3 December, 2020

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People Should Make A Shadow Constitution

By Harsha Gunasena

Harsha Gunasena

During the last 72 years we had three constitutions and 20 amendments to the last one. A sovereign nation should prepare a constitution acceptable to all citizens in the outset. The two constitutions made by independent Sri Lanka and most of the amendments were skewed towards the wishes of the persons who were in power.

The government has appointed a nine-member Expert Committee to prepare the preliminary draft for a new constitution. The last regime has done a lot in preparation of a new constitution. Their approach was a democratic one and therefore it took a long time to complete. The two leaders of the previous regime did not have a political will to bring it to an end. Initially there was a report of the Public Representations Committee headed by Mr. Lal Wijenayake. Thereafter, the Constitutional Assembly appointed members representing all parties in the Parliament to six sub committees covering the areas of Fundamental Rights, Judiciary, law and Order, Public Finance, Public Service and Centre-Periphery Relations to assist the Steering Committee.

All the reports of the sub committees were published. Based on the Steering Committee deliberations and reports of the sub committees, an expert panel prepared a report to the Steering Committee in the form of a draft constitution and the Steering Committee decided to present the same to the Constitutional Assembly without preparing its own draft. In the appendix of the proposed draft there were alternative proposals by the political parties as well as the certain members of the expert panel.

Neither the government nor the Expert Committee said that this literature would be perused. Therefore, this process would be an extension of the backward Sri Lankan political culture that there is a new start up once a new government is appointed.

Moreover, in the government benches in the Parliament there are number of members who actively participated in those six committees. Some of them headed some of those committees. There were Chief Ministers of Sri Lanka Freedom Party demanded more powers to the Chief Ministers to have a meaningful devolution of power to the Provincial Councils. Some of them are now in the government benches. Also, there are members in the government benches who voted in favour of 17A and 19A which restricted the centralized power. All of them en masse voted in favor of the 20A which broadened the centralized power. The reason was that it was the wish of the President.

Also, the 1972 constitution which was passed by the then government with its 2/3rd majority in the parliament failed to give Tamil the status of an official language although with the prominent contribution of Dr. Colvin R. De Silva. The constitution in 1978  which was passed with its 5/6th majority in the parliament by the then government granted enormous power to the president compared to other two branches of the Democracy although with the contribution of Mr. Mark Fernando who became a renowned justice later. All these happened with the wish of the then leader of the government.

The arbitrary wish of the leader of the government was not reflected in 17A and 19A which were spearheaded by the parties without majority power of the parliament. Quite in contrast the then President was eager to get his powers reduced under 19A

Therefore, the new constitution will be shaped based on the wishes of the President rather than the needs of the country. The basic problem in Sri Lanka is that the power is concentrated in the top in the expense of the bottom and in the centre in the expense of the periphery. If the power can be shifted from top to bottom the problem the South is having with the constitution would be solved and if the power can be shifted from the centre to the periphery the problem the North and East is having with the constitution would be solved. 

The obstacle for this was the demand of a strong leadership arose at the last two elections. It is an obstacle since the problem was grasped at the wrong end. 

In order to have a strong Democracy there should be a strong leader. A strong leader should have a strong vision and a strong convincing power to convince the people and  his/her followers. If the leader wants concentrated constitutional power for that, he or she would not be a strong democratic leader. Dictators want such powers. They want only to order and there should be a bunch of people to implement those orders. The strength of a strong leader should come from within and not from outside.

A strong Democracy would not need a leader with arbitrary constitutional power. The need is to have leader with strong and broad vision with the ability to convey it to the people.

Nelson Mandela was such a person. Once he became the President, he continued to engage the white people not only in building the economy but also in his personal security with the opposition of African National Congress and the people at large. He was able to convince all of them that he was correct. That was strong leadership. 

President Donald Trump is refusing to concede the election defeat. USA is supposed to be a matured Democracy unlike Sri Lanka. None of the Sri Lankan leaders behaved in that manner.   With the reports published at that time the only exception was President Rajapaksa in January 2015. Even in that instance matters were sorted out by the dawn of the following day. President Trump’s behaviour is sheer weakness.

President JR Jayewardene was unable to contain the July 1983 riots with all the presidential powers, undisputed leadership of the governing party, 5/6th legislative power to that party and with undated resignation letters of those MPs. Hence, he was a weak leader. This is contrary to the popular belief of his leadership. He wanted power to safeguard himself and not the people.

Prime Minister Sirimavo Bandaranaike was stronger compared to President Jayewardene. Although she did not have such constitutional powers as him, she took appropriate decisions at appropriate times. All of these leaders have their own pluses and minuses.

There is an opinion that President Gotabaya Rajapaksa is a strong leader. The President has more time to prove that. If he is a strong leader all of us should be happy since he is our President. In his own words he is the President not only of the people who voted for him but also of the people who did not vote him including the people of other ethnic and religious groups although he came to power mainly with Sinhala Buddhist votes. 

Based on the decisions he has taken so far it is felt that he places his belief on constitutional power.

Therefore, it is necessary to have an alternative to the constitution making process since it is more likely that the process would be based on his wishes rather than the interests of the country.

In parallel to the official process there could be a shadow process of making a constitution independent of the leaders of the country and the bunch of yes men at the Parliament. I believe that this draft should include the provisions of recalling the elected representatives in certain instances as in Switzerland and the state of California in USA. In addition to that, the points the politicians are reluctant to include in the constitution which are related to their existence can also be included. Thereafter, the draft constitution can be presented to the political leaders.  This will last for few years.  

There are discussions in the society to this effect. One of those was organized by Rights Now Collective for Democracy using technology. Resource persons were Messrs Jayampathy Wickramaratne, Lal Wijenayake and KW Janaranjana and the discussion was conducted by Mr. Jagath Liyanarachchi. The discussion was started with the issue of how human rights and devolution of power be included in the constitution and by the end of the discussion it was decided to send the proposals to the Expert Committee, publish the same and engage in preparation of a shadow constitution.

If it is materialized it would be the first active public intervention in preparation of a constitution to which all of us can agree.

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Latest comments

  • 10
    1

    I wonder whether the Author is chasing after moon beams.
    How the government acted so far and how the 20A was pushed through hastily, Covid be damned, only a particular attitude prevails.
    So in this context I feel A Shadow Constitution will remain just that, a shadow and no substance.
    The Experts Committee will be so slanted to give in to the wishes of the powers-that-are, that any wishes for a truly people friendly democratic constitution is a distant dream.

    • 4
      2

      “I wonder whether the Author is chasing after moon beams.”
      Not really. This, preparation and convincing, is a long term project. Would go beyond the tenure of this government.

      • 6
        0

        Dear Sir,
        In that it is long term, I am in agreement with regard to the preparation of such a idealistic constitution to which all of us can agree. I really hope we can. But my comment was on the basis of an unlikely outcome in the next even 5 years because our civil society has been rendered moribund and the 20A has reduced that even smaller space for active participation, to the barest minimum.

    • 1
      2

      Dear MyView, and Harsha,
      .
      I’m glad to see you both so alert. I don’t know either of you, that despite Harsha’s identity being known.
      .
      From Harsha’s writings I know him to be a totally sincere man. I wish that there’d be more reading what he writes.

      • 4
        0

        Dear SM
        It was a sincere exchange of views and ideas in a decent manner from the author and self. I respect the Author and his views and I made some comments from MY (point of) View.
        As I said I agree from a long term viewpoint, but have many reservations of any prospect of a truly people friendly democratic constitution considering that constitution making is one thing but becomes a real joke as it has to to go before the House of Jokers and amendments are made there to “screw” it up.
        Even the 19thA lost much of its teeth and value, in this den of ………..!

      • 1
        1

        Dear MyView,
        .
        Of course, you’re being very sincere. It’s just that I was focussing on Harsha.
        .
        Given the fact that there are rogues and “distortioners” all round us, my being frank with you won’t matter too much! Some time ago, Harsha wrote this article:
        .
        https://www.colombotelegraph.com/index.php/ratnajeevan-hoole-a-legend-of-our-times/
        .
        It so happens that I have now got to know Professor Jeevan Hoole reasonably well, his elder brother, Rajan, having been my classmate beginning some 57 years ago. When this article appeared I phoned Jeevan and asked him whether Harsha was a close friend of his. I was astounded when Jeevan said that he didn’t know who Harsha was. The article was fairly accurate, but he said that there was one insignificant detail that was not quite right.
        .
        So, Harsha’s tribute (perhaps somewhat dangerous for him to write) was absolutely genuine and disinterested.

        • 1
          0

          Sinhala Man
          Thank you for your comment

  • 5
    1

    The constitution making in Sri lanka becomes a political playing field for Sinhalese politicians. Assume that 20th amendment to the constitution brought up now is the new constitution, does any one who voted for that amendment know why they supported for this amendment? The fact is 20th amendment is to allow American Citizen Basil Rajapakse to come into parliament and give former American citizen Gotabaya Rajapakse the power to get rid of all the accusation against them on crimes, corruption and to release the murderers and corruptors who were sent to jail by the courts.
    So, now the people should ask those who voted for 17th, 18th, 19th and 20th amendments Why they are supported all of the amendments?

  • 13
    0

    With 5 of the nine member committee being lawyers mostly aligned to the govt. and lawyers usually accepting briefs to further the interest of the client, these govt appointees will peddle only the govt view.

    • 4
      0

      Dear Mr Ferryman,
      .
      I dont think you would oppose me here that the LaWYERS in srilanka are no different to BLUE flies being found on excreta.

      Prima facie evidence were collected for all the high crime allegations deliberately perpetrated by Rajapakshe of all kind, but EASTER SUNDAY disaster was the very reason, bunch of thieves be relected by the very same gallery of people who were misled by local media mafia.

      Why I am saying this is most of them would not do their jobs properly. LAWYERS SHOULD COME OUT OF THEIR LONG SLUMBER.IF AT ALL WANTING TO MAKE REAL PALPABLE CHANGES. That Wijedasa Rajakashes, a MP in also in current parliament, exposed to the nation, if he did his job properly, Gotabaya would now have been in a jail. The very same was the no different with the public statements made by former CJ, Sarath N Silva regarding Mahinda Rajapakshe, the most abusive man in politics in entire south asian region.
      :

  • 11
    1

    Gota is not a strong leader at all. It was just a false persona projected by Sinhala Alt-Right and the Buddhist hierarchy to reassert their dominance after the failed attempt by Yahapalanaya to make the political process more democratic by being inclusive of the minority communities. He is so terrified of the long arm of the law because of his past and potential future crimes, he has barricaded himself with 20A. However, he hasn’t taken a single step yet exercising real leadership in dealing with the unprecedented crisis faced by the country today. All what he’s doing is carrying out the demands of his racist backers and criminal powerbrokers and backroom dealmakers like an obedient pet.

    • 7
      1

      Dear Ajay:
      The author effectively failed to define the characteristics that qualify someone as a “strong leader” of a country and has used the word “strong” in a befuddled wishy-washy way in his camouflaged attempt to glorify Gotabaya’s leadership to the extent he could stretch it!

      Anyone who understood Prez Gotabaya’s words and tone of his speech at his swearing-in ceremony knew it wasn’t a message of peace and unity, but author wants us to believe that it was.

      Gotabaya’s actions over the year since his presidency have already proven what you have stated Ajay. But the author remiss.

      Prez Gotabaya was happy to highlight the divisiveness when he stated “The main message of the election is that it was the Sinhala majority vote that allowed me to win the presidency,”.

      Gotabaya’s election pledge to exonerate the military personnel accused of abductions, extortion and killings during Mahinda Rajapaksa’s time in power must be the morality that the author sees fitting a “strong” leader.

      • 8
        1

        Another somewhat debatable statement is his assertion :
        “President Donald Trump is refusing to concede the election defeat. USA is supposed to be a matured Democracy unlike Sri Lanka. None of the Sri Lankan leaders behaved in that manner.”
        He has forgotten the Rotten Ranil, defeated in every sense. Even Kattadiya’s holding incense will not drive him away as UNP Leader .
        At least Trump had 73,698,000 votes – Ranil lost his seat very very badly and took the UNP to rock bottom.

        • 3
          0

          What I said was related to national level and not at party level.

          • 3
            0

            Dear Sir,
            Your Point conceded. Regret context misunderstood.
            Except that I considered RR as a Sri Lankan ” leader ” (of sorts) having been our PM so many times.

      • 1
        2

        I have given various examples for a “strong leader”. I did not say that the President is a strong leader. I said he has more time to prove it.
        I have mentioned what President has said at the first speech.

        I have sent a slightly varied version of the same article to DailyFT.
        http://www.ft.lk/columns/Preparation-of-a-shadow-constitution/4-709189
        Following is the paragraph they have highlighted.
        “Based on the decisions he has taken so far it is felt that he places his belief on constitutional power. Therefore, it is necessary to have an alternative to the constitution making process since it is more likely that the process would be based on his wishes rather than the interests of the country.”
        What you see is a totally different picture.

        • 2
          0

          Mr.Gunasena;
          Above appraisal considered your accolades to Gotabaya in CT article “The_Beginning_of_the_End” (29-Sep-2020);
          “If the President wants to continue his down to earth, good, executive work of directing, guiding, and motivating the public staff,………., he can do it with the current powers.”
          Here you semantically disowned your opinion of Gotabaya’s leadership to state “There is an opinion that President Gotabaya Rajapaksa is a strong leader.”

          In “Different_Signals_Given_By_The_Autocratic_Power_Which_Were_Perceived_As_Contradictory” (24-Oct-2020), you stated;
          “He also said that he would be the President of all who voted for him as well as who voted against him. However, President was giving strong signals that he would listen to the advice of Maha Sangha.”
          Yet here, you favourably stated, “… he is the President not only of the people who voted for him but also of the people who did not vote him…. although he came to power mainly with Sinhala Buddhist votes.”. No mention of Gotabaya’s overriding-allegiance to Maha-Sangha, but preaching, “If he is a strong leader all of us should be happy since he is our President.”
          You purport that being a President to even those who didn’t vote for him as ‘optional’ and assumed it meant he would be ‘good’ to them.

  • 6
    0

    Yesterday (20th Nov.) the President addressing the Nation said: ” We have removed the 19A and brought in 20A to correct some of the obstacles. But that is not enough. I have appointed a Committee to draft a “New Constitution” that will remove all obstacles.” Please note the words “THAT IS NOT ENOUGH”. Wasn’t that “MESSAGE” loud and clear? So is there any “NECESSASITY” or “USE” to call for “PEOPLE TO MAKE A SHADOW CONSTITUTION”? In my opinion, it would be a WASTE of time.

  • 3
    0

    ‘’ The need is to have leader with strong and broad vision with the ability to convey it to the people.’’
    A leader should be able appoint talented people to various posts and not giving it to is close friends and relatives.
    He /She should be willing to hear the constructive Criticism and should not be above the Justices and the Parliament.
    —Should not be above the Law before, during and post President job

    • 7
      0

      Along with vision and ability to convey, he must have strong Moral Convictions and respect to the Law. Then ALL decent people, majority and minority will rally around.
      Releasing convicts found guilty by the Law, is immoral and total disregard of the Law.
      That erodes Leadership.

  • 6
    1

    The need of the hour is not a new constitution but to get rid of the ruling mafia by whatever means. The end justifies the means.

  • 2
    0

    Yes we need a new constitution. Leave the clergy or the religious sympathizers out of it. They caused the present cursed downfall.

  • 0
    2

    Dear Harsha

    Are we reinventing the wheel here regard to election process and the right to rewrite the constitution as per the manifesto pledges and the current approval that exist (I am sure we are challenging that too in the courts as we speak??)?? are you worried you will not get a Constitution you do not get to review and to do some amazing intellectual discussion in CT for the next 4 years??

    1977 and 1983 riots were manmade FP/TULF architect events begging for some idetos/cowards to give them legality to continue their drama as they were being systematically disposed by Tamils since 1970 and am sure you know how they clawed their way back…”Ratha Pottu Mafia Killings Fields in Jaffna 1970-1977-1981 a Tamil crime on Tamil”??

    Nothing to do with Presidential powers but it was let loose on the innocent for the blood thirsty deeds made by the FP/TULF since 1970…??? why could not the GOSL direct the anger to the doorstep of the FP/TULF scums who were openly getting their opponents killed in Jaffna “once and forall” was the only failure off the Presidential powers???

    They can do something this time around that is to remove language and religious parties from our Nation for ever and a National Security Act the same they always had in Malaysia ….would have saved our Nation all the trouble a long time ago.

    • 0
      2

      My home was stoned/fences set on fire/my father being shot at all the time/abuse/threads/selling the children to foreign lands/mis guiding them to silence all opposition…..is the same story for all those whop stood unto the FP/TULF bully/criminals.

      So why did not our GOSL sent bus load of angry mobs to the homes of these scums?? the Nations misery would have been solved once and for all…..in 1977…..never would have had 1983? no innocent Tamils would have died too???? Not too late.

      • 0
        2

        If you make a shadow constitution with the above criminals then you might as well ask all the Sri Lankans to leave their land for good so you can divide and share as required?? you just have to accept it will be undemocratic basis and dictate terms accordingly………….under insurgency…JVP/FP/TULF/Muslim armed men….sure we need to have bombs and guns blazing from all corners is more fun I guess?? just incase we did not have enough for the past 50 years???

        You are asking for the democracy to be overthrown with your alternative facts and justifications?? this is how FP operated in Jaffna where did the absolute killings using our children and got elected for a democratic process and got paid too??

        • 1
          4

          This is why we needed 20a and a GOSL backed up by the military so the Sri Lankan “standard operating procedure” of undermining everything to do with following a system will not continue????

          It was the lawyers who were politicians orchestrated the killing of their opponents of FP/TULF should give you good feel of our oath and interest in justice as a starter?? good luck Harsha.

          • 1
            1

            Thank you

  • 2
    1

    No politician in Sri lanka from any party is honest. Every body with limited knowledge and greedy for power,without any sympathy towards the voters who voted them to power or other wise ,interested only in making money, enjoy the plums of office and moreover, to stay in power or keep power within their families for ever. This phenomenon commenced from from Senanayakes , Bandas, Rajapaksas and may be followed for many more generations. Constitutional amendments are made for these purpose only by these politicians and thereby innocent citizens are being fooled in the name of democracy.

    • 2
      2

      Dear Pon Lanka,
      .
      I know that it looks like what you say. However, there’s a solution. We need more honest people being active in politics, and we have to appreciate the sincere. Like the guy who ate raw fish!
      .
      We must learn to respond even to the unconventional.

    • 4
      0

      Not only the politicians but also the general public are not honest. That is the root cause of the problem.

      • 6
        0

        “That is the root cause of the problem.”
        Well, an honest politician is a rare breed if not extinct. But in the general public, there are a reasonable amount of honest persons.
        This same feeling of not having enough honest persons, was what I had in mind when I mentioned about the futility of making a shadow constitution. It would indeed be a miracle if it can be pushed through, ever. However let us try.

      • 0
        0

        Mr Gunasena,

        There is a saying – yakage haetiya thamayi wimanya goda naegenne, the palace is made according to the devil’ wishes.

        We are not as we are made to believe. Self proclaimation and self gradulations would not bring us an inch of move fowards.
        :

  • 0
    2

    Dear Harsha

    When the children were taken away in batches from Jaffna 99% of the parents did not know what happened to their children. They only learnt things later.

    Ask the TNA in the parliament to make statements as to their actions on the missing children then / their reporting of the missing to the police / demanding assistance from there UN for help on foreign sponsored terrorism??

    Park the mob outside the parliament and ensure the Nation has a response for all the death ever since please. Ensure no one will leave the land too.

    • 2
      0

      Dear Venugopal,
      .
      PART ONE

      .
      I know that you are an independent-minded man who doesn’t like any political party that didn’t actively oppose the LTTE. However, please ask yourself whether they had any choice but to acquiesce. I refuse to label such acquiescence as “active support”. I know that some Sinhalese say that.
      .
      Perhaps you actively opposed the LTTE. Thank you SINCERELY.
      .
      However, you must understand that there seems to be credibility in some of the accusations of War Crimes being perpetrated by the armed forces. I am not in a position to assess such allegations.

    • 2
      0

      PART TWO
      .
      So, you see, if even I take a neutral position on all this, whilst you keep attacking all the Northern Political Parties that receive support from the people up there, you are going much too far.
      .

      The names of those Parties having “Tamil” or “Muslim” in them doesn’t mean anything in the context of “Sri Lanka” being equated with “Sinhala”. I’m not a racist. I don’t know Tamil. To properly call myself a Sri Lankan, I think that I must be able to use both Sinhalese and Tamil. English is irrelevant, but is useful – and let me confess it gives me “status”. If I use such status to boost myself, then I’m doing something immoral.
      .
      Even I begin to see you as being a supporter of the current military government. Yes, that is what we already have. The fact that a person like me can write this today, doesn’t mean that I will be able to write this tomorrow.
      .
      Please don’t betray the entire country to those wearing jack-boots.

      • 1
        2

        Dear SM

        Thank you. I am a very proud Sri Lankan and never subscribe to any Ghetto Akers…Tamil/Muslim/Sinhala.

        I am a hard core opponent of the FP/TULF who is responsible for the destruction of my Country. All the armed Tamil groups are created by this Mafia for their needs to silence the Tamils and then to take the war to the Sinhalese…some did and others saved by the GOSL.

        I do not support anyone committing any crime on others that included crimes by our armed forces too.

        The reason I am ok with JVP now is because this has now become a National party in a democracy unlike the TNA and Muslim parties…..wasting nations time to move forward and celebrate life for a change….laying foundation for the future generations etc.

        Even in the GOSL I have no favourites but look for strong leaders with military backing to lay some ground rules so we will not break them in the future ever…ever.

        • 1
          2

          Dear SM

          “So, you see, if even I take a neutral position on all this, whilst you keep attacking all the Northern Political Parties that receive support from the people up there, you are going much too far.”

          This was never your call to define how far is far is it not??? are you dictating life to me in my own land as the FP/TULF thugs did to my people???

  • 3
    0

    Dear Mr. Gunasena:
    Appreciate you engaging with the commenters here, and above all, the invaluable work that you do.

    It may seem like an impossible task to arrive at a shadow constitution that will have overwhelming consensus in our divisive nation; nonetheless, this novel endeavour of assembling a shadow constitution by the people has great value even just as an educational exercise as well as a lesson in citizenship. Perhaps this shadow constitution building process has an inherent lobbying component to influence the masses and instil values of a true democracy.

    • 0
      2

      Dear S

      Great point and my points for shadow constitution as follows

      (1) Remove all Religious and Language parties from the land/ban/illegal. Only parties that will be allowed to play politics will be the parties with National Policies who can field candidates throughout the land.

      (2) Compulsory Military service for all/Compulsory coast guard service around the Nation.

      (3) A Nation Security Act that will make any “racists” / “casts” from North to South and East to West disappear and no where to be seen thereafter.

      (4) Should have a way of criminals/perpetrators account themselves for all their crimes to their victims…………Truth and Reconciliation… (1) JVP (2) FP/TULF and their vigilantes/killers (namely all the armed groups) (3) Indian sponsors (4) GOSL actions that could boarder braking the law of the land….all need to face their victimes since 1970. Not the uN version of selective justice to suite their needs…itself is the worst form of injustice…UN should explain their part to the Citizens of Sri Lanka in the entire time period since 1970 to 2009.

      (5) MP’s and all other elected Parliamentary and LG entities job scope to be officially publisehd and kept as a live documents with revision numbers so they can be updated as needed over time for the planning and deliverables based on the scope/action list.

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