examined in the abstract.

The Public Service

The civil service in this country was once the pride of Asia. I have ambivalent thoughts on whether its abolition and replacement with the Administrative Service in the 1960s was a progressive measure or not. When I was appointed a permanent secretary in 1970, my colleagues included M Rajendra, C.A. Cooray, Arthur Ratnavale, Mahinda Silva, J.B. Kelegama, P.B. Karandewela, James Lanerolle, Nissanka Wijeratne, A.E. Gogerly Moragoda and Baku Mahadeva. They were men of knowledge, experience and integrity. The standards they and their predecessors set and observed are now distant memories.

The 1946 Constitution required a permanent secretary to perform his functions “subject to the general direction and control of his minister”. General direction referred to matters of policy only. In the 1972 Constitution, the word “general” was deleted. Thereby the Minister, and through him numerous parliamentarians and constituents whom he wished to humour, became directly involved in the routine administration and decision-making processes of government departments. The process of politicising the public service began. Good governance requires the re-establishment of the independence of the office of permanent secretary.

Fundamental rights

Over 30 years ago, Sri Lanka signed and ratified the two international covenants that define the universally accepted civil, political, economic, social and cultural rights. But successive governments failed to give constitutional force to the rights recognized in them, or to provide effective remedies. The 1978 Constitution selectively designated a few of these rights as fundamental rights and subjected even these to numerous restrictions. For example, the right to life is omitted. Others omitted include family rights, the right to privacy (a significant omission in the context of telephone tapping), the right to property, the freedom to leave the country, the right to seek, receive and impart information and ideas, the right to a fair hearing in respect of civil rights and obligations, and the rights of accused persons. “Birth or other status” is not a prohibited ground of discrimination, thereby enabling the perpetuation of the concept of illegitimate children. And, of course, none of the economic, social or cultural rights are recognized. Finally, all existing law is declared to be valid and operative notwithstanding any inconsistency with the chapter on fundamental rights. That means that the entire body of law enacted over a period of 176 years, a veritable armoury of archaic powers and more recent intrusions into human dignity, remained in force notwithstanding any conflict with fundamental rights.

When the citizens agree to be governed, what they insist in return from the rulers is that their rights and freedoms be effectively guaranteed. The constitution should provide, as it does in many other countries, that an international treaty, when ratified, will have the force of law, superseding any inconsistent existing law. Alternatively, at least the provisions of the two international human rights covenants should be incorporated in the constitution. That is not only a matter of sound commonsense and prudent governance; it is also a solemn treaty obligation.

Ethnic and religious minorities

The tragedy of Sri Lanka is that many of our politicians have refused to recognize the fact – the unalterable, immutable and enduring fact – that we are a multicultural country. In the contemporary multicultural state, minority communities have rights in common with, and no less than, everyone else. Indeed, because of the need to protect their distinctive character and identity, minority communities, even enjoy additional rights. For example, their physical existence is protected by the criminalizing of genocide, by recognition of the right to seek asylum, and by the prohibition of discrimination. International human rights law now guarantees the right of minorities to use their own language, to profess and practise their own religion and the right to enjoy their own culture. International law also recognizes the right of a minority to determine its political status, and the right to participate effectively in decision-making, both at regional and national levels. The application of these principles is non-negotiable, and cannot be made subject to the will of the electorate. They should form an integral part of a national constitution. We have so far failed to do so, and the consequent events, both tragic and destructive, are now a matter of history.

Conclusion

We need to remember, and never forget, that today’s power-holders are, as yesterday’s were, merely trustees for the time being. This country belongs to all of us – all twenty-one million of us. We have the right not only to be heard, but also to actively participate, in determining the national consensus that will form the foundation of a new constitution for our country. We need to look ahead to the next twenty-five years and ask whether the constrictive framework of governance prescribed in the 1970s is appropriate or adequate to meet the challenges of the new millennium. Instead of repeated assertions of sovereignty, which reminds one of the fish that grows in a pond and considers itself the king of the sea until it is introduced into the ocean, we must awaken to the reality that Sri Lanka, is now inextricably linked to the global village. We must not overstay our welcome in the pond when the ocean beckons. As John Donne observed four centuries ago, “No man is an island, entire of itself; every man is a piece of the continent, a part of the main.”

It may well be said that my thoughts are nothing but a dream. But we need to dream. Dreams are what take us forward. Unless we dream, we will not reach that new frontier.

*An edited version of a presentation made at the 74th Annual General Meeting of the Sri Lanka Federation of University Women

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Latest comments

  • 7
    3

    Good old or not so young Nihal Jayawickrema seems to have just woken up in sunny Hong Kong.Where was he when the1972 Constitution was been drafted? He was right in the middle of the action as the right hand man of Felix Reginald Dias Bandaranaike who singularly destroyed the prestigious Ceylon Civil. Service – without reforming it. – and created the servile Celon Administrative Service in 1964 ,the fore runner to the even more disastrous Sri Lanka Administrative Service in 1970. Both the COS and the SLFS were the handy work of his erstwhile buddy Felix..All those civil servants NJ mentions were from the CCS.In fact he was a beneficiary of Felix’s ruinous action when he was appointed a Permamanent Secretary on account of been one of Felix’s great catchers.Now how can he complain ?Yes, the luxury of life in Hong Kong may be giving him the license to indulge in some selective amnesia.

    Then NJ goes on to criticize the 1972 Constitution.He was one of its architects or at least he turned a blind eye as the politically appointed but very powerful and influential Secretary Ministry of Justice headed by that deadly and destructive Felix.Is Does NJ wish us to believe that all who were witness to that reign of terror especially in the 1970 – 1977 period have selective amnesia like him?

    • 2
      1

      Hush, don’t speak
      When you spit your venom keep it shut I hate it
      When you hiss and preach

      By Shahid Khan, a British DJ, songwriter, record producer and musician in his hit music Naughty Boy.

    • 4
      1

      Excellent points in this article and well said : Sri Lanka is a multicultural and multi-religious country and that should be said up front and center!

      • 5
        0

        I suppose the excellent points in the article is the result of the realisation by the writer of the errors that he himself earlier had been a party to.
        To that extent it’s contents are worthy of consideration when a constitutional revision is considered for the country. I think It is best if is sooner than later.

    • 4
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      The new constitution needs a special chapter on POLITICAL PARTIES and GOOD GOVERNANCE and INTERNAL DEMOCRACY.

      1. Party leaders and office bearers should have term limits of two terms and retire at 65 to give youth a chance to lead.

      2. All politicians need minimum qualifications of a Degree – now that Sri Lanka has universal education and universities.

      3. Full disclosure of assets.

      4. Women’s representation quota should be 30 percent in Parties.

    • 2
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      The new trend in Constitution making is to address the role and problem of Political Parties in democratic processes.

      It is recognized now as necessary to have a chapter on good governance in political parties because they play a central role in democratic process, are not held accountable.

      Political parties need to be held accountable to the people and there needs to be a chapter on good governance of political parties.

    • 0
      2

      Ne’s dirty shit should never have been allowed to splash on these columns. Who’s that sub-editor?

  • 6
    2

    Dr. Nihal Jayawickrama, You are an exceptional talent. I am privileged to experience your presence in my life. Thank you.

  • 5
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    A very enlightening, thought provoking and rare article that all college students should read and discuss if possible in class. It is not stuck in the past but urges to incorporate new ideas of governance towards a better future and character building. What is more it is written in that language, tone and clarity that was once a mark of a University education in “Ceylon”. Thank you.

  • 1
    2

    “The country belongs to all of Us. That is 21 Million of us.” says Mr Jayawaradana.

    How true..

    But does it?

    6.7 percent live below the Poverty Line That is 1.5 Million of us in round figures.

    Half the population are poor . That is 10 million.

    70 percent of the population are Sinhala Buddhist inhabitants living in rural sector, where the poorest come from.

    This 70 percent wouldn’t know English from Dutch when it comes to communication.

    I thought Mr Jayawardana who claims to be one of the tradesmen who built our constitution would have addressed these pressing issues, when he suggested the ideas for this new one, which Bodhi Sira and his mate Batalanda Ranil are going to build..

    But none of that in his new draft which is disappointing.

    Western nations which were built by their conquerors, drafted their constitutions to physically enrich themselves , their descendents and their friends and fellow ex countrymen and women who migrated later.

    Today they are doing fine.

    And they made sure that their religion stayed as the main Religion But no one talks about it.

    But this gentleman’s one of the first priorities seems to be getting rid of Buddhism, although he claims to be a Buddhist himself.

    I have no problem with that as long as the new constitution eliminates class and caste differences and lift the living standards of the great majority to be on par with the the Elite, Anglican and Vellala inhabitants.

    • 8
      1

      K.A Sumanasekera,

      “This 70 percent wouldn’t know English from Dutch when it comes to communication.”

      before 1948 they knew better and were at peace with their standard of living.
      Even today everyone in the UK/Canada/EU love to work for an English company because of the pay and perks.

      BTW social engineering of the English in the UK has failed miserably as in Hindia.
      Its now a question of nothing but the best or we got the robots.
      Its a crowded IS world that needs to be dealt with fast.

      “”Western nations which were built by their conquerors, drafted their constitutions to physically enrich themselves , their descendents and their friends and fellow ex countrymen and women who migrated later. “”

      Which west are you dreaming of? wild west? Or you master Old Blighty who has an uncatalogued constitution because that is the culture and the way it grew and continues. Belgium is the class case of joining of the best of 4 because of its ethnicity.
      Yours is Sinhala Buddhist only even in practice like a mulla which even dogs won’t buy.

      “And they made sure that their religion stayed as the main Religion But no one talks about it.”

      Yes the pews are empty but folk have confidence in themselves unlike sinhala buddhist.
      England today is culturally diversified like no other country and religion the emotion has no bearing even at a citizenship ceremony.Its the I_slam humanity camels creating the sound.

      “I have no problem with that as long as the new constitution eliminates class and caste differences and lift the living standards of the great majority to be on par with the the Elite, Anglican and Vellala inhabitants. “

      In your masters land UK there are very poor homeless men too. How do they rise the class ladder? even today there is provision for a pirate to be knighted(Henry Morgan)There are even Bengali who did not know nappy until they were 4 and have received OBE.
      the poor of uk try to obtain training in some skill and endeavour to become working class, while the working class attempts to enter university (one has to pay)and endeavour to become middle class.
      You got to work for it man and promote fairplay.

      there is always corruption but lanka has high pressure and can end up like nepal battle front- its all in Hindian plan to get the piece obstructing it from Naval supremacy.China cannot come close because the yankees and the yankee trained lankan forces wont let.

    • 3
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      KASmaalam K.A Sumanasekera

      “70 percent of the population are Sinhala Buddhist inhabitants living in rural sector, where the poorest come from.”

      And elect their own MPs and those MPs form the government. Isn’t it the reason why “6.7 percent live below the Poverty Line That is 1.5 Million of us in round figures.” while you and your mates enjoy imported Malt Whisky from English ruled Scotland?

      For the sake of this islanders, someone has to reinvigorate the old temperance movement. By the way one got to be careful, anything could happen to those protest against well anything. As happened in Tamilnadu day before yesterday, one Kovan was arrested under national security act for sedition. Kovan was forced marched in his kovanam (amude) to the police vehicle.

      Well here is the story:

      Tamil folk singer Kovan arrested for anti-Jayalalithaa song, slapped with sedition charge Kovan was picked up from his home at 2.30 am ‘forcefully’, says lawyer; songs criticised Jayalalithaa-led govt’s liquor policy.

      Written by Arun Janardhanan | Chennai | Updated: October 31, 2015 3:04 am

      What happened to S Kovan, a 45-year-old folk singer from Trichy, in the early hours of Friday has a lot in common with the plot of India’s entry to Oscars 2016, Court. The movie portrays the ordeal of a Dalit activist-poet, who challenges the establishment through his songs and is subsequently held responsible for the suicide of a sewage cleaner. In Kovan’s case, the Tamil Nadu police Friday slapped sedition charges on him for songs he penned against the J Jayalalithaa-led Tamil Nadu government and its liquor policy.

      Officials said the Cyber Crime Police picked up Kovan from his house in Woraiyur near Trichy at 2.30 am. Kovan heads the cultural wing of Makkal Kalai Ilakkiya Kazhagam or People’s Art and Literary Association, a 30-year-old movement working for the weaker sections of society. The cultural wing routinely performs folk songs and street plays on socio-economic issues.

      Kovan was reportedly arrested for the lyrics of two songs he had penned in the last few months, ‘Moodu Tasmac Moodu’

      and ‘Ooruku oru Sarayam’

      both songs are strong critiques of alcoholism and the state policy on liquor sale.

      A senior police officer confirmed Kovan was brought to Chennai early Friday morning. Kovan’s lawyer Gym Milton, who met his client Friday evening, said he has been charged under sections 124A (sedition), 153A (promoting enmity between different social groups and doing acts prejudicial to maintenance of harmony) and 505/1 (criminal intimidation, insult and annoyance) of the IPC. A senior officer who arrested him confirmed the charges.

      Kovan has been remanded in police custody for 15 days.

      His lawyer also alleged that the arrest was in violation of a citizen’s basic rights. “He was beaten up and pulled into the police vehicle forcefully. He was not given a reason for the dramatic arrest. Police refused to divulge information about his remand or exact charges with us, which amounts to denial of legal rights. It was only after the Madras High Court asked the public prosecutor to follow due procedure and ensure Kovan’s basic rights that I was allowed to meet him. Kovan said he was interrogated for over five hours over charges of instigating people against the government and the chief minister. They have also registered a case against the owner of vinavu.com — the website where his songs were uploaded,” claimed Milton.

      Police reportedly tried to arrest the website’s owner Kannaiyan Ramadas by conducting a search at his house in Thanjavur last night but he was not home, sources said.

      Chennai city police commissioner T K Rajendran confirmed Kovan’s arrest and said, “Investigation is going on.”

      The lyrics of Moodu Tasmac Moodu make an appeal to the ruling party to close liquor shops as alcoholism has spoiled the state. Ooruku oru Sarayam makes direct remarks about Jayalalithaa and her party. The lyrics state that the CM is rejoicing at ‘Poes’ — her residence is at Poes Garden — while people are dying due to liquor consumption. It also refers to the apparently contradictory situation in the state where one can get an idli for Rs 1 but is forced to spend lakhs on education. It also alleges that the main source of liquor shops in Tamil Nadu is Midas — a distillery company with alleged links to Jayalalithaa’s aide Sasikala — and that the closure of liquor shops would affect their future.

      The songs were originally uploaded on Tamil website vinavu.com before they went viral on YouTube and social media.
      http://indianexpress.com/

      KASmaalam K.A Sumanasekera

      Aren’t you going to help free your brethren Kovan from your Amma’s tyranny?

      Where is your brother Manisekeran from Tamilnadu?

      I think Hindia is becoming a totalitarian state, the best place for you to live and thrive. Please listen to Kovan’s songs on youtube, you will love it, it sounds like Sinhala folk song.

      PS

      You can still buy malt whisky in Amma’s Nadu.

      • 2
        0

        Native
        Hindia is now safe as the fascistic BJP and it’s Modi have hit the buffer in Bihar.
        Nitish is now poised to take over Hindia , and there is a light at the end of the tunnel for the people of SL too.

        • 2
          0

          Your association of Bihar is from your readings.
          The Babuvas have more bad logic than the sinhala buddhist or all indians put together.
          That is how they vote- they are corrupt to the core and can never be taken for `soul`. You can be rest assured that they would be like the saree FM closer to corrupt governments of Lanka because lanka is ravana land and belongs to them not tamils or sinhalese.
          If lanka evades Hindian instructions on the resolution then it would be a sort of nepal of today before Obama the school teacher leaves office.

      • 0
        0

        “I think Hindia is becoming a totalitarian state,”

        This is very true the way Modi is lining up with the American in its Greater Hindia endevour. Another term would be disaster as he is putting his hand in the till and now asking for all the gold which means he is out for the tonnes of temple gold to enrich Gujarati’s.
        Alternative is Graft Rahul and his looters. It needs a cultural revolution north /south for better prospects-

        $1 billion to Nepal and the whacking is going on once again after the Sonia closure for 2 years.
        Bhutan is escaping Hindia energy control without brushing it with Japanese technology for energy. less is more.

      • 0
        0

        Dear Native,

        You don’t even read the stats properly.

        From 15.5 in 2006 to 6.7 in 2013 is a 100 percent reduction ..

        It is remarkable considering that the 70 % of Government resources had to be diverted from 2006 to 2009 to liberate the nation from Tamil Terrorism.

        If you want to contribute something useful, please get us the figure to date, to show how your mate Batalanda Ranil has done with his now nearly 11 months of Yahapala rule.

        I know you and your fellow Vellalas of that vintage perved on JJ.

        And you seem to have crush on her even now.

        Is it because of sexy looks or just the Brahamin pigmentation?….

        • 0
          0

          “”It is remarkable considering that the 70 % of Government resources had to be diverted from 2006 to 2009 to liberate the nation from Tamil Terrorism.””

          All war are economic. its poor idiotic nations that go to war to become economic refugees in the west. So if you are the majority you are very very stupid to start the war because there are no minorities but communities.

        • 2
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          Kasmaalam K.A Sumanasekera

          “It is remarkable considering that the 70 % of Government resources had to be diverted from 2006 to 2009 to liberate the nation from Tamil Terrorism.”

          Hindians gave more than $1.2 billion to Sri Lankan in one form or another from 2005 to 2009 and after.

          Probably it has not gone into state book-keeping system.

          Could you find out as to what had happened to the hefty subsidy or the tidy sum?

  • 7
    3

    Dr.Nihal Jayawickrema,

    Thank you very much. I concur with everything you have said, with historical insights, awareness of results , admirable objectivity and great wisdom, I have been advocating a ‘ Constitutional Commission’ as the right path to constitution making and a non-political cabinet, for sometime now. I am glad you have highlighted these aspects. I hope what you have said invites informed public debate that forces the hands of our despicable politicians.

    Dr.Rajasingham Narendran

    • 5
      1

      everyone in the island is the same and can never be anything better than foolish buddha because it pays to be.

      power corrupts. has any sinhala buddhist president ever given up the presidency?
      they are foolish buddha vermin playing the game of the pirates. Or else why go to Oxford and what do they teach? Sajin gets degree like most VVIP’s.

      the future is robotics not a belching farting third world of bombs.

  • 2
    11

    In the end though all of this has to make economic sense. Within the union of China, HK people sustain themselves without much help from the mainland. Within the union of UK the Scots sustain themselves adequately.

    In Sri Lanka Tamil and Moslems are bankrolled by the majority Sinhala population. When the entire country shuts down for Deepawali for example its the Sinhala tax payer who pays for the privilege.

    The island wide Tamil language policy is also bankrolled by the majority Sinhala tax payer. Its the majority Sinhala who also pays for Tamil education.

    In the name of “cultural rights” Sri Lanka is already being extremely generous. How much more do you want the Sinhala people to sacrifice their wealth to bankroll minority cultures?

    • 9
      2

      I am 70 years old and I have not forgotten the fact those days my education was bankrolled by the blood, sweat and tears of the Tamil plantation workers, tea being the main income earner of the country.

      • 2
        7

        You are the donkey who poured hot water on ants isn’t it?

        It seems at your age you still have quite more maturing to do.

        • 9
          0

          ” You are the donkey who poured hot water on ants isn’t it? “

          surely, because like elephants ants have no museum or library

          Vibhushana is content like a cow,down under with sagging udders.

        • 3
          0

          Vibhushana the imbecile,

          You are not just an abhorrent racist but also devoid of total respect for older people! Racism is a disease that will ruin your existence. No matter how much you try to erase the true history you will not succeed!

          • 5
            0

            Burning Issue

            “No matter how much you try to erase the true history you will not succeed!”

            It is not Vibhushana’s fault. The voices he hears in head direct him to type whatever he types. His typing is not within his control.

            Please bear with him.

            Lately, he stopped hearing Sangam Poets (eg. Kaniyan Pungundranar) reciting in his head.

            It is a good sign.

    • 8
      1

      Vibhushana,

      Provide the statistics to prove that the Tamils and Muslims are not paying their share of the taxes and other levies. are’nt the tea and rubber plantation sectors not contributing meaningfully to the national coffers? What about the multiple pots holidays and the generous leave packages, that have a detrimental effect on our national productivity?

      I remember the pithy story of a Sri Lankan astronaut who went to the moon and when asked what he did there, replied, ” What could I have done, it is full moon everyday there”.

      Dr.RN

      • 2
        9

        DR, Rajasingham,

        Provide the statistics to prove that the Tamils and Muslims are not paying their share of the taxes and other levies.

        Well, Tamils would contribute 15% of the levies if taken as a proportion.

        So if we take language for example Tamil is implemented island wide i.e. 100% when the Tamil contribution is only 15%. So who pays the 35% deficit? Its the Sinhala tax payer isn’t it?

        I am quite versed on the problem. The moment ITAK copied DMK manifesto and tried to implement it here.

        In India the Tamil Nadu state does indeed have parity with other states. As a proportion to the real-estate they occupy they can raise taxes to pay for the privilege. Parity means kind of “equal partners”.

        Although that kind of parity is not possible in Ceylon simply because Tamils cannot afford it. Tamils cannot afford it because they can only pay 15% when 50% is needed for the privilege.

        • 5
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          Vibhushana,

          I have a rhetorical poser for you.

          Why dont you and those of you ilk, let us manage our affairs as we deem fit, with our own money? You will see the miracle we will bring forth. We may also very likely provide you aid?

          Anyway, your arguments in the above response is nonsensical! We are citizens who should be nothing but equal citizens, not minorities who live at your mercy and perverted logic.

          Dr.RN

          • 1
            7

            Dr. RN,

            Im trying to convey this to you as kindly as possible.

            let us manage our affairs as we deem fit, with our own money? You will see the miracle we will bring forth.

            I don’t know if you haven’t noticed. Hungry Tamils are stealing fish from Sri Lanka on a daily basis. Have you tried the miracle there first?

            We are citizens who should be nothing but equal citizens, not minorities who live at your mercy and perverted logic.

            Although admittedly the Sinhala people ARE paying for Tamil education, language and etc already anyway.

            Why not just refuse it and just stay hungry and illiterate like the fish thieves? Even though your ego says one thing the stomach cannot afford to stay hungry is’t it?

            • 3
              0

              Vibhushana

              This is one of the reasons why Tamils are asking for a separate state for the Tamil areas of the country. We do not want to live on Sinhala tax payers money. There is a common saying that the Sinhalese are lazy but the Tamils are hard working. It will not take a decade or two for us (Tamil state) to become another Singapore in South Asia. It is the Sinhalese who are keeping us with them (not letting us separate) and then crying at the same time that they are spending for us.

    • 0
      0

      Don’t forget the Tamil,Muslim,and Christian Tamil and Sinhalse tax payer also bank roll the Sinhala Buddhist monthly every Poya full moon day likewise, and that all balances out for the Sinhalese to bankroll every one including their Presidents ,PM,s and politicians to take holidays in New York and with members of their families and boot lickers.

  • 1
    2

    To respond to one comment made by “Ne” above, I left Hong Kong 17 years ago, in 1997.

    • 3
      0

      Nihal Jayawickrama,

      “”It also contained certain safeguards for the minority communities. “”

      (chocolate) The king of the Belgian Lion country of 3 conquering ethnics – (1st industrialized nation of Europe and university) does not refer to his subjects as `minorities` because there is a `spirit of reasonableness`unlike the animal we come from.

      1831 The Constitution established Belgium as a centralized unitary state. However, since 1970, through successive state reforms, Belgium has gradually evolved into a federal state.

      Its a very good platform to use than the Buccaneering English. The local features can be plugged in because it is reasonable therefore folk don’t go to war killing each other like the bestiality beast in thrice blessed from 70’s of southerners.

  • 3
    2

    Nihal Jayawickrema’s piece above is a fine exercise in liberal democratic ideology. Hats off to Nihal for his forthright article coming from a liberal and talented Sinhala Buddhist

  • 1
    7

    ‘It is time we recognized that in this multi-ethnic, multi-lingual and multi-religious secular country, everyone has the right to freedom of thought, conscience and religion. If Buddhism was able to survive in the hearts and minds of the people through 450 years of western colonial rule, the intervention of the state is surely not necessary to keep it alive in the free, sovereign and independent Sri Lanka’

    To take the second point first, it would not have survived if not for the actions of Anagarika Dharmapala, Henry Olcott and many other westerners. Surely you know that at one time not even five senior monks could not be found to ordain a new novice.

    The first point about everyone having the ‘right to freedom of thought and so on is fine but do they have this freedom? Last year Christian evangelists were distributing the bible outside a Hindu school. Teenagers are vulnerable targets as are the poor, the sick, and school children. What freedom of thought for them?

    When they are planting churches in every Hindu and Buddhist village how can the villagers counter the western financed evengelists? Eventually the converts become evangelists themselves and like a virus the brainwashing spreads.

    I would like to know what the attitude and actions of lay Catholics and the RC church would be if Japan started planting temples in Filipino villages. Freedom of thought or not, do you think it would be allowed?

    • 5
      1

      Taraki

      “To take the second point first, it would not have survived if not for the actions of Anagarika Dharmapala, Henry Olcott and many other westerners. Surely you know that at one time not even five senior monks could not be found to ordain a new novice.”

      Anagarika Dharmapala (the homeless one) was the one who took active role in perverting Buddhism into Sinhala/Buddhism. What he and Henry Olcott together founded was protestant Buddhism, a model exactly copied from Protestant Christianity. Then the problem grew into Sinhala/Buddhism.

      “Teenagers are vulnerable targets as are the poor, the sick, and school children. “

      Then what were the parents, teachers and the so-called respective religious leaders doing in the firat place? They were supposed to care for the poor and the sick. When they failed in their social responsibilities and neglected the poor, sick and the teenagers then there are others who would readily fill the vacuum. Please blame those who haven’t done their part.

      “When they are planting churches in every Hindu and Buddhist village how can the villagers counter the western financed evengelists?”

      When political leaders switch their from Buddhism to Christianity they justified it, when they converted to Sinhala/Buddhism their act was seen as patriotism. Well wouldn’t you say it was patriotic opportunism?

      In the 60 years, or so politics has replaced religion. Political crooks switched parties when they are motivated by carrot or in some recent cases sticks. If one tolerates the politicians, one is expected to tolerate religious conversion.

      Or is it survival of the fittest, adapt and change?

      If this is too complicated just forget it.

    • 5
      0

      Taraki,

      When there is vacuum air will rush in. There is a huge vacuum in both Buddhist and Hindu social formations. We do not empathize and sympathize with our suffering poor. We are not charitable. We feed already fat monks. We break coconuts and pour milk over statues of stone. We try to appease our God/s with bribes He/she/ they did not ask. Look after your poor and needy and you will be looking after God’s children- ‘ Harijans’ as Mahatma Gandhi called them,

      You need not then shed crocodile tears over conversions or fear the evangelical churches’

      Dr. RN

  • 3
    0

    As usual a timely and very useful contribution by Dr Nihal Jayawickrema. Problem is some of the key players in this exercise like Hon. Karu Jayasuriya are too old to read these valuable contributions.
    Authorities must organise a series of workshops on this matter and provide a broad opportunities for sharing of ideas.
    That third grade Professor should not be allowed to get involved in this exercise. Let him continue his job as mentor/ nanny for Medamulana boys.

  • 2
    4

    A constitution based with man-made laws will fail no matter how many time they are amended. Insanity is described as doing the same thing over and over again and expecting different results. The major problems in the world are the result of the difference between the way people vote and how Politicians act on their behalf. People’s Power is an illusion in the secular world. The real power is vested with the Multinational corporations that control the lives of the 99% of the world’s population. Profit over Poverty.

    “Democracy is a device that ensures we shall be governed no better than we deserve.” — George Bernard Shaw (1856-1950) Irish Author, Playwright and Essayist

    • 2
      0

      democracy is not for Islam.
      why do Islamist have to take refuge in infidel nation and look for infidel freedom to practice I-slam humanity and breed like vermin?? Just about a million crossover to democratic world than sharia law world refusing to accept- economic mice!!

      you know nothing about constitution types of the western world.
      you are still socially backward polygamist aren’t you??

      George Bernard Shaw- also said `woman is gods second mistake` so you Islamist hug the gay man when it suits you?? like the way you hug onto Jewish Albert E.

  • 0
    0

    “They were men of knowledge, experience and integrity. The standards they and their predecessors set and observed are now distant memories.”

    Please leave Baku Mahadeva out of this category. He failed the Tamils!
    I have it on first hand information from a person (my own folks) who sat at the UGC meeting that B. Mahadeva was not correct, in fact was very wrong, on the STANDARDIZATION issue that led to so much woe to the Tamil children of that generation and the ones after that, and led the irreversible division of this nation at least in the minds of those who bore the brunt of it. When an objection was raised at that meeting Mahadeva of all persons argued that two communities having the same education cannot differ in their AL results. (Everyone thought how clever he was for that was what they wanted to hear with that year’s AL results and those prior to that.) When in fact it had, due to many reasons well known about the Tamil case- very good schools, the then students giving their all to education, great tutories with legendary tutors starting at the crack of dawn etc. These factors were not taken into account though any statistical study would take all the variables into account. A hasty/biased conclusion without proper study. The results in the Eng results of 1971 had a skewed proportion of Tamils.This led to the story that Tamils were over marked which was later found to be the opposite. Tamil students were marked much harder knowing the common Tamil Teacher’s mentality.MAny academics even recently had been falsely charged with over marking a Tamil student. It was how they attempted clean the universities of the remaining Tamil academics.
    Because this man who failed to take a gentleman’s stand on the issue is Sir Arunachalam’s someone Tamil people hold him in high respect. (Arunachalam was not honest either as is known though he was knighted). The Sinhalese liked Mahadeva because he did not assert Tamil Rights.He was so alienated from the people he was representing at the UGC. He was not a great man but what many Tamils call them “A stooge” for the government.

    There were 3 copies of the conclusions of the standardization meetings. One of them was with Prof. Abeywickrema. These disappeared and are not available for study. If you and your colleagues you call “.. men of knowledge, experience and integrity. The standards they and their predecessors set and observed…” please make the original report of the standardization meeting that Prof. Abeywickrema had available to the nation and any new constitution drafters.

    My friends boasted during 1983 that “Lord Budhdha alone said that ‘thou shalt not lie”. I hope we will make many wrongs right on both sides while some of you people are still left. If you are one of those men you claim to be in this article, please find this document make copies and make it available so the wrongs of history which drenched the Vanni red, can be known. It is also academic honesty to do that, not suppress reports.Then the Profs will call you a gentleman
    “.. of knowledge, experience and integrity. The standards (he) sets and observes etc.

  • 0
    0

    In early 1971,S.Nadesan Q.C.published a commentary under the Title-Some comments on the Constituent Assembly and THE Draft Basic Resolutions.
    I am quoting below what this Great Constitutional Lawyer had written in that commentary…….

    Whatever may be the Constitution of a country,it has to be recognised as a fundamental extra-legal fact that the people always retain the right of revolution-the right to overthrow the Constitution by force or by peaceful means and make a new Constitution.In the situation in which we are placed of a minority of the electorate having a majority in the Constituent Assembly,if all the members participating in the Constituent Assembly participate as representatives of the people generally,untrammelled by party affiliations,and are prepared to compromise,and in a spirit of give and take to solve the countrys problems,there is some moral justification for stating that the people are exercising their right of revolution peacefully through a Constituent Assembly…..

  • 1
    0

    Academic,

    I must confess that I am not aware of the report you refer to, nor Mr Baku Mahadeva’s role in its preparation. However, I am quite conscious of the problem that the standardization policy created. In a presentation I made in 1984 on “Human Rights and the Ethnic Problem” (later published in The Lanka Guardian), I made the following comment:

    “The effect of this policy, and the enormity of the injustice it caused to the Tamil community, raises this issue to the level of a major human rights problem. For instance, in 1975, the admissions on a district basis to the medical faculty were 29 from Galle and 29 from Jaffna, whereas on the basis of merit only 18 had qualified from Galle as against 61 from Jaffna. Similarly, on a district basis, Galle and Jaffna each secured 20 places in the science and engineering faculties, while on the basis of merit, 24 should have entered from Galle and 56 from Jaffna. It will be interesting to know how many of these students from Jaffna who in that year were shut out of universities unjustly, and denied the right to education and employment, and diverted out of the mainstream of life in the country, today belongs to that category which our political leadership so perfunctorily describes as “murderers, rapists and kidnappers”.

    In 1985, in a presentation I made on “Non-Discrimination and Self-Determination” (also published in the Lanka Guardian), I noted that:

    “For instance, in the academic year 1983/84, 530 students from schools in Colombo, Jaffna, Galle, Matara and Kandy, who had qualified, on their raw marks, for admission to the faculties of medicine, science and engineering, were excluded from the universities of Sri Lanka in order to accommodate 519 other students from so-called “under-privileged districts” who had obtained lesser marks. Of these 530 excluded students, 198 were from Jaffna and 224 from Colombo. If we assume that approximately one-third of those excluded from Colombo were also Tamils, the total number of excluded Tamil students would be 272 or 61.6 per cent, a result which leads irresistibly to the conclusion that in the matter of university admissions, the principle of non-discrimination had been violated. On the other hand, if while giving effect to the under-privileged district quota system, it had been possible, by increasing the intake into the universities, to accommodate these 530 students as well, Sri Lanka would probably have been acting in accordance with international norms and standards and, what is more important, healing a festering sore in our multi-ethnic society.”

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