24 November, 2020

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Proposed Constitution Will Enhance Existing Lawlessness

By Basil Fernando

Basil Fernando

Why is there a need for a constitutional change? Is it to make the already bad situation worse? Or is it to undo, the state of disorder brought about by the 1978 constitution.

Judging by the passing of the 20th Amendment to the constitution, it is clear that the proposed constitution is not for changing the course of the 1978 constitution. It is in fact an attempt to make things even worse from the point of the view of the governance and law and order. It will improve upon the power of the executive to rule without any regard to law. Proposed Constitution will follow the model of 1978 Constitution and will go further in closing down all doors to any legitimate expression of public concerns.

All though public proposals regarding constitutional changes has been called for the model. Structure and the aims of the proposed constitution were well determined quite ahead of time.

What could be worse than what is there now, brought about by the 1978 constitution?

Here are some answers to that question:

1. The entire bureaucracy working in various departments were greatly weakened by the 1978 constitution. All public institutions have lost their independence to act and therefore the also the possibility of acting with integrity for the benefit of the people. Instead everywhere there is paralysis in every public institution. This will become even worse. The constitutional model recognizes only one person as a subject that has right to act: Everyone else has only a passive role, which is to carryout orders. All officers, at every level are expected to be passive. An officer that has no active role, has also no responsibility except the to obey expressly given orders. To take initiative for better performance of duties of office would thus be an offence, as only duty bearer is the executive president. The only person who could be held responsible is also the executive president. As he is above the law, the idea of responsibility and accountability become meaningless words. Further very idea of acting according to one’s conscience itself becomes irrelevant. Without freedom to act, there can be no duty to act, according to one’s reason or conscience.

2. Corruption has never been worse than it is now. This is a direct result of the 1978 constitution which paved the way for unlimited corruption in every sphere of society. Unlimited power of the executive and unlimited corruption were inseparable Officers who are reduced to play passive role, learn to find ways to use their office and uniforms foe self-enrichment. They know that due to the very nature of the office created by this constitutional model, the top duty to bearer, has no eyes to see what they do and no arms to act against them. To have many officers, who know that they can benefit from the general state of lawlessness is one of the grave dangers that unfortunate nations have to put up with.

2. The lawlessness has become the prevailing situation in every aspect of life. On this there is no controversy. All the presidents, prime ministers, all opinion makers and all citizens have repeatedly talked about Sri Lanka having become a lawless place. Of course much of the pain of that situation is experienced by the people and the people have so much understood the fact that law will not provide protection to them. They have adjusted their life in order to survive within a highly lawless situation. For this they have to make many adjustments and compromises among which the most prominent is to silently endure the assaults on their humanity, to forget about their own right even in the face of very grave injustices. That the demand for justice could lead to something worse than the injustice they have already suffered, is a common perception.

When the three above mentioned factors are put together, that is weakening of the public institutions, increase of in fact overwhelming levels of corruption and the almost complete lawlessness, that explains every other thing that is happening in the country.

One of those other things is the ever increasing levels of crime. A murder is being considered not as a shocking social event but as a very normal affair about which nothing can be done except to take all the possible precautions by oneself to protect oneself. The police as the public institution responsible for the prevention of a crime and thereby protecting among other things, the lives of people by dealing with serious crimes such as murder, rape, child abuse and of course even more graver crimes such as complete robbing of national resources is powerless, There has been for quite some time a clear system failure. Within the policing system the weakest link is the criminal investigation section. This is not merely due to absence of adequate number of trained and competent investigators but more due to politicization of the criminal investigation system. It does not allow even the best of the investigators to do their jobs in the manner that is required by their profession. Loyalty to political superiors has become much more important than obedience to their professional superiors. Yesterday’s investigators, today live in fear of threats to their lives from the suspects against whom they previously conducted investigations.

The authority of high ranking police officers over others has so much diminished that giving of orders often does not lead to any kind of positive result. Thus, the structure of the command responsibility has suffered gravely.

The same applies to other important institutions for example, like the Attorney General’s department which has the task of ensuring that the criminals are competently prosecuted and the innocent are protected. There are ever increasing complaints of fabrication of charges and  attempts to weaken the processes that lead to a fair trial even in cases where after competent investigations and by the scrutiny of the Attorney General’s department, it has been felt that there was adequate evidence to prosecute the offenders. The central theme that has developed is how to exonerate persons who are politically loyal to some persons from criminal liability about crimes that the investigators claim they have adequate grounds to prosecute. A Sinhala verse, exhibited in a banner placed in front of Colombo’s public library some time back, expresses public perception about the once highly respected institution:

“Aiyo Attorney General, Aiyo Attorney General

Criminals come and rape young girls

And murder people

Rob and suppress the law

Why should we have a Lord of The Law (neethi-pathi),

When there is no law in the land.

On the other hand, the same methodologies are applied in order to cook up whatever stories in order to arrest, detain and otherwise harass people who are considered to deserve such treatment for political reasons.

What makes it much more terrible are the extrajudicial killings. The criminals who have been arrested legally are, later found dead allegedly due to accidents while in custody.

1978 Constitution and the Proposed Constitution

Proposed constitution will complete the process started by 1978 constitution – Public institutions will be mere phantoms, all gates to corruption will be opened and lawlessness will become the norm. Social Disorder will be treated as Social Order. Illegality will be treated as legality.

Justice said, Hans Keelson is based on a system of values agreed upon by the people. Sri Lanka’s proposed constitution will have no room for justice. It will continue to be based on counter values as 1978 constitution did, but now, in a more perfected form. It will replace social order with social disorder. It will negative affect every aspect of life and thereby will have an un-civilizing impact on the nation.

Under such circumstances, sense and non-sense, right and wrong and sanity and insanity will be hard to distinguish.

Murder of persons under the custody of state institutions will be justified as heroic acts meant to save the nation and community, investigators who exonerate criminals and file fake prosecutions will be rewards, those who expose corruption will have to find places to hide, family members who complain about abductions for ransom and disappearances s will themselves face dangers. In short all attempts to pursue anything earnestly will turn into tragi-comic dramas.

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Latest comments

  • 15
    1

    Yes a lot of gloom and may be, we are doomed.
    But in the remotest possibility, can power be used for the benefit of the country and its people. Odds are very much against it, going by the recent past when an appointment was given to a former CJ, as an Envoy to the UN no less, and who by the usual standards of conduct expected of that high office of CJ, debased it and brought disgrace to the entire judiciary. Can nepotism sink lower? However let us live in hope, for want of an alternative for the time being.
    On the flip side of the situation, sensing the lethargy of the public to any worthwhile counter action, and the poor showing of the opposition and frailty of some MPs who crossed over for a mess of pottage, can the Author or anyone give any overall concrete proposals to counter the steamroller bearing down on us.
    I am at wits’ end.

    • 9
      3

      This is good old srilanka, that is being ruled by Myths and muscles of the Rajapkashe family. Almost every adherent of BUDDHAGAMA as practised in accordance with the guidlines marked in Mahawanse, yet today would believe, that not MAMA GLANDS but HUMAN BLOOD would turn out to “human milk” .. as anyonew who would know just school biology, would agree ” not human blood” but mama glands per se produce human milk… it is also the case with COW milk or that of other mamalians.
      :
      People gave RAJAPKASHE a mandate to do whatever they think is right leaving norms aside. So Gotler – today MOST KNOWN > SINGLISH< reader to the nation —-let ruin the nation.

      Those decent leaders, that gave the image to the country – would wakeup from their burial grounds, if they would be aware, to what level the nation has been thrown by Medamulana rascals today.
      :
      With few more days to go, their other BROTHER, Most known 10%, an american citizen would be introduced by incumbent CHILD-Politician GOTABAYA as would not hurt to the voters that returned them in to power. https://www.youtube.com/watch?v=_3hLU9Yt09Y

      • 3
        0

        If Basil`s name had not been included in the National List M.PPof the various Parties,
        how could he become an M.P.

        The relevant Rules will be amended with retrospective effect. Simple.

  • 8
    6

    People gave four and half years to so called yahapalanaya to get it so called ‘right’ as the author of this article professing. So what happened? Went in reversed gear without even applying any brakes. Now let’s go opposite and see whether it works. Even now, all so called professionals are sleeping. Without writing this rubbish, why not article writer in CT get together and write a good Constitutional Document and present to public for debate and apply pressure to politicians to adopt. Without doing that, this is a waste of ink and paper and in digital terms a few Megabytes. Politicians are reactive to public demand. Use that intelligently folks.

    • 10
      3

      Atu,
      if you are honest to you, you and I (as an outsider) know it very well that Rajapakshe rascals and their underground men never let elected govt to continue. Their power greedy tactics, never allowed Moda Sirisena led groups to do the job until he was caught by their tricks with that FAKE 52 day lasted govt.. remember ? People in this country would not think twice, if their rice packets or a glass of arrak are supplied, they would even go for contract killings.
      Looking back as a person with some sanity, looking at the developement of this god punished nation, first 2 years of GG government was 1000 times better than the incumbent all incapable tyranny under Gotler. What have they achieved as of today other than ballige puthas and their powers within the family got empowered on and on.

    • 9
      2

      Atu,

      You have a very good point. Today people have no idea what is good for the country, its future generation, its future development, its future unity. Rajapakse family used the opportunity failed by both Srisena (SLFP) and Ranil (UNP) and the opportunistic politicians who has no worries about the future. Rajapakse family carefully planned and mesmerised Sinhala Buddhists that they are going to make SriLanka a nation for Buddhist only Sinhala and only they can safe Buddhists. Their real focus is creating a kingdom controlled by them.
      It is up to the Sinhalese professionals, Civil society and even The Maha Sangha to realise the dangers of such fake patriotism for future Sri Lanka. This is the only country for Sinhalese, not for Buddhists. Sinhalese need to be friendly to others who lives in this island for many many years. They live in this country for more than 1000 years. We need to be friendly with neighbours who are more powerful than us. If there is no rule of law and judiciary what is the guarantee if the rulers change their mind. People should hold their rights to accept or reject their political leaders whether it is Rajapakse family or Senanayake family.

      • 2
        1

        This comment was removed by a moderator because it didn’t abide by our Comment policy.

        For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2

      • 0
        1

        Ajith,
        “Sinhalese need to be friendly to others who lives in this island for many many years”.

        Sinhalayo were friendly to others who live in this country but were the others friendly to Sinhalayo? Is terrorizing Sinhalayo a friendly gesture?

        • 4
          0

          Eagle Eye,
          Think about terrorising Tamils in 1958, 1962,1977, and 1983 and come to a definition for terrorising. Can you? Tell me the truth. Burning innocent Tamil neighbours is a friendly act?

    • 4
      0

      What a BS country, anything and everything can be painted as only infavour of Rajakshes.
      :
      CENTRAL BANK BOND SCAM was not new to Yahapalanaya, but it was first reported in MR regime under that WANDIBATTAYA Ajith Cabral. But public perception was made as if it was introduced by Ranil Wickramasinghe.
      :
      CBK introduced Federal Plan, so she was brutally attacked as if her politics was the worst.
      :
      However, the men who evidently did lot of harm, but DID their all tricks to prove that they to be the LIBERATORs of the country, …. … are still in power, though their records on HIGH crimes are unbreakable by any other politicians. ::::
      .
      They abuse TODAY srilanka as if it is their private property.
      :

  • 1
    9

    Dear Basil

    Thank you

    “Why is there a need for a constitutional change? Is it to make the already bad situation worse? Or is it to undo, the state of disorder brought about by the 1978 constitution?.”

    Both these questions are incorrect to start with??

    As a Jaffna Tamil I think the 1978 was all about

    (1)managing the 1977 Separate state blunder and the JVP to come?

    (2) Now at the expense of of Nation becoming a human resources supply chain as toilet washers around the world + few hundred thousand life’s/arms/limbs lost should make any nation think about her future??

    hence the current need for the new constitution and the 20A to be there so we see to it implemented/engrained in the Nation for good…a base line set of revised rules/code of conduct for the future of a healthy Nation based on the lessons learned and the ever so changing world around us period. .

  • 13
    1

    Basil Fernando,

    I don’t think Sri Lanka has produced many people like you to think about the well being of the country including all its communities and citizens.

    Gota thinks he knows how to build a nation out of Sri Lanka, but I don’ think has the ability to do it. It is not torturing, making people disappear, killing, and plundering the state coffers, it is entirely different matter.

    If anybody thinks he or she can replicate Singapore with the current authoritarian laws, he or she is mistaken because none of the leaders in the government has the dedication and vision that late Lee Kwan Yew had.

    It is a pity that Sri Lanka has not produced capable Sinhalese leaders to unite the people and build a peaceful, progressive and prosperous country.

    • 1
      14

      Thiru,
      “It is not torturing, making people disappear, killing, and plundering the state coffers, it is entirely different matter.”

      President Gotabhaya Rajapakshe did not torture, made people disappear, kill or plunder the state coffers. Dumbos who are suffering from inferiority complex because of the humiliating defeat they faced come out with these ridiculous allegations.
      The problem in Sri Lanka was not Sinhala leaders but racist separatist Malabar Vellala Demala politicians who got swollen heads because of the privileged status they got by scratching the back of Brits. They are responsible for dragging Tamils all the way to Nandikadal.

      • 4
        0

        EE, he did that for money. He stopped abducting people for ransom only after he got hold of Avant Garde which gave him sufficient money. More than 3 major generals from SL army have already testified in the US about this. President Biden and VP Harris will take a tough stand on these crooks. GR tied SL to US defence pacts in 2007. But under democrats USA will want the pacts not the baggage it bring (war criminals). USA knows how to separate wheat from chaff. Wheat goes to the store, chaff goes to dump. In 2015 USA under democrats did regime change in SL. Remember? Your beloved Americans in SL are on borrowed times from their motherland – USA.

    • 3
      0

      Dear Thiru:
      Echoing your thoughts;
      It has been flabbergasting to see many hoisting Gotabaya as the best SL president ever while witnessing his incompetency and deception pretty much at every turn.

      Gotabaya has been one of biggest beneficiaries of nepotism in this country founded on his appointment as the defence secretary, thanks to brother Mahinda.

      I am of the impression that most who voted in Prez Gotabaya have knowingly granted him impunity for all the “torturing, making people disappear, killing, and plundering the state coffers” because ultimately Gota & co are the best to serve their agenda which will require “torturing, making people disappear, killing” etc.

      Lee Kuan Yew became Singapore’s PM when he was just 36 years old. Mahinda Rajapaksa never even came close to that calibre of leadership in his long tenure. Gota, in his 70’s, isn’t going to replicate an ounce of LKY’s greatness but more or less Donald Trump‘s ego.

      No LKY calibre leadership in sight, perhaps not for the next several generations. Equality, unity, peace, and harmony all on the chopping block.

  • 5
    0

    The present Constitution brought in 1978 was nothing but based to cater to the “Personal Needs” (glorification, egocentric, cater to fulfill the needs of the clan and cohorts and so on). The subsequent amendments excepting a few were all to cater to such personal needs, but not at all in the interests of the country and the people. Of all the amendments so far introduced, the worst is the recently passed “20A”. Did you see the debate proceedings of the “20A” in the Legislature? It would be interesting to read the Hanzaard reporting of the contributions made by the self-styled “Professors” “Intellectuals” sitting “Ministers” of the Government and the “Opposition”. In my opinion, the only valuable presentation,( with the limited time allotted) was made by NPP MP Anura Kumara Dissanayake. But what was the response? It was all the way “Booings” from the Government MPs and no considerations for the “Dangers” that the “20A” presented. That was indicative of the “STORM” to come. Already the forwarning signs are showing, in the way the Government has set about drafting the “New Constitution” in leaving it in the hands of a “Personally” selected “Team”. So be prepared to face the “Storm”, but I am certain that it is going to be a “Tsunami” to destroy the pillars of “Democracy” and establish a “Dynastic Rule”.

  • 2
    11

    Basil Fernando,
    We haven’t got even a draft Constitution. How the hell you say that ‘Proposed Constitution Will Enhance Existing Lawlessness’? Are you an ‘Anjananeli Karaya?

    • 2
      0

      EE, look at what GR did. Everything for the power and wealth of his family to hell with the country. When will you start loving Sri Lanka instead of Americans?

    • 5
      0

      Possibly the Author was guided by the President’s statement to the Parliament ;
      In his inaugural address to Parliament on August 20.
      President Gotabaya Rajapaksa announced that Sri Lanka would DRAFT A NEW Constitution, jettisoning the 19th Amendment that sought to strengthen Parliament and independent institutions, besides curbing presidential powers.
      So 20A was only a start in that direction and surely that speech shows direction of weakening Parliament, Independent Institutions and increased Presidential powers.

      • 1
        0

        So the idea was weakening anything done by 19A which strengthened Parliament and independent institutions, besides curbing presidential powers.

  • 1
    0

    “When the three above mentioned factors are put together, that is weakening of the public institutions, increase of in fact overwhelming levels of corruption and the almost complete lawlessness, that explains every other thing that is happening in the country.”

  • 4
    0

    My Comment continued……On reading my comment, several persons known to me asked varying questions on the relevance of referring to “Storm” and “Tsunami” in Constitution-making. I will now request the readers to read a report by “Financial Times” titled “Communist Party of China and SLPP hold a virtual advance seminar on Governance” (report dated 6th November 2020). This “Seminar” was held, on 5th Nov. between the “Communist Party” of China and the “SLPP” the Governing party of Sri Lanka, attended by the “Top” leadership of both the parties and a “Selected” number from both sides. Mind you the most relevant and important fact that we must not overlook is the “SUBJECT MATTER” of the seminar. That is one and the only subject of “GOVERNANCE”. What do we have to gather from these types of “SEMINARS” on Governance? It was not to “Advise” from Sri Lanka to China. It was for the ONLY purpose of hearing and obtaining “ADVICE” from China to Sri Lanka and well-timed to FIT in with drafting a “New Constitution”. That is why I said, this “Seminar” is the “STORM” and what follows could be the “TSUNAMI”.

  • 5
    1

    In a very negative way, in an effeminate but bitchy style , the person who has damaged the country the most is Ranil Wickramasinghe and by connection the UNP Working committee.

    In a two party system, the alternative party must keep providing good opposition and also another option. What Ranil did was to subvert the working committee, made sure it had no life and spirit, just boosted up a bunch of nonplussed failures as political wizards(working committee) and through them continued as leader of the UNP for 30 plus years.

    As an individual and leader RW is an empty shell, a man living on a pretence of learning and honesty. Both these pretences are now open.

    So , compared to the alternative Ranil and his obviously dishonest UNP, for the people the Rajapakse appear the better of two evils. At least the rajapakses dont have ranil’s meaningless arrogance, they do some work and also are able to take on terrorists etc.

    Ranils monopoly of the UNP, and his intellectual dishonesty( real dishonesty too) has pushed the people to the Rajapakse camp.

    • 4
      0

      I agree that your effeminate but bitchy style is forthright and has merit. RW was and still is the R’s mole. He has blocked Sajith, he has blocked an MP being appointed an national list and is the real cause for the Yahapalanaya downfall with his Bond scam through Mahendran.
      Manipulator to the core and for what – no progeny, no one near and dear, except inflated ego. So sad for SL.

  • 3
    0

    Lets give the benefit of the doubt to the batsman, like in the good old days where technology did not decide the LBW (leg before wicket). Lets assume that Gota has very good intentions of developing the country, eliminating (!) corruption and vastly improving productivity. Can he do it? Look at everyone around him. Old faces who are veterans of corruption. Will they allow a “Johnnie Come Lately” to take away all the privileges of stealing, rorting and nepotism? No. And that is precisely why, even with a “One man show” its an impossible task.

    • 3
      0

      Mr.LP
      Yes whatever the intention of Gota, he has been dealt a hand of cards of no value – the Parliament.
      That is why he wanted full power and the right to dismiss parliament after one year.

  • 1
    0

    “They have adjusted their life in order to survive within a highly lawless situation. For this they have to make many adjustments and compromises among which the most prominent is to silently endure the assaults on their humanity, to forget about their own right even in the face of very grave injustices. That the demand for justice could lead to something worse than the injustice they have already suffered, is a common perception.”

    This was clear to the Tamils when 40,000 innocent Tamil civilians were murdered by the armed forces, this is clear to the Muslims and Christians now who have to watch as the bodies of citizens from their community who pass away/suspected due to covid 19 are forcibly ceased and cremated against all Islamic/Christian principles and against WHO guidelines by educated racists (health officials/doctors) citing pseudo science/false claims about covid being harmful to the water cycle.

    Soon it will be the turn of the buddhist/singhalese who dont bow down to the government and it’s religious extremist supporters.

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