6 December, 2020

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Increase Of Crimes And Constitutional Tomfoolery

By Basil Fernando

Basil Fernando

The construction of a government that prevents one person becoming the prey of another can be said to be the aim of constitutionalism. Ever since Montesquieu, the greatest of political thinkers and statesmen have struggled to develop principles to achieve this aim of preventing citizens becoming prey of rulers who rule not for the purpose of achieving the greater good for the people, but to enrich themselves at the expense of the nation. The foundations of most of constitutions developed to achieve this aim are based on the work of John Locke.

The recognition of the liberties of the individual as a central concern is one of the major characteristics of a government that is created for the purpose of preventing authoritarianism, which simply means the attempts by the ruler to control the nation for the benefit of him or herself as against the interests of the population. Without embedding the liberties of the individual as enforceable rights, it is not possible to have a form of governance that is for the benefit of the people.

The development of the idea of the separation of powers arises from the recognition that the liberties of individuals are a part of the structure of the government. That the executive should be controlled by a system of restrictions on power led to the recognition of separate branches of government. Such separation, therefore, cannot be artificial and has to be genuine, so as to bear concrete results when disputes arise between the ruler and the individual citizens.

The development of judicial power arose from this recognition of the conflict that is unavoidable between the ruler and the individual citizens or groups of citizens. In such conflicts, the settlements need to be fair and the working out of such fairness is what is called justice. Thus, there is always a conflict between power and justice. The task of those who hold judicial power is to protect the individuals or groups of individuals without allowing them to become prey for those who hold power. If those who hold judicial power are unable to do that, then their existence has no purpose.

The right of the judicial review of legislation arises from these same principles. In the name of making laws, the rulers should not be allowed to suppress the rights of individuals or groups of individuals. To put it in another way, legislation should not be a means of making individuals or groups of individuals prey of those who hold power.

Thus, the judicial power and the power of judicial review are inseparable. To say that there is the separation of powers is to say that the judiciary has judicial power. To say that judges have judicial power is to say that they have the power to review legislation.

That even this simple premise has become a matter of dispute in Sri Lanka shows how some people have become so powerful that they claim the right to make prey of others.

When Justice Vigneshwaran spoke of the constitutional tomfoolery played in Sri Lanka, what he was pointing to was the way that the very basic principles of constitutionalism have been distorted by the 1978 Constitution and how the 18th Amendment to that Constitution has completed that distortion. This tomfoolery has made the Sri Lankan legal system into a dysfunctional system. The present attempt to remove the Chief Justice of the country without observing the internationally recognized norms relating to such removals will further destabilize the entire legal system of the country.

Everyday events are showing the extent to which the whole system is distorted. Take, for example, the situation of a village, now well-known to everyone due to a large number of mysterious killings that took place there. The murders took place in the village of Kahawatte, where about 20 persons were brutally killed within a short span of time. Now reports are coming out about how some of the alleged murderers are being dealt with. Two people were reported to have been shot dead after they were released on bail. A third person has gone missing since last week, also after getting bail. It was not long ago that four persons who were initially arrested as suspects of a brutal murder were found dead with gunshot injuries, with their hands tied behind their backs and blindfolded. The suspicion is that these killings are done by the police or paramilitary groups, and that this is the way crime is being dealt with in Sri Lanka.

In some other cases, the suspects have connections to the government. It is just under a year ago that a British citizen was brutally murdered by the Chairman of the Pradeshiya Sabha, Sampath Chandra Pushpa Vidanapathirana and others, in Tangalla. A Russian girl, who the murder victim was protecting, was also attacked and narrowly escaped death. However, the suspects are now roaming freely.

Thousands of similar situations have been reported.

The attempt by the rulers in Sri Lanka to manipulate and play the fool with the constitution and other laws has created this situation.

These are matters that should be a big part of the discussion on the impeachment issue. Do Sri Lankans want to continue to be the prey of their rulers or do they want a rational form of governance that will protect them from being such prey? If the people want the latter, then they should protect their judiciary, which is their last resort when they are faced with assaults because of the failure of governance.

None of these serious matters are of any concern to the state media. The state media does nothing at all to expose the failure of the system of governance in the country. Their attack is on those who do try to expose these matters and call for a reform of governance in order that the people’s security can be assured. Cynics who support constitutional tomfoolery lead these state media programs. Such cynics, who get paid with taxpayers’ money, sing songs for those who prey on the people themselves.

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Latest comments

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    Basil Fernando has gone bonkers and desperately after cheap publicity.

    GOSL has fallen prey to Basil F’do.
    If there is no Motesquieu can not be found in this world what does Basil F’do expect from GOSL? To another similar to him from thin air??

    What is Basil looking for in GOSL? A Govt run according to the theory he speaks here. Is basil dreaming or hallucinating?
    Did he live by the Oath he took??

    Yeap… everyday events show the whole world is distorted not only Sri Lanka. However, Basil F’do is claiming milage of his paymasters at the expense of Sri Lanka and behave like a toothless tiger from Hongkong with no sting but promoting himself.

    If Basil F’do do not want to be a prey of the GOSL, he should stay where he is and leave Sri Lankans in Sri Lanka alone. They can fend for themselves.

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    Basil Fernando has gone bonkers and desperately after cheap publicity.

    GOSL has fallen prey to Basil F’do.
    If there is no Motesquieu can not be found in this world what does Basil F’do expect from GOSL? To another similar to him from thin air??

    What is Basil looking for in GOSL? A Govt run according to the theory he speaks here. Is basil dreaming or hallucinating?
    Did he live by the Oath he took??

    Yeap… everyday events show the whole world is distorted not only Sri Lanka. However, Basil F’do is claiming milage of his paymasters at the expense of Sri Lanka and behave like a toothless tiger from Hongkong with no sting but promoting himself.

    If Basil F’do do not want to be a prey of the GOSL, he should stay where he is and leave Sri Lankans in Sri Lanka alone. They can fend for themselves. Like the TNA forcing themselves on Tamils, Basil F’do do not need to force himself on Sri lanka & Sri Lankans.
    Basil F’do is a coward who had runaway from Sri Lanka and hence has no business to criticise Sri Lanka.
    Sri Lanka does not need Basil F’do and only his pay masters need him.

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    Thanks for this statement and your tireless efforts to educate the folk on the nature of the Rajapakse regime and its putrid governance record!
    What is very troubling is the SILENCE of the principle opposition party the UNP and its failure to carry out a campaign to TELL THE TRUTH ABOUT THE IMPEACHMENT, CRIME AND CORRUPTION of the regiem and EDUCATE the people and voters… and prepare the ground for the LANKA SPRING to overthrow the rotten Rajapakse regime.
    The UNP under Ranil Wickramasinghe is has failed massively in its responsibility and obligation to educated and keep the people of Lanka informed about the abuse of power by the Rajapakse regime.
    The UNP has become an ANTI-PEOPLE AND ANTI-DEMOCRATIC PARTY since Ranil Wickramasinghe hates the people of Lanka who will not vote for him!

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    Dear Basil, Thank you very much for your important valueable comments on our pathetic political situation in our country.You are a good critic but come and help us to implement our wrong tracks without pointing fingers to political leaders(Bana Kiyala Vadak neha-katin bathala Hittewwata vedak naha.)

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    There appears to be a breakdown in morals of the general public just as there has been a a decline in ethics of people in professions and services. Morals are the principles of right and wrong from the personal point of view, whereas ethics are the standards of behaviour set by the group or society.
    Crimes such as murder, homicide, rape, theft etc mostly stem from the lack of moral behaviour. This could be the result of the breakdown of social, family and religous values. People from broken families, broken homes, those living in squalid conditions exposed to crime are more likely to commit crimes due to the effect of the environment on their moral state. Children often follow the footsteps of their parents or other role models. So the incidence of such crimes is not directly due to the Govt. The criminal is directly responsible for his actions and one cannot transfer this responsibility to an external party unless it was a deliberate act of instigation.
    Increasingly we see the involvement of services personnel in crime which may be due to PSTD and their familiarity and access to the use of fire arms etc. The characters of those who have killed in the line of duty to the nation cannot but remain scarred by the wounds of guilt and remorse.
    The Government on the other hand has to take direct responsibility for the incidence of political crimes, financial crimes, corruption, nepotism within the Public Service carried out by politicians and their supporters. Government is also directly responsible for implementing the rule of law through the police service. What we now observe is that the police service has been badly compromised by the leaders and politicians and are unable to carry out their duties. Even the highest office of IGP is subject to intense pressure from the executive and as a result the policemen have no option but to follow orders or be transfered and deprived of promotions etc. So the orders to lay off cases or free suspects due to lack of evidence etc is a direct result of political interference in the police force. Police force is politicised by recruiting supporters of the various politicians who are not suitable for this post. What was a respectable police force has degenerated into a political garbage bin.

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    Thanks Basil for a well articulated article.

    I give below some random thoughts ie whatever that came to my mind without any hidden agenda either to support Shirani Bandaranaike or the government!

    You have brought the appropriate perspective to the Impeachment debate by looking at the total picture.

    Let us not allow the government stooges to define the scope of this debate, but still there are questions- valid questions –not merely confined to the debate on impeachment but on the whole process of constitution making.

    It is not a theoretical issue, but a practical down to earth approach?

    But Basil is it possible to have an ideal constitution for all the times?

    Does not a constitution reflects the balance of forces within a country at a particular period of time in the history of a country?

    What role democracy plays in the constitution making.

    If there is an ideal constitution what is the role of the people in the formulation of the people. What role the constitutional lawyers play in the whole process?

    Shouldn’t the politician play crucial role rather than the constitutional experts?

    Doesn’t the constitution reflect the fears and aspirations of a people?

    Does it not evolve over a period? Does any country have an ideal constitution?

    The constitution, preventing authoritarianism, the separation of Powers, and the independence of judiciary are all written in pieces of papers. Implementations gives the pieces of paper a meaning, a life.

    They become valid only when it is managed by committed individuals of unimpeachable characters.

    We had Presidents, All of them may be similar or different.

    We had chief justices who wanted to help the elected representatives to carry out their mandate or some hidden agenda at the expense of real interpretation of constitutional provisions or the rights of citizens come first for them.

    However they found a way to justify their actions by interpreting the same constitution to suit their mood?

    Who could be blamed for the present plight-The constitution with all the amendments or the personality of the individuals?

    Now let us look at the 1978 constitution!

    The 13A,16A ands 17A really enriched the much maligned 1978 constitution.

    But many provisions in these amendments remained not implemented.

    People were not involved in the formulation of the constitution.

    A government that came to power with a massive parliamentary majority

    But who really designed the constitution, How democratic is it?

    What went wrong?

    why it went wrong?

    How the people will be reflected in the constitution?

    People are ignorant ?and people were taken for a ride and we simply have to expect an enlightened leadership to spearhead a constitution,but it will still be a man made constitution?

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