By Laksiri Fernando –
Dr. Laksiri Fernando
In seeking public opinions for a New Constitution, the Public Representations Committee (PRC) led by senor lawyer and social activist, Lal Wijenayake, has asked what form that a chapter on ‘directive principles of State policy’ should take. There is such a chapter in the present constitution, and there was one in the previous 1972 constitution. However, both constitutions said ‘these are not justiciable,’ to mean legal proceedings could not be initiated, making them effectively inoperative.
The related questions asked or topics given by the PRC are ‘fundamental rights and duties’ and ‘individual rights and group rights.’ Considering that the proposed New Constitution should be ‘progressive, futurist, innovative and people centred,’ it is the opinion of the present author that instead of merely emulating a chapter on ‘directive principles,’ there could be a more effective chapter on ‘Fundamental Duties of the State, Political Parties and Citizens.’ This is in addition to a chapter on ‘fundamental human rights and freedoms.’
This chapter could be ‘justiciable’ in the sense that ‘public interest litigation’ could be initiated in contrast to individual fundamental rights cases, and under any necessary prescribed limitations, to make particularly the State and the political parties accountable on the principles enunciated in this chapter*. One necessary ingredient might be a ‘Human Rights Court’ both hearing cases under the fundamental rights chapter and ‘public interest litigation’ under the proposed present chapter. There is also an increasing awareness and opinion, following some initiatives in Germany, to make the political parties accountable and/or make them effective and constructive parts of a constitutional system.
This article proposes 16 propositions as examples of how such a chapter on fundamental duties, binding on the state, the political parties and also the citizens could be formulated. As you could see, the ‘non-governmental sector’ is roped into the formulations. The private sector is also not spared. While some of the propositions are routine or traditional, others might give perspectives on future directions.
Constitution and Country
It is the primary duty of the State, all state institutions and representatives/officials to recognize the Constitution as the supreme and fundamental law of the country and obey its provisions. All political parties, non-governmental sectors and all citizens are obliged to do the same while retaining the freedom to peacefully criticise and seek changes to its provisions in part or as a whole.
It is the duty of the State to protect and preserve sovereignty, territorial integrity and national unity of the country. All political parties, non-governmental sectors and all citizens are obliged to do the same while retaining the freedom to peacefully differ, criticise and seek changes to the policies of the State in respect of the above.
Social and Ethnic Harmony
It is the duty of the State to promote national unity among the people, build ethnic and religious reconciliation and harmony and maintain peace and stability in the country. All political parties, non-governmental sectors and all citizens are obliged to do the same while retaining the freedom to peacefully differ, criticise and seek changes to the policies of the State in respect of the above.
It is the duty of the State to recognize the diversity of cultures, customs and practices and protect them as far as they are not in breach of the constitution, laws or the cultures, customs and practices of others. It is the duty of the State to promote multiculturalism in the country, set out its policies and at the same time promote Sri Lankan identity above and over multiculturalism. All political parties, non-government sectors and all citizens are obliged to do the same while retaining the freedom to peacefully differ, criticise and seek changes to the policies and practices of the State in respect of the above.
The State shall not promote in any manner ethno-nationalism in the country directly or indirectly. On the contrary, the State shall promote civic nationalism and liberal patriotism based on most enlightened religious and secular principles, fundamental human rights, and cosmopolitanism. The State shall launch educational programs, formal and informal, to promote the above. All political parties, non-government sectors and all citizens are obliged to do the same and participate in such educational programs at will while retaining the freedom to peacefully differ, criticise and seek changes to the policies and practices of the State in respect of the above.
Social Justice, Equity and Poverty Alleviation
It is the duty of the State to ensure and promote social justice in all spheres of economic, social, political, civil and cultural life of the people taking inspirations and guidelines from international human rights and democratic norms and strictly following the ‘fundamental human rights and freedoms’ chapter in the Constitution. It is the duty of all political parties, non-governmental sectors and all citizens to do the same while retaining the freedom to peacefully differ, criticise and seek changes to the policies and practices of the State in respect of the above.
The State has special obligations to alleviate poverty and look after the poor and the marginalized in society. It is the duty of the State to promote policies and programs to bridge the gaps between the rich and the poor and promote equitable income distribution throughout the society and the country as much as possible. The State should seek the cooperation of the private sector and all sections of the society to develop the economy and society, in a sustainable and equitable manner and it is the duty of the private sector, all political parties, other sectors of society and all citizens to support the State in these ventures while retaining the freedom to peacefully differ, criticise and seek changes to such policies and practices.
Children, Women, Elderly and Disabled
The State has special obligations to look after the rights and welfare of the children, women, elderly and people with disability. It is the duty of all political parties, non-governmental sectors, private enterprises and all citizens to support such efforts and likewise look after the rights and welfare of the children, women, elderly and people with disability within families and in society.
Free Education and Health Care
It is the duty of the State to maintain and promote free education including higher education with the cooperation of the private sector as necessary. It is also the duty of the State to maintain and promote free healthcare and hospitals with the cooperation of the private sector as necessary. The public private partnership (PPP) should be the norm. On both education and health, the State should determine target allocations from the annual budgets from time to time. When citizens offer education or health in the private sector, the State should ensure that those services are affordable. The State should have a national medical drugs policy to ensure all necessary medical drugs are affordable and available. It is the duty of all political parties, non-governmental sectors, the private sector and all citizens to support the policies and programs of the State on free education and health care as much as possible while retaining the freedom to peacefully differ, criticise and seek changes to such policies and programs.
Welfare and Social Services
It is the duty of the State to maintain and promote general welfare and assistance services as necessary to the citizens without any political or any other partiality through the national services, provincial councils or local government institutions. These should be announced in national, provincial and local government budgets and policies. It is the duty of all political parties, non-government sectors and all citizens to support such efforts while retaining the freedom to peacefully differ, criticise and seek changes to such policies and programs. It is the prerogative of all citizens not only to obtain these services as necessary but also to support them through voluntary work or any other means.
Environmental Protection
It is the primary responsibility of the State to protect the environment within its territory, land and offshore, in line with international standards and efforts, and reduce greenhouse gas emissions. It is the duty of all political parties, non-governmental sectors including the private enterprises and all citizens to do the same and support the efforts of the State in those ventures while retaining the freedom to peacefully differ, criticise and seek changes to the policies and practices of the State.
Personal Security, Law and Order
It is the primary duty of the State to maintain law and order and ensure social and personal security of citizens through effective and citizen’s friendly police service/s and other law enforcement agencies particularly preventing robbery, theft, crime and violence in society. It is the duty of all political parties, non-governmental sectors and all citizens to cooperate with the State, the police service/s and other law enforcement agencies in preventing robbery, theft, crime and violence in society while retaining the freedom to peacefully differ, criticise and seek changes to the policies and practices of the State, the police service/s and other law enforcement agencies in this respect.
Duties of Public Servants
It is the primary duty of all State officials including the police officers to serve the citizens, be polite to them, and maintain the best professional standards and refrain from favouritism, nepotism or any kind of monetary or other misdeeds. It is the duty of all political parties, non-governmental sectors and all citizens to extend cooperation to state officials, follow all relevant rules in dealing with them and refrain from trying to influence them politically or in any other respect while retaining the freedom to peacefully raise issues, stand for one’s rights or peacefully differ, criticise and seek changes to the public services and practices as relevant.
Duties of Political Parties and Leaders
It is the duty of all political parties to be democratic in their policies and organizational structures, maintain high professional standards and refrain from nepotism, and any kind of monetary or other misdeeds. It is the duty of political party leaders to be accountable to their members, party organizations and maintain transparent and accountable practices for campaign funding and refrain from nepotism or any unethical practices.
It is the duty of all political parties, politicians, national, provincial or local, to maintain high standards of professional ethics and refrain from favouritism, nepotism and any kind of monetary or other misdeeds. It is the duty of the State to have codes of ethics for all members of parliament, provincial councillors, and local government representatives.
Duties of Citizens
It is the duty of all citizens to be respectful to each other, recognize each other’s dignity and rights, be reasonable and rational in all dealings with the state officials or fellow citizens and refrain from violent or aggressive behaviour at all times. All politicians, citizens and media personnel should refrain from hate speech or expressions that could lead to incitement or social disharmony.
Note that the duties to respect human rights including economic and social rights and freedoms are not included here as they can be more effectively protected and implemented through a ‘Fundamental Human Rights and Freedoms’ chapter. All legally enshrined fundamental human rights automatically generate necessary duties.
*It should be noted with appreciation that Don Stanley is one who has consistently advocated making political parties accountable in the constitution in his comments on various articles in the Colombo Telegraph on the subject. However, his idea was to have a separate chapter on political parties.
Vibhushana / March 2, 2016
“Multi-cultural-ism” works when there is a common language of communication. Its the single language that binds all cultures.
In Ceylon the 1956 language act was spot on. A single national language Sinhala. Wherever there is another language used predominantly that language will be used in an official capacity along with Sinhala.
Sinhala should be the link language as majority tax payers are Sinhala. What happens now is quite ridiculous where the entire population is expected to learn English to link with others. When will rickshaw drivers, street vendors and farmers learn English?
Its imperative everyone learns Sinhala. They can prefer to have 2nd and 3rd languages as second languages.
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Nathan / March 2, 2016
Your command of that stupid English is exceptionally good. Where did you learn it? Why did you learn it?
A taxi-driver earns better with knowledge of English! Check with them. A student learns better with knowledge of English. Check with them.
We all need to communicate with the rest of the world. We can no longer exist in isolation. Check with others.
The earlier we settle for that the better for your children and mine.
Show mercy on our children. Don’t drag them also down the sodden path of yours.
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Vibhushana / March 3, 2016
Well, the taxi driver is not an airline pilot. Whether its a taxi driver or school child they engage with locals first. The first common language is therefore Sinhala.
Language education is an investment. The majority tax payers invest in language education to benefit the local economy of which 80% is in Sinhala.
If you do not want your children to lean English in preference to Sinhala then that is fine. Take them out of free education which is majority funded by Sinhala people to benefit the local economy.
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Nathan / March 3, 2016
Read your response back, and see if it makes any sense. At times it is better to hold on to your silly thoughts, rather than putting them into words.
Try it this time. You’ll enjoy it!
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Vibhushana / March 3, 2016
Well, the reason I chose your comment to respond was you made a point which I adequately addressed. I have made my response knowing full well it makes sense. Now I want you to respond in kind.
I will present the dilemma with an example.
The opposition leader of the country listens to Sinhala being spoken via a translation headphone. I believe he can speak broken Sinhala and knows a little Sinhala.
Now, his education would have been funded by majority Sinhala tax payers contribution – so would have been his salary and pension.
You would think given his entire livelihood depends on Sinhala tax payer contribution he would take the necessary steps to learn the language isn’t it? He benefits from Sinhala money but not returning the favor.
What will happen if this happened in another country? Will it be different there?
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Dr.Rajasingham Narendran / March 3, 2016
Vibhushana,
You have fired this tax canard too often!
They Tamils like other communities in this country pay their share of the direct and indirect taxes and have the right to expect their share of the State services. The Tamils lost more in terms of their material wealth and lives, through various riots, looting, vandalism and arson, because the State failed to provide them the security that was their right. They have not been compensated enough for what they lost in material terms due to failures of governance. The State in fact colluded with the targeted destruction of Tamil wealth .
How would you compute the value of the Tamil lives lost due to these riots? Can these be compensated adequately, ever? How will you compensate for the pain-physical and mental inflicted on them?
Please note that I am not talking of the war and its consequences. I am talking only of the period preceding the wars.
This country owes the Tamils a big debt in material terms alone!
Please do not make false claims to sustain your week arguments.
Dr.Rajasingham Narendran
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Vibhushana / March 3, 2016
Dr. RN,
The minority populations in other countries pay their taxes too.
However normally that does not equate their language being made into a national language. It does not happen because its not fair on the majority of tax payers who derive no benefit.
The case where Tamils have suffered is totally irrelevant. The majority tax payers who are born today and tomorrow should not be penalized for something that happened years ago.
You blame the govt and equally I have far more compelling reasons to blame the Tamil leadership and subsequent Indian militarisation of Tamils for suffering of Tamils.
Besides, I can debate and win with you any given day whom and what reason lead to Tamil suffering. You can challenge me if you wish.
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Dr.Rajasingham Narendran / March 3, 2016
‘Vibhushana,
I reiterate the Tamils are no burden on anyone, unless you consider the cost of resetting the Tamils on their feet after the war a liability. How much foreign aid was received in their name after the war?
Please provide figures for the direct and indirect taxes collected from the north and east, and the money spent on these provinces to provide services like education and health care.
If you think the Tamils are a burden on the majority, the solution is simple. Empower the NPC and the EPC to collect the funds and mobilize the community to manage the schools. We will show you what we can do!
If this arrangement also does not satisfy the likes of you, let us separate by consent and mind our business! We do not want to be burden on anyone! We may be able to provide aid in a few years!
Did not the Germans and Japanese pay reparations after the Second World War, even though they were themselves devastated. Do not come out and say the war was between countries. It is a moral principle that one compensates for the damages deliberately inflicted or goes to jail. The Sri Lankan State did not provide security for the Tamils and was the instigator and collaborator in the many riots that took place in and before 1983.
Do not utter nonsense for the sake of perverse fun.
Dr.RN
You have deliberately avoided alluding to the damage caused to the Tamils before Prabaharan appeared on the scene. I personally lost all my valuables in the 1977 riots, ran for my life, lived in a refugee camp and left my job at the Peradeniya University. I witnessed the misery of thousands who had faced the same fate in that camp and those who were returned to Jaffna as refugees.
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Vibhushana / March 3, 2016
I don’t know “reparations”, “burdens” etc etc .. what planet are you on?
The Opposition leader of Sri Lanka cannot speak a word of Sinhala.
Yet he represents the opposition for 15 million people whom pay his salary.
The question – is that appropriate??? This is at the core of “Tamil cause” isn’t it?
You want to be a big player like the Sinhala. Although without speaking a word of Sinhala.
Whose dimwit’s idea was it? I’d like to know cause it has wasted enough of my time and energy.
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Dr.Rajasingham Narendran / March 4, 2016
Yes, he can! He can speak and understand Sinhala quite well. I do not whether he can read and write Sinhala. How isn’t there an automatic translation system in parliament? How does our president communicate with the
Diplomatic Corps? How does he communicate with visiting dignitaries?
Don’t be silly?’
Let every child in Sri Lanka learn English and Chinese, in addition to their respective mother tongues. They will be better off in their lives. If they could learn to speak and understand each other;s languages it will be even better.
Dr.RN
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Ajith / March 3, 2016
“Multi-cultural-ism” works when there is a common language of communication. Its the single language that binds all cultures.
The “Common” language is not the Sinhala language. Tamil is the most common language spoken by all other communities (Hindus, Muslims, Christians) other than single Sinhala Buddhists community. Tamil is also spoken in many meighboring nations and internationally. Most Tamils and Muslims can speak Sinhala and it is easy to teach Tamil to Sinhala Buddhists. If you want Sinhala only, that is also possible by dividing this island into two halfs, one for those only wants to learn Sinhala only and other for the most common language that is Tamil. On the Sinhala half you can cover yourself with warbed wires and entry barriers for those who speak other languages.
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Vibhushana / March 3, 2016
The most common language is English. Why is English not the language of Tamil Nadu?
The Tamil is language of Tamil Nadu as most of their tax payers know it and use it. Its inherent part of their economy.
Why should Sinhala tax payers fund language education that does not benefit the local economy first as in Tamil Nadu?
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Dr.Rajasingham Narendran / March 4, 2016
The Tamils in Tamil Nadu speak better English than Sri Kans now. The days we used to laugh at their English is long gone. A few years back the British were recruiting z=English teachers from Tamil Nadu!
You are best and only advocate for Tamil Eelam among the Sinhalese!
Dr.RN
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Mallaiyuran / March 4, 2016
I think multiculturalism works very well when there are no minorities in the Wildlife Sanctuary SinhalaE as declared by the old king. You can start it with deporting all others other than the one speak the multicultural Language. Then there should Solomon West Ridgway’s Sinhala Only should be there. That is how you make other to start use multiculturalism. To Multiculturalism superimpose other education, standardization necessary.
Vibhushana how is your language achieved the multicultural Language Status? It because you also have your own Koran and Ayatollahs in Kandy? Man, then it is only ISIS Culture. Not Multiculture.
To keep at least one cultural dimension the religious cultural interaction take place how many books you have printed in your Multicultural Language the Wild life Anndu Pashawe, The SinhalE, other then Mahanama’s Koran?
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Karaiyuran / March 4, 2016
Mallaiyuran
Why are you obsessed with Koran, Ayatollahs, ISIS, and Jihadists?
[Edited out]
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Amarasiri / March 4, 2016
Dr. Laksiri Fernando
RE: Fundamental Duties Of The State, Political Parties & Citizens
Fundamental Duties Of the Citizens is to write the Common sense pamphlet, so that the other citizens can be informed. Ask Thomas Paine. Sorry he is dead, bur can still read what he wrote.
Common Sense (pamphlet)
https://en.wikipedia.org/wiki/Common_Sense_(pamphlet)
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Karthigesu Nimalan-Nathan / March 2, 2016
This guy is talking out of his backside. A piece of ill conceived and moronic piece of legislation if ever there was one, which is the cause of all the ills our country has suffered.
Our education standards have dropped and has gone back in time and have produced morons like him and the Megalomaniac Mahinda Rajapaksha and family. If we go down this slippery slope we will find ourselves further down the black hole.
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sekara / March 2, 2016
Thank you for a socially responsible statement.
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Non PhD / March 3, 2016
Vibushana what was your MaRa’s hiden agenda among others on the language issue had he become a President for the 3rd time ?
Do you have any information on that hidden agenda ? If not you have the right to ask MaLinda, he will provide you the info.
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K.A Sumanasekera / March 3, 2016
Wonder whether our 225 Yahapalana constitutional experts and draughtspersons can understand all this?…
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Rizwan / March 3, 2016
Sir, this constitution is all encompassing and comprehensive. It addresses nearly all of the problems Sri Lankans face, from education to healthcare, to manner of conduct, to the environment and much more. It mandates that ethno nationalism be forbidden and it encourages democracy. It is a work that is pure and good in heart. Its intentions are honorable and just.
However sir I fear that the end consequence of this constitution will result in more ethno nationalism, a widening of the rich poor divide, a weakening of the quality of education and healthcare, and an ever rising cost of living.
Sir, this constitution will result in the complete and utter annhilation of Sri Lanka as a nation.
Sir, this is because it is the State that has wasted the valuable resources of this nation through unwise programmes. It is the State that has educated our children in subjects that the market does not need or require. It is the State that has caused the rise in healthcare costs and caused a fall in its quality. It is the State that has caused the purchasing power of the currency to fall.
And yet, you have called for more State intervention. Therefore logically it must have the exact opposite result!
Sir, do the opposite. Shrink this government. Let it not “promote”, but rather play the part as a “defender”. Let it defend life, liberty and property, as Bastiat in “The Law” implores. Let it do this because this is the only action the private industry cannot perform naturally.
Sir, the private industry can do, and has also so far done, all of what you want and more. This includes taking care of the disabled, elderly and children. Early America was the best example of private enterprise as the second largest industry in the late 19th century was the charity industry. Trust the private sector to take care of people and also the environment. Trust it to move this nation forward to a first world country. Sir, unleash its potential by making the State get out of its way.
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Dr Laksiri Fernando / March 4, 2016
Rizwan,
I appreciate your concerns. However, to me, it is an old notion to consider positive social action by the state would jeopardize individual development or infringe ‘life, liberty and reasonable property.’ I think especially in this 21st century, there is space for both. I would not agree with unlimited property although it is not my intention to advocate curtailment. On the other hand, there should be efforts not to allow people to depend on handouts. They do have duties as I have spelled out them. In my opinion, both ‘liberty’ and ‘welfare’ can coexist and both are necessary for each other especially in a developing country.
You may be right in a limited way to say that “the State has wasted valuable resources of this nation through unwise programs.” The answer is to correct them and not to scrap them. I don’t think every individual is endowed with equal potential to develop. Therefore, there should be assistance and services. There are people who are disabled, marginalized or poor. If the private sector can undertake them, why not? But not in the manner that the Central Finance people have done!
You seems to base your arguments or beliefs on Bastiat! To me, his notions or assumptions are wrong although this is not the place and time to discuss them in detail. There is no country which has developed on Bastiat’s assumptions, not even the USA. If not for the New Deal at the crisis situation, America could have been ruined. One the other hand, Nordic countries and even Germany proved the opposite. Even in Switzerland where I have lived for seven years, education is free including university education.
However, there is nothing wrong in promoting the private sector undertaking charity or looking after the elderly etc. Please go ahead without wasting time. Even their participation is necessary, as I have said, in education and health care. However, their capacities are limited. If you shrink the State particularly at this stage without promoting partnership (PPP), you will face the third insurrection both in the South and the North.
Laksiri
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Sri- Krish / March 3, 2016
Prof Laksiri Fernando
I wish to make some comments on your excellent article.
Fundamental Rights are usually related to Individual Rights and allowed to be suspended on flimsy grounds.
This is unfortunate like giving with one hand and taking away with the other hand.
Fundamental Rights shall be as far as possible be made synonymous with human rights and shall be made applicable to groups as well.
This means that the Tamils, Muslims, Feminists and others as groups are entitled to fundamental rights and these individual and group rights are enforceable in a court of law preferably at high courts level with right of appeal to supreme Courts.
The infringement or eminent infringement of fundament right s shall be made punishable and every citizen or groups are allowed public interest litigations in such instances. The courts should also ensure that any infringement is adequately dealt and the status qua maintained.
I am afraid under the new set up, the politicians are going to play the leading role along with some constitutional lawers who agrees to be the stooghes of the politicians. Tjhis should not be allowed to happen.
The civil society and the professionals should act before it is too late. Eternal vigilance of the civil society is very much in need.
The constitution must be an inclusive act of all citizens and groups of the country
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Dr Laksiri Fernando / March 4, 2016
Sri-Krish,
I almost completely agree with you except perhaps on some details. I sent my comprehensive proposals to the Public Representations Committee (PRC) this morning and proposed the chapter should be titled “Fundamental Human Rights and Freedoms.” On most other matters, I have sent detailed (proposed) formulations, but informed that I will be sending proposed formulations on fundamental human rights in due course.
You must have seen that People’s Democratic Centre (PDC – Thiranagama) has taken up the position that “All the individual rights guaranteed by the Constitution need to be available to groups too.” I am not sure whether this could completely be the case, while I would relate both as relevant in my formulations. However, there are very clear group rights to be spelled out.
Like you, even I thought the proper legal mechanism for justiciability could be public interest litigation which I have proposed for a possible chapter on “Fundamental Duties of the State, Political Parties and Citizens” as stated in this article. I also have an idea about how it should work. You must have noticed that I have proposed a ‘Human Rights Court.’ It is both for individual litigation on individual rights and public interest litigation on group rights and fundamental duties.
On your concerns on how the process would proceed (!), I am personally quite helpless except for writing at the moment, but hope that people living in Sri Lanka could be more active. At the same time, I am cautiously satisfied with the interest shown by civil society organizations, groups and individuals. Let us hope for the best.
Laksiri
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Sri- Krish / March 5, 2016
Laksiri,
Thanks for your response!
But how to make the Judiciary and the independent commissions really independent.
The moves to have five member Independent commissions and have Muslim and Tamil token presence is counterproductive.This mere act accepts that our commissioners are biased towards their own community and by having majority Sinhala members the result is then the same.
Do not we have citizens who are beyond any bias!Doesn’t we have persons with character to serve as members.
Communal representation will make things verse!
These commissions should safeguard the rights of individuals against unfair actions by the governments.
The civil society and the professions should be much more involved and the sholud not continue with the blame games.
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