21 January, 2019

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NMSJ And Constitutional Reform Proposals

By Laksiri Fernando

Dr Laksiri Fernando

It is undoubtedly a welcome initiative by the National Movement for Social Justice (NMSJ) to come up with a set of proposals to reform the constitutional framework highlighting the need to abolish the much hated executive presidential system as a key change. The relevance of the proposal/s and the initiative is underscored by the constitutional crisis that the country had to traumatically undergo during the impeachment saga, which is also not yet over, and by the fact that the present initiative has come from a credible civil society organization led by Ven. Maduluwawe Sobitha Thero, unlike in the past.

Broken Promises 

In the past, the promises to abolish the presidential system mainly came from political leaders and parties who were aiming for victory with the support of the broad masses and when they won the elections, the promises were completely abandoned. This was the situation in the case of Chandrika Kumaratunga and the PA in 1994 and also Mahinda Rajapaksa and the UPFA in 2005. It is difficult to say whether the leaders who made the same promise, but could not win like Sarath Fonseka in 2010, would have been different if won. The usual excuse both by CBK in 1994 or MR in 2005 was the lack of 2/3 majority. However, if Mahinda Rajapaksa was believable then he had more than 2/3 since 2010, but instead of abolishing the system it has been strengthened in unimaginable proportions by the 18th Amendment. What has been proved is ‘power corrupts, and absolute power corrupts absolutely’ (Lord Acton).

The UNP has never been enthusiastic about abolishing the presidential system completely. In year 2000, they first agreed for a change and then backtracked on the excuse that the CBK government was not genuine on the matter which might also be correct. The executive presidential system is in fact their baby. Instead, having realized people’s displeasure about its authoritarian character, they have talked about transforming it into an executive prime ministerial system but it is very much easy to abandoned even that promise on the excuse of 2/3 majority. After all, there might be no big difference between the two in practice. Moreover, no party is likely to obtain 2/3 majority single handed at the next election under the present system of proportional representation and therefore it is unlikely that the UNP could be the catalyst for this constitutional change unless something dramatic happens within and outside the party to persuade the leadership.

The above might be the very reason why the NMSJ has started its campaign within the civil society instead of political parties, however proposing their 15 point program of constitutional reform “to be included in the election manifestos of [all] political parties and candidates and then move on with the amendment immediately after the Elections.” Whether this is going to be just wishful thinking or not will depend on (1) the way the NMSJ would be campaigning on the program (2) the responses of the general masses and their key organizations i.e. trade unions, religious associations, women and youth organizations and credible NGOs (3) the reactions of political parties or their enlightened sections and (4) the national issues that would unfold in the coming future, favourable or unfavourable to such a reform scheme.

15 Point Program

The 15 point program aiming at broad consensus among diverse sections does not cover all aspects of constitutional reform, but some of the key issues. It declares that “The Executive Presidency shall be immediately and totally abolished with a return to a Parliamentary form of Government. The President shall be elected by Parliament and shall act on the advice of the Prime Minister, unless when there is express constitutional provision to the contrary.”

What it means by ‘a parliamentary form of government’ undoubtedly is what we had particularly before 1972 however within a republican framework. It is widely accepted that the 1972 constitution brought some distortions to parliamentary democracy. These became enhanced and aggravated under the presidential system diminishing the independence of the judiciary, checks and balances, and political neutrality of the public services. The most prevalent system of democracy in the world today is parliamentary democracy and although a presidential system is also considered broadly democratic, the application of it in developing countries has always spelled disaster.

Even in the United States, although the presidential system is mostly democratic internally, its behaviour externally is oppressive and aggressive largely due to the presidential powers. It might not be a mere coincidence that major conflicts, widespread political violence, insurrections, terrorism and war became menace in Sri Lanka under the presidential system. If the system continues, the possibility of re-emergence of these hazards would be high. The system has further degenerated today into a ‘family oligarchy’ for the whole world to see. The possibility of such a catastrophe is not possible under a parliamentary democracy properly monitored by peoples’ initiatives and the independent media.
It is not only the presidency that the program has called for change. The present PR system is another change envisaged, proposing a mixed system of PR and FPP also abolishing the much divisive ‘manape’ or preferential voting. Under the proposed system, the voters will have the opportunity to elect their own MPs or ‘ape manthri’ in a smaller electoral constituency like in the good old days, while a limited proportional system will operate to keep a balance between parties and also to give representation to smaller parties or groups that are spread out beyond one constituency. The proposal also restricts the opportunistic party crossovers, and if a MP from a seat changes party then there will a by-election.

There is no doubt that the proposed system is rational.

In terms of ‘constitutional principles,’ the program has come up with certain admirable values which are articulated in four principles as “(a) supremacy of the Constitution and the rule of law; (b) representative democracy, human dignity, the achievement of equality and social justice and the advancement of fundamental rights and freedoms; (c) racial, religious and gender equality; and (d) universal adult suffrage, regular elections and a multi-party system of democratic government.” It is in respect of ‘regular elections’ and in strengthening the voter participation in governance that the program has called to limit the life of parliament to only five years. This may be much acclaimed by the people.

Other Reforms

More admirable would be its call for the constitutional recognition of ‘multicultural, multilingual and multi-religious’ nature of the people that constitute the Sri Lankan nation. As it says “The peoples of Sri Lanka who together constitute the People of Sri Lanka have the right to develop their own language, protect their own religion, to develop and promote their culture, to preserve their history and the right to their due share of State power including the right to due representation in institutions of government, without in any way weakening the common Sri Lankan identity.” At the same, time it categorically says that “This shall not in any way be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of the Republic.”
It is on the lines of limiting the abuse of power and strengthening checks on governance that it proposes that “The number of Cabinet Ministers shall not be more than 25. The total number of non-Cabinet Ministers and Deputy Ministers shall not be more than 25 and no other Minister in whatever description would be permitted.”

It proposes to do away with the 18th Amendment and bring back all the desirable elements of the 17th Amendment, the Constitutional Council and the Independent Commissions. What might be lacking is a proposal for a Senate or a second chamber. Its proposal for a caretaker government, free from the clutches of the incumbent government, is innovative and ensures the much needed free and fair elections. The proposed constitutional reform will make the official language policy unambiguous enthroning both the Sinhala and Tamil languages equal status, and all three languages including English, as national languages. While this is undoubtedly a reasonable policy, one even might wonder why not make all three languages official languages; simple, clear and useful. Anyway, English is already a ‘de facto’ official language. This would not preclude anyone to communicate officially in Sinhala or Tamil.

The whole constitutional proposal appears to anchor strongly on human rights and good governance perspectives. It is on that basis the principles of constitutionalism and rule of law are derived. There is no surprise therefore that the NMSJ intends to strengthen and expand on the fundamental rights chapter in the constitution and calls for a vibrant people’s debate on the subject. People in Sri Lanka definitely deserve more freedom and well defined civil and political rights. What in addition required might be firm guarantees for economic, social and cultural rights of the poor and the marginalized in order that poverty and vast socio-economic inequalities are eliminated from our society. There is no point in having economic and social rights only in name. They should be enforceable.

The proposals to ensure the independence of the judiciary and rule of law in the 15 point program are unambiguous including an acceptable procedure for any future impeachment.

Tasks Ahead

If there is any major weakness in the proposals, then that clearly pertains to the lack of emphasis on to safeguard the provincial council system and the principles of the 13th Amendment. There are references to the provincial councils in the text but no clearly expressed commitment. It may be possible that the drafters wanted to take time to build up broader consensus. But in changing the constitutional structure from authoritarianism to democracy, there cannot be any ambiguity or hesitation on the subject of devolution. Small hesitations could lead to big stumbling blocks later. Therefore, I wish to personally appeal to Rev. Maduluwawe Sobitha to give due consideration on this matter and express clearly his commitment to the principles of the 13th Amendment without much delay.

One comment to the drafters of the proposal/s is that, whether they write in English, Sinhala or Tamil, as these matters pertain to the ordinary people for a fruitful and vibrant public discussion, to make their language in the future more lucid and clear without much legal jargon.

Having said the above, the main challenge for constitutional reform or anything else would be how to mobilize the masses for constitutional reform under the given oppressive circumstances. The President most often challenges, rather sarcastically, the opposition to organize if possible something like ‘janagosha,’ ‘padayathra’ or mother’s fronts as he was doing during his opposition days. This is the challenge. To his credit, it must be added that he was doing all these, peacefully and effectively. There should be determined young people who could take up the challenge and mobilize the masses in order that democracy is reinstated in Sri Lanka again through peaceful but forceful transition.

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    A civil Society Organisation headed by Rev.Sobhitha ably assisted by eminent lawyers, Academics and trade unions etc have come out in an attempt to bring sanity to the Island.We worship Sobitha hamuduruwan for enlightening the public of perils to Sri Lanka for quite a while.This document is very precious as it did not come from the hands of opportunistic politicians This Movement needs the blessings of all Sri lankans irrespective of religiosity and ethnicity for they are speaking on behalf of all of us.Young people such as University students who represent whole of Sri Lanka should be prepered to take this to their villges and mobilise people.

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    Ven. Maduluwave Sobitha and his Christian-Marxist friends
    C. Wijeyawickrema, LL.B., Ph.D.
    Service of a monk
    The monk Ven. Sobitha (S) did lot of great service to Sri Lanka, especially to the Sinhala Buddhist cause. He was never a racist; he was presenting the reasonable path. A true Buddhist monk cannot be discriminating against any other living being or destroy or harm even a tree or an insect without a valid reason. He was very active and at times emotional and was no fake monk. Once he asked from Kumar Ponnambalam “Can you tell us what special problems Tamils in Sri Lanka are facing which are not faced by Sinhalese and Muslims?” Kumar after thinking for a while said, “Tamils have aspirations.” Ven. S was like a fruit tree attracting bats. This was why the Marxist daughter of a white Christian English woman, Vishaka Kumari Jayawardena sent to her husband Lal J at WIDER in Norway (relatives of Milinda Moragoda) a picture of a fiery-looking face of S to be used for the front cover of Stanley Tambiah’s book, Buddhism Betrayed, which was banned in Sri Lanka. The anthropologist, Gananath Obeysekera, now in the Friday Forum in Colombo wanted the ban lifted. It was Ven. S’s reputation as a symbol of reason, that Kumar David (KD), a Christian-born, Tamil Marxist, tried to capitalize to dislodge MahindaR at the next presidential election. KD proposed to use S as a single issue candidate to abolish Executive Presidency as the next election issue. KD sent a trial balloon and H. L. Seneviratne living in Virginia, another anthropologist, who blamed Vens. Walpola Rahula and Yakkaduwe Pragnarama for Sri Lanka’s problems in his book “The work of kings,” was thrilled by KD’s brilliant idea. People like KD who are looking for any loophole to promote Eelam agenda was trying to get S as a cat’s paw. These toothless Marxists are going crazy. See what Vasudeva and Bahu are doing. At least Tissa Vitharana and Dew Gunasekara have now become silent lambs.
    Using Buddhist monks as pawns was going on in Sri Lanka at least since 1956. This was done by the black-white Colombo crowds who are predominantly Christian or Christian Tamil. For example, Buddharakkita and Somarama were used by them to kill SWRD. Ossie Corea (OC) and Inspector Newton Perera were suspected but escaped. OC had his head shaven at the time and somebody jumped out from the wall behind SWRD’s house. These same forces tried to give cobra venom to SWRD at a cabinet meeting and CP de Silva drank the fateful glass of milk. Even then SWRD did not want the police guard to search monks visiting his house. It was these forces which had the 1962 Coup. A classic example of using or fooling Buddhist monks was the appointment of Ravi Karunanayaka (RK) as the chief dayaka (not just a dayaka) of the Kotte Raja Maha Vihara. The only result was that the main branch of the Naga (Bo?) tree hanging on to the Catholic Church side was removed (cut) and the tree died! RK is the son of the daughter of CC Dissanayaka (CCD) who led the 1962 Coup. CCD could not attend the wedding of his daughter because he was arrested by his own brother S.A. Dissanayaka. SWRD did a wrong act by not appointing CCD as IGP simply because he was a Catholic. Instead, a Buddhist, Abeykoon, a puppet, was given the job who only knew how to play bridge at the elites’ Sinhalese sports club! I write these little tit bits of history for the benefit of readers who are young and those who have forgotten them. They have great historical value in understanding the dramas we see today. It is my intention to try to help Ven. Sobitha to understand the black-white game fooling Buddhist monks.
    I do not know if Ven. Sobitha was also in the category of those Inter-faith monks like Vens. Dambara Amitha, Bellanwila Wimalaratena or Baddegama Samitha. Living with people of other religions in harmony is different from thinking God-based religions are the same as Buddhism. This Inter-faith bait was eaten by the Buddhism minister PM and ruined the 2600 Sambuddha Jayanthi. But it is clear that S has come under the control of Eurocentric black-white crowd in Sri Lanka. These people who were in the “this war is not winnable” boat are trying to capitalize on the politically inappropriate acts of MahindaR to derail him and to plant the germs that will break Sri Lanka or destroy Buddhist society in Sri Lanka. The constitutional proposals S presented have these hidden aims along with one or two good ones. For example, the most crucial issues are ignored, such as the removal of 13-A. Instead, appointing two Vice Presidents by ethnicity which will reinforce separate thinking is introduced. The most needed requirement of empowering people at the village level is also ignored. This last item is a solution to all kinds of corruption and inequities we can find in present Sri Lankan society.

    The two Tamil and Muslim Vice Presidents is in line with the new game called “meaningful devolution” by way of “unmajoritarian institutions.” This became so popular during GL-Neelan package deal days and CBK’s several versions of such deals. This method promoted by white Eurocentric writers like Donald Horowitz creates regional ethnic minority elites and slowly weakens the central governments in former colonies (it may take a decade or two or more), until a new Kosovo or South Sudan (or even a separate country of Scotland) is established splitting countries. Thus, the new policy of creating “unmajoritarian institutions” is a “sanitized” version of the old divide and rule policy, providing ladders to separatist monkeys to carve out separate countries at each other’s throat. Already, South Sudan started an internal war. Rohan Gunaratne from Singapore University used to promote a quota system for different ethnic groups in the army, police, government jobs etc. These are sure methods of breaking up of Sri Lanka.
    Lawyers are mostly crooks and the development of constitutional skeleton should never be entrusted to lawyers. It was lawyers who messed up all Sri Lankan constitutions since 1946. We know at least three names that Ven. S (S) has behind him or they use S as the front man. Jayampathy W is a Marxist who was with Tissa Vitharana’s infamous majority APRC report. J. C. Weliamuna is an NGO man and a Christian lawyer who does not reveal how much dollars he gets from his Transparency International agency. Elmo Perera is another Christian, writing as if he is some kind of a political science saint. Christian parents sometimes camouflage names of their children: Who would have thought that Ananda Tissa de Alwis or Jayantha Danapala are Christians?
    Good from the bad
    One basic problem with Ven. S proposal is that he forgot even war can produce some good results. Or bad things can bring good things. For example, JRJ got into trouble with India for his stupidity, arrogance and his false-blind faith in the U.S. government (Yankee Dickey). But in 1987 if he did not surrender to the Boy PM Rajiv Gandhi, India was going to occupy N-E and leave it after creating an Eelam with even parts of the Malayanadu annexed to it. So JRJ did the right thing at that time. Similarly his Executive Presidency monster served Sri Lanka in killing Prabakaran. EP is not a bad job post. It is the person who gets it who becomes bad and worse. MahindaR was able to make an Aladdin’s Lamp out of EP job to win the war. EP job can be controlled by other means. To throw it out like the baby with the bath water is not wise in the present geopolitics. Limiting it to just one six year term like in Mandela’s South Africa, removing blanket immunity are examples. Actually, even now EP is under the control of Parliament. No vote in Parliament for the budget means no money to run even the EP office! We saw what had happened to CBK under JVP control. She was under JVP probation! Therefore, the real problem is not EP, but the electoral system that allows criminals and crooks to become MPs. EP position can be made democratic and effective with gentleman MPs selected on electorate basis.
    How EP monster helped Sri Lanka
    Why did JRJ create this EP monster? Since 1948 party politics (not the 1947 constitution) and Colombo political families ruined the country. JRJ even tried to join with Mrs. B to create a national government when he was fighting with Dudley. LSSP and CP combine really ruined Mrs. B. The best example of parliament not allowing a PM to operate came when Lake House bribed Managala Samaraweera’s father and 16 others to defeat Mrs. B’s coalition government. Philip Gunawardena also took revenge from Mrs. B by voting against her. Mrs. B lost by one vote. JRJ was talking about a need for an EP kind of system to create a strong executive not controlled like a puppet by MPs. Now we know JRJ abused the power people gave him. Look at the number of constitutional Amendments he made and purpose behind each of them. But MahindaR could not have won the war if there was no EP job. Ven. S cannot say now that the war is over, because the war is not over. And there is the other war, the war against poverty, inequality and the rapid decline in morals and ethics.
    Sarvodaya Ariyaratna’s book
    To think that 17-A can rescue Sri Lanka from the mess that JRJ created for the benefit of the Colombo crowd is like expecting to empty the Parakrama Samudraya using a tea spoon! If the eminent persons, concerned citizens, NGO mudalalis, HR agents, retired CCS officers and retired professors who are back home to roost etc. were really concerned about the rule of law and the separation of powers they should have read the book written by Sarvodaya’s Ariyaratne in 1988, “The Power Pyramid and the Dharmic Cycle.” In chapter 7, pages 116-122, he explained in detail what was/is wrong with the bahubootha system and he identified the problems and a set of solutions to them. Rather than trying to apply lipstick to a pig, the solution is to throw the JRJ system (baby) with the bath water (17-A), and prepare a home-grown constitution with input from village people. Ven. S should request ideas from people first before presenting his and the Christian Plan.
    17-A was a joke
    What about Ven. S wanting to bring back the 17th Amendment. This amendment was a joke. Controlling EP job is one thing. We all want it. But it must be done the right way. All the independent bodies that 17-A wanted to create to encircle EP had the basic corruption germ. Members to these bodies were to be appointed by political parties. I quote below from what I wrote on March 19, 2009 (Lankaweb) about the classic case of UNP nominating Jayadeva Uyangoda (JU) (anti Sinhala Buddhist, former terrorist-Marxist) to the constitutional council.
    “Ironically, JU’s case together with the nomination of the retired Tamil judge who said “Tamil rights were robbed,” damaged the very spirit and purpose of the CC idea. Those who nominated these two persons violated the basic natural justice rule that not only justice be done, but it should so appear. These two with such bias against the views of the President of the country, who is responsible to the people of Sri Lanka, have no legal or moral right to accept membership even if some people with vested interests and hidden agendas nominated them expecting them to be cat’s paws to try to imprison Mahinda Rajapakse.”
    Teach Tamil and Sinhala
    Teaching Sinhala and Tamil to Tamil and Sinhala children will erase all these TNA and American demands and Tamil Nadu demands. The big fuss that Vasudeva Nanayakkara is making about the need to sing the national anthem in two-languages is a joke.
    What Sri Lanka needs
    I wish to draw Ven. S’ attention to the following urgent needs in Sri Lanka today.
    1. Remove 13-A. This is what LLRC meant when it said there are no homelands in Sri Lanka.
    2. But removal 13-A must be linked with empowering people at the village level. This is also what LLRC recommended.
    3. This empowerment of people at the lowest level can be done using GSN units. But RPremadasa increased GSN units from 4,000 to 14,000 to give jobs to UNP catchers. These GSN units must be re-demarcated using language-blind, ecological/geographical boundaries. Once such new units are identified non-political party basis, locally elected 10 member committee takes care of local policy decisions relating to basic human needs. Officers are there to help the GSN committee and not control them. The Divineguma law was a wrong method in this regard. Divineguma law should be modified to allow this kind of non-political party local rule.

    In Sri Lanka there is a triangle of three evil forces: politician-officer-NGO. These operate from village level to the national level. It is by killing this evil triangle that Sri Lanka can come out of the present mess.

    4. Because village level empowerment is based on ecology-based, language-blind smaller administrative units, these can provide the basis for Electorates, Districts and Regions. Thus Sri Lanka will have seven River Basin Regions.
    5. With local level empowerment, there is no harm in having an EP job with necessary other controls.
    6. Colonialism was maintained and continued using humiliation as a strategy. This was more dangerous and more effective than the use of guns, Bibles or bottles (Arrack). Local people, who became black-whites suffered from inferiority complex and became blind followers of the white man. They in turn passed it on to local non-English speaking natives. Anagarika Dharmapala understood this and he had a simple mental therapy method. He asked people to make an effigy of a white man, keep it in front of his house and kick it twice daily calling it para suddha! Those days the unofficial national anthem of village Ceylon was “Danno Budunge” written by John de Silva who was born to Christian parents.
    In April 2009, Gotabhaya Rajapakse gave this humiliation strategy back to white Europens via David Miliband and Bernard Kushner. Now Bodu Bala Sena is forcing Sri Lankans to come out of this white-European game of humiliation (otherwise how can they teach human rights to Buddhists?). Take a simple example. Mahinda Ralapanawa and Wickrama Weerasooriys wrote two books about Buddhist monk and temple control laws enacted by the colonial master. Perhaps, they did not know what Prins Gunasekera wrote about Vihara and Devalagam laws in 1958, which pointed out how British judges ruined Buddhist traditional systems. These Eurocentric experts do not know they are under the spell of humiliation ghost. So are the people who are fooling Buddhist monks like Ven. Sobitha.
    The sooner BBS makes Anagarika Dharmapala method a household practice again (modified) the better for Sri Lanka.
    Cwije7@gmail.com

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      Wijeyawickrama’s Ph D was on “The importance of race and religious hate speech”

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        ha ha ha! he should now be given a Honorary LLD for his continued contribution to the deterioration of race and religious relations.

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    The most important amendment to the constitution should be to make all religions equal and all races equal. No special treatment or mention in the constitution for Buddhism or Sinhala language. Who knows how many more religions will come into our lives in the future. So we must make sure the constitution not only covers the present but also the future.

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      Yes. You are correct. Still Mahayana is not allowed in Sri Lanka. I tend to belive Mahayana than Heenayana.

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    OUR URGENT TASK AND PROBLEM IS NOT CONSTITUTNIOAL REFROM BUT ECONIMIC REFORM.
    WE URGENT REQUIRED THAT THE PATH OF CAPITALIST DVELOPOMENT IN SRI LANKA TO BE SPEED UP.WE ARE AS NATION LAGGING BEHIND ECONOMY FIELD LAST 65 YEARS OF DUE TO LACK OF POLITICAL MISMANAGEMNT OF CAPITALISM IN AN ISLAND.
    WHAT EVER REGIME IN POWER MUST ADDRESS SUSTAINTABLE NATIONAL ECONOMIC PROGRESS IS OUR PRIORITY OF OUR NATIONAL VISION.

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