30 September, 2020

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A Long View Of Constitution Making

By Kumar David

Prof. Kumar David

Prof. Kumar David

Hard determinists say that leaders of the day cannot shape history; they, like the rest of us, are adrift on a sea of titanic waves. This is going too far; to a degree men do make their destiny, though not under conditions of their choosing but under “circumstances existing and transmitted from the past which hang like a nightmare on the brains of the living”. Tamil extremists say that RW and MS are no different from Sinhala racists and deep-down do not wish to concede anything to Tamils. This is not true; a rancid cancer eats the soul of racists but it is false to metastasise this to RW/MS. However, neither do I go along with butter-won’t-melt-in-their-mouth liberals who fail to recognise that RW/MS and their ilk are afraid; afraid of a chauvinist backlash and lack the political equipment and confidence in the ability of the people to confront and defeat proto-fascist racism. Mobilisation is the last word in their lexicon.

If national leaders lack the guts to tell racism ‘Four-letter off, or suffer a broken nose’, they will repeatedly retreat in the face of the bigots. Let’s begin with four items that I fear will be built into the new constitution. Secularism will be spurned and Buddhism will facto endure as state religion; the state will continue to be defined as “unitary”; Sinhala-Only with “reasonable squealing” in Tamil will remain the formal norm; devolution will be evaded and federalism eschewed, but to give the devil its due as much regional administrative space as can be smuggled in without wetting pants/national dress will be inserted. There will be needless constraints on the space for the North and East to administer themselves, not because the government is racist, but because it funks racists. This, lovely ladies and kind gentlemen, is the plain unvarnished truth. Now, am I too harsh or are they wisely pragmatic; you decide.

Ministerial cowardice and Cabinet confusion are manifest in a report in the Island of 16 January; “Cabinet spokesman Dr. Rajitha Senaratne reiterated that the process will be a domestic process and not a hybrid process as proposed by the UN High Commissioner for Human Rights”. The PM on the other hand steadfastly assures the world that Lanka will live up to the undertakings it gave in Geneva.

If a majority of the vast majority, meaning most Sinhalese who make up 75% of the population, are moved to spill blood than countenance change in the four die-hard constitutional blots referred to in the previous paragraph, then they won’t be changed. QED! Try making Saudi Arabia or Israel secular and riots and disorder will engulf the land. Tweak the antediluvian monarchy in Thailand and be eviscerated while the populace cheers. So don’t waste time with the undoable; politics as we are so often told is the art of the possible. Though Obama is the most intellectual US president since Woodrow Wilson and the most inspiring orator since Lincoln, his presidency has achieved little. It ran aground on an immovable rock, an elected Congress. The Obama presidency could NOT have achieved much more than it did.

The debate I am provoking is about the judgement of what is possible and what impossible. I believe that the Saudi, Israeli and Thai examples are wrong analogies for what is possible in Lanka now. Examples that did transform nations are more to the point at this juncture. The suffragettes won votes for women, the Civil Rights Movement abolished voting impediments on blacks, apartheid went to hell, and Burma is winding-up military dictatorship. Things changed when conditions matured and leaders made the right calls at the right moment as did Emily Pankhurst, Martin Luther King, Mandela and Suu Kiy. A timely Suu Kyi comment is; “It is not power that corrupts but fear. Fear of losing power corrupts those who wield it and fear of the scourge of power corrupts those who are subject to it”. And change does not come free: “If you want to make enemies, try to change something” – Woodrow Wilson.

My bottom line, which I have often echoed in this column after the 8 January defeat of the Mafia presidency, is that a watershed HAS been crossed and the terrain IS more favourable to defeat racism. The balance of forces on the streets and in the chambers at this moment is such that chauvinism CAN be defeated. Mahinda-Gota, by fair means or foul, finished off secessionist Tamil nationalism. Conditions and the balance of forces for finishing off Sinhala extremist racism are now favourable. Let’s do it! Sinha-Le can and must be smashed NOW; delay is a dagger not only at RW/MS’s throat but at ours as well.

What Lanka today to go all the way with this task is leadership; leadership which shy RW and confused MS are reluctant to offer and the JVP, unable to untangle itself from its racist past, cannot rise to. If all these actors fail to rise to the challenge it will be chaos. Defeating chauvinism is not for the purpose of giving concessions to the Tamils in the north; no the primary purpose is to prevent a fascist monster rising from the ashes of the old regime in the south. I have flogged this theme repeatedly, first demanding boldness in prosecuting criminals of the old regime and the extended ‘first family’, and now in this essay saying that unless chauvinism is pulverised the new constitution will be still-born. That’s enough for one day; let me change track.

Writing and documentation

Constitution making, in the final analysis, is about writing a document. That’s the thread that got me into exploring the origins of writing. The earliest scripts, cuneiform (conical or triangular) markings on clay were used to keep accounts and first used in Mesopotamia in 3200 BC. Beer was the most popular beverage – fermentation of cereals to make beer preceded the fermentation of fruit to make wine – and the earliest extant records are for its sale. Only pictographs or signs, not alphabets were known and were used to track the number of jars.

KDThis first Sumerian cuneiform evolved in many directions in the Fertile-Crescent including south Anatolia, and then Persia. It took another thousand years for the first alphabet, the Phoenician, to emerge. It is the grandfather of the Hebrew, Persian, Greek and Latin (hence all European) and Central European alphabets. The Brahmi script, source of all Indian alphabets (Sanskrit, Tamil and dozens of descendants) is dated to 800 BC but there is much disputation whether it grew from a Sumerian-derived script or is of indigenous origin. Chinese character writing (logograms), born independently, can be traced to the Shang Dynasty (1200-1050 BC), while Mesoamerican glyphs track back to 300 AD Central America. Language of course is one hundred-thousand-plus years older than writing; homo-sapiens, even males, spoke eons before they wrote.

The earliest written laws, call them constitutions, originate with the Code of Hammurabi dated to 1750 BC – the old Babylonian period. It may have been influenced by the code of Ur-Nammu (circa 2100 BC) only two fragments of which have been found. The Hammurabi Code influenced later laws such as the Laws of Moses (Torah) of Old Testament fame which has to be after 1279 BC since the ‘wicked’ Pharaoh of the Exodus is 19-th Dynasty Rameses II who reigned from 1279-1213 BC.

Fast forward to our part of the world and jump over the most developed system of ancient law, Roman law, to arrive in India and the Laws of Manu (Manusmrti) starting circa 300 to 200 BC. Lanka’s govigama/vellala patriciate is put in class 3b and 4b by Manu – see illustration. Aw goddam it! The Laws are in Sanskrit and the extant text is the work of many authors extending from the 2-nd Century BC to the 2-nd Century AD. The Asokan edicts (39 inscriptions), contemporaneous with the earlier dates ascribed to the Manu codes, were influenced by Buddhism and served alongside the Buddha’s teachings in the great proselytization campaigns the Emperor (reign 269 to 232 BC) dispatched all over Asia. (Manu, by the way, is not a chap, but a sort of divine progenitor of all humanity in the Hindu pantheon).

For today, I will skip the Magna Carta and the 1215 deal at Runnymede, England and Britain sans written constitution but with a paramount Parliament, common law, edifices derived from Roman law, the widely varying First to Fifth French Republican Constitutions, Code Napoleon and the all-important American and Indian Constitutions. Rohan Edirisinghe has often reminded me of the importance of the South African Constitution for a country facing excruciating trauma like Lanka; but our drafters, their heads buried deep in savage contemporary snarl-ups, can spare little time to take a long view of history. So I too will desert constitution making and talk about the origins of literature for the rest of this essay.

The beginnings of literature

The earliest written fable is the Tale of the Shipwrecked Sailor (circa 3000 BC; Egypt, Middle Kingdom). The oldest extent epic, The Epic of Gilgamesh, was composed circa 2150 BC. The former is a Thousand and One Nights type adventure of wondrous lands and creatures, the latter tells of the quest of the great king Gilgmesh of Ur (Mesopotamia) for the meaning of life. The earliest known-by-name writer is the poetess Enheduann (2285-2250 BC), daughter of Sargon of Akkad, who signed and sealed her poems. (Akkad was a powerful empire of the middle Mesopotamian period).

The next great milestone, the hymns of Zarathustra and the Rig Veda, were composed about a millennium later (1200-900 BC) as oral narrative poems and written even later. After that, Homer’s Iliad and Odyssey and the contemporaneous Ramayana and Mahabharata, too were composed by many folk balladeers and sung by many mistrals. These epics could be written down only after a script (Old Avestan in north-east Persia and Bactria, Greek and Sanskrit) emerged in the middle of the first millennium BC. (The Culavamsa and Mahavamsa were composed in Pali in the middle of the first millennium AD).

No I am not rambling all over the place; there is a point to my meandering. We squat in Lanka in a corner of the world ignorant of how far back the story goes and how vast the world is. That men do not learn much from history is the saddest lesson history teaches. But suppose we could take a longer, bigger, view would we care so much what people in other corners of this little Isle speak, worship (or not worship) or how they arrange their affairs? Narrowness of mind and xenophobia of nations are born of ignorance of history and unawareness of how big and broad the human story is. Isaac Newton has this obiter dictum, apocryphal or not I do not know, attributed to him: “I do not know how I may appear to the world, but I see myself like a boy playing on the sea-shore, now and then finding a smoother pebble or a prettier shell, whilst the great ocean of truth lay undiscovered before me”. With a forgivable tilt in meaning it nicely fits what I am trying to get across.

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Latest comments

  • 2
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    Oh, David, youhave done it again! Thanks for this ‘hotch potch’ version of superficial history. This is what happens when ‘displaying’ knowledge overtakes the job at hand.

    Time to reference Wikipedia. I found all that stuff there, with all the names you have dropped.

    How childish can one be when they do not understand that !A silk purse cannot be made out of a sow’s ear”?

  • 3
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    Plain,unvarnished truth, no doubt. It is highly unlikely that the current leadership in government will have the courage to enact a constitution that will do away with Buddhist hegemony and boldly install equality of status to all citizens in the country irrespective of their ethnicity or religion. The chances are that chauvinism will triumph and the country will go down the pallang!The current vacillation of the leadership is a sure indicator to this trend!
    Sengodan. M

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    There will be needless constraints on the space for the North and East to administer themselves, not because the government is racist, but because it funks racists.

    Does these Tamil donkeys ever listen? The northern province has historically produced (even before SJV) around 3% of the GDP. The East producers double of that figure.

    That is woefully inadequate to maintain their own services. The NCP for instance with a similar size and population produces 10% of the total GDP.

    Thus, it would seem around 70% of the revenue to manage the province is sourced externally – mainly Sihala tax payments.

    So the reason why you cannot “do your own things” is because you cannot afford to do so. The money will be allocated and projects will need authorisation.

    This is particularly in view the Northern Province keeps using Sinhala tax money to defend LTTE terrorists and build LTTE monuments.

    However, the NP may merge with the Eastern province to build a large more self-sustaining unit.

    However, you cannot force yourself in waving a Tamil flag because 60% of the population of the East do not identify themselves as Tamil. In order to form an alliance over NE, you need to be multi-ethnic representative.

    Lets say you jettisoned Tamil-only and adopted Tamil-Moslem-Only posture. Then the Moslems will take control over the merged province because they produce larger percent of the GDP.

    Far worse, even if a Tamil takes leadership of NE, that Tamil will be from the East. I would imagine it will be someone like Palliyan. So Wingeswaran will become Palliyan’s tea boy.

    The reason the President said it was a mistake that pacts with Chelva was abrogated is because it would have been cheaper to let it fail at his hand rather than at the hand of Velupillai.

    • 2
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      Vibushana,

      Vibushana is a team of bigots endeavouring to inculcate complete falsehood and bash the Tamils at every opportunity.

      It is well documented that since 1948 the north was deprived of development and injection of economic activities. The LLRC submissions from the retired civil serpents conform this fact! So imbecile tell me what would be the effect if a province is economically staved?

      Take Liverpool in the uk for example; during the 70s and 80s she had had enormous social and chronic unemployment issues resulting in riots and turmoils. It was because she was neglected economically. See today; she has been voted the cultural capital of Europe! So imbecile you need to grow up be a man devoid of bigotry.

      The Tamils can and will be successful in managing their devolved power and you know this too!

    • 1
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      Vibushana you [Edited out] don’t you realise that Rajapakses sold the Sinhalese to China to defeat 2 million Tamils?

      You [Edited out] don’t you realise that generation after generation of Sinhala kids will be chained to Chinese as labourers. For failing to meet Tamil aspiration?

  • 3
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    Well said Prof Kumar! ‘Unless chauvinism is pulverized the new constitution will be still-born’
    Yes, “It is not power that corrupts but fear. Fear of losing power corrupts those who wield it and fear of the scourge of power corrupts those who are subject to it” Suu Kyi. And change does not come free: “If you want to make enemies, try to change something” – Woodrow Wilson.
    Sri Lanka govt should seek the support from UN in constitutional reform/making in Sri Lanka as UN had already assisted many countries in the world like Cambodia, East Ti more, Sudan Somalia, East Timor, Afganistan etc. it has lot of experiences at least the processes of the reform/making rather the substance if they are reluctant to discuss with UN.
    Sri Lankan Constitution has already many good number of issues (though some bad ones).
    • It is already there that internal security should be separated from the external defense,
    • Language usage in the courts in the north and east shall be Tamil, Article 126 (4) give enough protection for the fundamental rights etc.
    • There was a law already in 1978 against the invasion of Indian fishermen and the punishment for it but the SL govt arrest them based on the Illegal immigration/invasion!
    Why they are not implemented is my major question like many of us think. Why internal security has not yet been handed over to the provincial bodies is one question, but why Tamil became secondary in the courts in the north is another question that we have to ask ourselves! Have the lawyers in the North (do not know about the East) taken an oath until Brahmin recites his religious worship not in Sanskrit but in Tamil, ‘we will not use Tamil’ in the courts? Sorry if I have misunderstood something here.
    The next thing, since Northern Provincial Council (NPC) was established how many number of statutes they managed to make? Is also another question. Just 3 or 4!
    Here is the para to show the power of the statute “A statute is a formal written enactment of a legislative authority that governs a state, city or country. Typically, statutes command or prohibit something, or declare policy. Statutes are laws made by legislative bodies and distinguished from case law which is decided by courts, and regulations issued by government agencies. Statutes are sometimes referred to as legislation. As a source of law, statutes are considered primary authority. Ideally all statutes must be in harmony with constitutional law.”
    This is one way to get more power at the provincial level. Statutes are more or less equal to law! Does the NPC have lack of human resource to understand/make these/lack of will power and lack of unity? If it is the former we need some diaspora Tamils who are capable to facilitate these process at the NPC and make the NPC like one of the autonomous cantons in Switzerland. If it is the latter, all those who are in the body should be brainwashed to work for the common good of many.
    Yes, Change does not come free! Has war also impinged on our ideas of thinking, human resource, will power, and unity for good among us! What prevent those who as activists in the parties, bodies and organizations to work for the common good of all?
    Those who actively work now with constitution making as a step towards the ethnic conflict in Sri Lanka should require the Govt of Sri Lanka to set up Independent Commission for Constitutional Review and Implementation Process in addition to reforms. There should be offices in the North, East and central and south to give civic education, public advocacy, listening to people, and also bring back to show them what had been finalized with reg to the Constitution.

    • 2
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      Bravo! Three cheers, for an illuminative and perceptive comment . I hope we can yet learn and act intelligently.

      Dr.RN

  • 3
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    As a professional historian with training in that field (for what it is worth), I suggest to the reader the version of history presented here is not ‘agreed’ by any means. It is beyond tha pale to that extent.

    Though all history involves telling ‘stories’ to a certain extent, professionals are taught to be circumspect in presenting such history (as that of writing, religion etc) due to the time gap between those events and today and all evicdence being circumstantial.

    Prof David’s time sccale on many of these takes this poor mind by surprise (and disgust), but choose to let the matter lie.

    It is a reminder that little knowledge is , if not dangerous, certainly annoying!

    • 1
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      Brave Professional Historian prefers to remain anonymous; were he to reveal himself one could judge his record as a historian.

      He points to no error of fact or date; he simply just does no like the broad and general sweep. Why not let the reader judge whether it is persuasive of the conclusion at which it is aimed, instead of ad hominem sneering?

      Medieval journeymen jealously guarded the tools and merchandise of their guilds. It also reminds me of scientists (and engineers) who assert proprietorial rights over the laws of physics, evolution by natural selection, and god forbid, even the history of science!

      “A little knowledge is a dangerous thing” is the refrain of the motor mechanic and bass-uneha.

  • 2
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    Prof Kumar,
    On Feb 4th 1985, at about 10:00pm at the Mount Lavinia Park, I asked Lalith Athulathmudali why not solve the political problem with a Federal Constitution when UNP has 2/3rd majority. He said that it will be political suicide.

    On May 13th 1997 at about 7:00pm at his office I asked Ranil Wickremasinghe, in the presence of Tyrone Fernando (now no more) and Mahainda Samarasighe (who got me the appoointment), will he support Federalism as a solution. He said UNP will not do anything that would prevent them from coming back to power. He added that no party in power will do anything that would put them out of power. An obvious reference to President Chandrika (Who is now in charge of Reconciliation!!!) and her party.

  • 1
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    Prof Kum has the habit of writing long articles on wide ranging subjects. Why doesn’t he use his brains to solve the problems of the common man? What Kum should highlight is not about the past government being racist or the present government funking racists but the entire state be it the legislature, the executive and the judiciary are failing miserably. That way countries like Bhutan are racing ahead of Sri Lanka using technology to meet the difficulties of terrain and Kum basically being a prof of technology should use his knowledge to uplift Sri Lanka. Bhutanese did not talk of Brahmins, the Kshatriya etc ( I believe that is stronger there than here) but in their evolution they have started by talking of Gross National Happiness, a parameter that no entity ever thought of.

    Politicians are politicians whether Sri Lanka or outside. They fear being thrown out by the electorate (really loosing power). Sadly in Sri Lanka they promise the moon, internationally and then let it backfire. But all that is irrelevant when there is every sign that anarchy is gradually setting in because the state is failing and Profs like Kum [Edited out]

  • 0
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    [Edited out]

  • 1
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    The question of UNP -TNA proposed Neo-Liberal Bourgeoisie class and their “Republic Constitution” which said by Kumar David has so muddled key issues and really stand as Tamil Eealm of separatism , political term of Vested interest of US hegemony.

    In deed we are not mock at common sense and history of Bourgeoisie Constitution ,it is obvious we cannot talk of full pledge democracy as long as Tamil separatism exist in and out side of Sri lanka.

    We are now raise question and can only speak which that sovereignty base democracy.
    Well in fact ‘constitutional democracy’ of UNP and TNA led phrase revealing a lack of understanding both the national democracy struggle and nature of current state in Republic.

    Although TNA and UNP democracy is mendacious phrase of a Neo-liberals who want to fool the majority masses.

    History knows Sri lanka that democracy which the place of Colonialism of British occupation and other west nation after 425 years had been colonial rule which an occupy Island by last imperialist power of Anglo-Saxon .

    Tamil separatism encourage and promoted by Kumar David of Trotskyism acceptable Eealm for Tamil nation; and play counter-revolutionary role of capitalism in general and discards passes over in silence glosses all that in Hegemonic of US and Indian, which is unacceptable to the majority democracies people of all Sri Lankan.

    It is truth which most essential part of proposed “constitution Assembly” propaganda of Kumar David has failed to realized fundamental issue is partition of Sri Lanka.

    What David offer power devolution for Tamil bourgeoisies instead of scientific analysis of those conditions which make every Neo-Liberal democracy ,a democracy for the US and Indian big bourgeoisie.

    That is why Kumar David by virtue of objective position of unitary nature of State -Our Republic and irrespective of what his conviction of Trotskyist ideology may be inevitably proves to be lackey of US and Indian big bourgeoisie.

    In fact let us remind and most learned Dr Kumar David the theoretical propositions of scientific socialism which that pedant has so disgracefully totally forgotten to please US and Indian big bourgeoisie and attempted then explain the matter as popularly as possible.

    • 1
      0

      D.Nimal

      “The question of UNP -TNA proposed Neo-Liberal Bourgeoisie class and their “Republic Constitution” which said by Kumar David has so muddled key issues and really stand as Tamil Eealm of separatism , political term of Vested interest of US hegemony.”

      Cut the crap of sloganeering and get to the bottom of the real issues which are more important than your Marxist mumbo jumbo.

      I don’t think constitutional experts are interested in your

  • 0
    0

    Ha Ha D.Nimal you are back.You must be an original thinker; I could not make head or tail of what you are trying to say.The Pyramid that is depicted here should not be confused with the Pyramid scam of the former Governor of the Central Bank-Ajit Nivard Cabral!

  • 0
    0

    n.ethir.

    For a Federal Constitution there has to be a High Jump.

    For 13+ it has to be a Long Jump.
    Either way,the framers of the Constitution need to clear the Hurdles.

    For the TNA of-course it will be the Pole-Vault.

    Are we all getting back to square one?

  • 1
    0

    Apartheid regime in South Africa was the result of a series of unilateral decisions by the white supremacists only, ignoring the equality, dignity and justice of blacks and others. It was undemocratic and bad governance.

    Likewise, unilateral decisions by Sinhala supremacists in SL, sowed the seeds for bad governance that caused the war, war crimes and Tamil genocide during the past 60 years.

    The major unilateral decisions by the Sinhalese, that destroyed peace, stability and development in SL were;

    a) Sinhala only act of 1956.
    b) Cancelling Banda- Chelva and Dudley-Chelva Pacts.
    c) Military occupation of Tamil homeland since 1965.
    d) Drafting the first Republican constitution for SL.
    e) Refusing to implement 13A of the constitution of SL for the past 25 years; agreed under Indo-Lanka Accord.

    Also, last week, the president of SL, in an interview with BBC, chose again to unilaterally violate a section of the resolution that was co-sponsored by SL at the UNHRC.

    Therefore, unilateral decision by the state on inter ethnic or inter religious issues should be prohibited in the new constitution. And such issues should be resollved by an impartial Reconciliation Council and not politicians.

  • 0
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    I am afraid Mr David is too pessimistic. Devolution to the North-East is essential to keep Sri Lanka united. The solution he espouses will simply result in the endless majoritarian politics of the past seven decades. It is time to put a stop to it and have a political solution that will last. The alternative will be a division of the country, by UN sponsored referendum. Sinhala and Tamil leaders need to recognise the sovereignty of all the nations on the island, not just the Sinhalese.

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