28 September, 2020

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So You Want Anarchy, Do You?

 By Malinda Seneviratne –

Malinda Seneviratne

The 1978 Constitution is not made for dictators, contrary to an oft-articulated view.  It is rather made to make dictators in that it confers on the executive near dictatorial power.  The objections however have focused more on incumbent than position or constitutional provision.

The constitutional document is of course referred to but mostly to acquire the ‘objective’ tag or as make-up to disguise political preference.  In the main it has been about likes and dislikes.  Virtues of democracy and the need to have it affirmed in word and spirit are trotted out.  It’s part of the political game to appear neutral but political preferences are hard to hide in this day and age.

A good rule of thumb when assessing the democratic worth of constitutions and articles therein is to image a beneficiary whose ability and integrity one questions, someone whose ideological bent and politics one abhors. This is the device I suggested that MPs voting on the 18th Amendment should use.

If we assume for argument’s sake that democracy is the best system of governance, the 1978 Constitution is a body blow to the idea.  If one wants Sri Lanka to be a better democracy, then a complete overhauling of the constitution is called for.  Easier said than done of course for it requires a two-thirds majority which is what is enjoyed by the current set of beneficiaries.  It would be myopic to expect them to vote against their interest. On the other hand those who aspire to obtain the same sweeping executive powers would hardly be interested in voting to prune these very same powers they hope to someday enjoy. This is perhaps why the focus is on person and not post and why the rhetoric seems hollow.

In this context it is natural to think that knocking off the slightest shard off the executive armor is a necessary step in a ‘democratizing’ process.  The error is that what incumbent loses does not materialize as a corresponding loss in constitutional provision.  J.R. Jayewardene was declared a tyrant.  Few were sorry to see him go at the end of his two terms.  When he was replaced, Premadasa inherited the powers as did Wijetunga, Kumaratunga and Rajapaksa after him.  The losses that accrued to the individual on account of error, ignorance and arrogance, they took to grave and retirement. Successors started afresh.

Attacking the President is easy.  Taking issue with position is also easy.  Arguing that the incumbent being ousted is ‘first step’ is hogwash.  Belief that a presidential back-off would amount to dent in constitutional provision is patently naïve.

Today there’s a stand-off of sorts, some would like us to think: Supreme Court vs. Parliament, Judiciary vs. Legislative.   Two process: Impeachment against the Chief Justice and Court Ruling against Parliamentary Select Committee.  Some have called for a change of laws pertaining to impeaching judges of the higher courts.  Some have called for prorogation of Parliament ‘to cool things a bit’.  The ‘callers’ claim it is all about the independence of the judiciary. Some add that it is a democratizing move.  The objection raised by some ministers to moves against the Chief Justice (at least in terms of the impeachment process) have been cheered by the above ‘callers’, notwithstanding the fact that some of these ministers are not exactly ‘people’s representatives’ in that they are in Parliament courtesy the President’s largesse.  Bold of them, yes, but the fact that they don’t have a constituency to speak of should not be forgotten.

More telling is the identity of the callers.  They are not political neutrals.  They are regime-haters and as such their democratizing credentials are suspect.   Whipping up notions of ‘confusion’ and ‘tension’ even as they call for an executive/legislative ‘back-off’ alone shows much humbuggery.

It is not a matter of picking between Mahinda Rajapaksa and Mr/Ms Perfect President.  The choice is not between Rajapaksa and A Better Order in the Foreseeable Future.  The choice is not between Executive Presidency and Westminster System (with or without some adjustment). For such choices, there have to be objective conditions such as severe economic, social, political discontent across the board.  There are people who are not exactly cheering this regime, but neither are they inclined to cheer anarchy.  The courts are not people-friendly, in fact that are places where the masses feel utterly displaced and disoriented.  Lawyers are seen as evil necessities by those who for whatever reason are forced to be in court.  Shirani Bandaranayake is not a Sarath Fonseka in this sense.    Those who try to market her as the figurehead of moves at changing regime and democratizing probably assume she’s naïve, which is of course a possibility that cannot be ruled out.  Worse, they assume that their political records are unknown.  It’s a straw-clutching exercise of the politically dispossessed and displaced privileged class that we have seen before, with Sarath Fonseka and before him Sarath N Silva.  No surprises therefore.

Only those whose lives and lifestyles are insured can wave hand at anarchy.  Such situations are made for blood-letting, but the blood that could flow will not be theirs, but that of ordinary people.  If it is a matter of a Constitutional Dictatorship versus Anarchy where a result in the favor of the latter (unlikely as things stand) spawns yet another Constitutional Dictator, the intelligent and responsible choice would be the former.

*Malinda Seneviratne is the Chief Editor of ‘The Nation and his articles can be found at www.malindawords.blogspot.com .

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    How come this wordsmith is not a regular columnist for the Daily Noise and every one of the rest of the media as well? Goodness knows his propaganda for the Rajapaksa Regime gets wide enough publicity on this website!
    Now he’s down to telling us we have Hobson’s Choice confronting the nation: accepting a “constitutional” dictatorship or anarchy resulting in the blood of innocents being shed.
    There IS another way, you pandankaraya: ridding this country of the band that is running it into the ground and the sycophantic leeches who support it in word and deed! Then, and only then, will there be space for the return of a modicum of decency to Sri Lanka and its people. And that is NOT “pie in the sky” philosophizing as the sycophantic horde that you represent will have us believe.

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      Pls don’t blame Malinda. He is only doing his job like anyone else.

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    It is not the constitution STUPID! MS It is the corrupt POLITICAL CULTURE and MONEY POLITICS and the morons in politics today that is at the root of the problem. What ever happened to principled politics?!

    Politicians these days are incapable of thinking and acting independently and according to their conscience – like Gamini Kirawella who thought he should obey the appeal court summons on the PSC but did no on the instructions of the Knave Ranil Wickramasinghe who harbors the delusion that parliament is ‘supreme”. The corrupt politicians in the morally and intellecturally bankrupt parliament simply follow the orders of the two dictators – Mahinda Rajapakse and Ranil Wickramaisnghe and seem to have given up on democracy and principled engagement with people and peoples power.

    The nearly dead joint opposition and the dead UNP should get out of the morally and intellectually defunct parliament in the Diya-wenna Oya and GO ON THE STREETS to protest the Divineguma Bill and the impeachment of CJ both of which are fundamental violations of the constitution, rather than pretending that the Parliament of goons, fool, criminals and leftist geriatrics is “supreme” as Ranil likes to do.
    THe DiviNeguma Bill should not be passed in Parliament without massive protests on the street by the opposition politicians because it violate financial checks and balances and over sight. It is as serious a violation as the impeachment and must be challenged on the street since the parliament is CRIPPLED and dead – killed by the barbarian Mahinda Rajapakse.
    The joint opposition should revive itself under Premadasa and Karu, boot out Ranil and and go on the streets this week and SPEAK TO THE PEOPLE and educate them on why the Divineguam Bill undermines the peoples right to scrutinize the regimes dirty deals and hold the uneducated morons Basil and Mahinda Rajapassa accountable!

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    Malinda S gives only one option Constitutional Dictatorship against Anarchy. In his rush to defend the President and the system he seems to have forgotten the word Constitutional Democracy or is Democracy a bad word in his dictionary.

    If Democracy is a bad word, then what about human rights, freedom of expression, right to information etc etc. Are we going to compromise on all these issues just because some thugs are holding a gun on the judicial system and we prefer to stand aloof.

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    Oh well, at least he’s being open about the fact that his leader is a dictator now. and some might argue that after the Supreme Court ruling on the 3rd this dictatorship is OBVIOUSLY unconstitutional. haha. these washers of the President’s dirty linen are a joke.

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    The impeachment motion affair against Shirani Bandaranaike has been blown up by anti-government elements and depicted by them as a threat to the independence of the judiciary and anti-democratic. That is not the case. It is an issue personal to Shirani Bandaranaike who the MPs say has lost the moral capacity to hold the high office as Chief Justice of Sri Lanka. She should have fought the motion herself instead of dragging the legal profession and the members of the judiciary into the present confrontation. When JR regime brought a similar motion against Chief Justice Neville Samarakoon there was no such drama or confrontation. He faced up to the PSC with a single lawyer and when he knew it was going to be a losing battle he honorably resigned. The matter ended there. There was no confrontation between the executive and the judiciary or between the legislature and the judiciary. Nobody at that time challenged the constitutionality of the Parliamentary Standing Orders under which he was tried by the PSC.

    In the present case against Shirani Bandaranaike, the anti-government forces with the help of NGO groups that are funded by the Americans are making a big hue and cry that independence of judiciary is threatened and democracy is in danger. The major forces conducting this campaign are the Colombo elite who see the President as anathema to their vested interests. The media is feeding on this hype. These anti-government forces based in Colombo were looking for an issue against Mahinda Rajapakse and his government. Shirani Bandaranaike impeachment motion was a ‘manna’from the heavens. They are using it well and truly to discredit the government in the eyes of the world.

    However, the ordinary Sri Lankans are not moved by this hype by the Colombo elite. In the first place they see the black-coat fraternity as vultures and know very well how these lawyers fleece them. These anti-government forces would have achieved nothing and the ordinary people though saddled with increasing cost of living are not yet prepared to desert the MR regime. Shirani Bandaranaike should know that her position as CJ is untenable. In the end Shirani Bandaranake will be removed as CJ but she has unnecessarily brought this collison between the executive/legislature and judiciary.

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    You can write reams that boil down to nothing, Malinda. Why don’t you say in unambiguous simple terms that the failure to abide by the Superior Court rulings will surely lead the country to a state of anarchy? Interpreting the Constitution comes under the sole jurisdiction of the Supreme Court.Now that the Supreme Court has given the interpretation the Speaker should abide by it. It is a fallacy to say the Parliament is supreme. Nor the Speaker is above the law! The legal position is as simple as that! Why do you to want to go round and round the mulberry bush skirting the vital point?

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    Malinda Seneviratna is the ..

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    Mahinda,

    You have laboured long and hard to produce something that does not make sense to me. You are capable of better fare.

    Dr. Rajasingham. Narendran

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    It’s so funny how the regime and regime laundry washers both have this tendency to blame the everyone and the kitchen sink for their own sins. I heard wimal weerawansa on state media last week saying Shirani B was in a conspiracy to make things difficult for SL in March in the UN. well she didn’t start impeachment proceedings against herself. if there is going to be anarchy dear Malinda the only people to blame for this are the masters you serve who are going to make it okay in a few days for every criminal and wanted person to say its okay to flout court orders and ignore the court summons. you can’t blame the many conspirators allegedly out there for the sins of your GOVERNMENT AND DEAR LEADER
    and of course YOU would prefer a constitutional dictatorship because after all the dictator is your buddy no malli. its the rest of us who have to fear…no doubt like mervyn and the others – the constitutional dictator will always find ways to protect you and your family from the long arm of the state.

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      Ramani:
      You are spot on with your analysis of the Malinda Seneviratnes of this country!

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    What MS say has some truth. We the readers talk about the person not about the position. Person holding the position enjoys the immunity but his executive decisions can be challenged.

    The only problem with elected members of the parliament is that they surrender the freedom of expression to party leader the moment they are elected and thereafter they enter a dark world not being able to identify what is wrong and what is right.

    They do not have to surrender their freedom. There is a precedent SC judgement(Chandrakumar Wijewardena and Mahinda Yapa Abeywardena vs UNP 1987? pl correct me if I am wrong.) that no party constitution can override the freedom of expression guaranteed by the Constitution of the country. It can easily be interpreted that one does not surrender his/her freedom of expression with signing of nomination papers.

    Failure to understand this has led to believing in Law of the Jungle and defending it at all times.

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    What ia anarchy but lawlessness. Do we have law any more regarding anything;murder,rape,fraud,money plundering and laundering–anything at all. Even removel of the chief judge is done illegality. Now the Supreme Court decision itself is ignored. What more anarchy. Mihinda,Basil,Gotabeya represent anarchy. What kind of logic is to say, that having them prevents an achy. We we capable of rational thinking?

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    Leela is going to get married the President soon. :))))

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    WHY DO WE WASTE OUR TIME AND ENERGY ON THE LIKES OF PEOPLE LIKE M.SENEVIRATNE ????

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    Your essay of short writing we cannot uderstand,where you STAND ON ANARCHIST SITUATION IN RULE OF LAW our soil.
    Sri Lanka had been suffering anarchism and its society in lawlessness in political terms long 45 yeras since JVP came into being as terrorist politicial outfit.The south part of island run of gun point politics been replace by Ballot of democracti parliminrty Politics in south by JVP.
    Then Tamil Terrorist of North, several goupes had been domnitaed by under the leadership of LTTE.This was anarchst of society by Rule of Law was under the power of Terrorism until end of war 2009 May. That is brife of Anarchay 45 years in island.
    Any counrty RULE OF LAW under the subject to SOVERGENITY, TERROTIAL INTERGRITY, INDEPANDNECE AND DEMOCACY SOVERTNIRY OF NATION;SRI LANKA IS CONCERN PARLEMENRY SOVERGNITY OF ABOVE RULE OF LAW,ELECTROIAL VERDIT OF SUPEREM POWER DRIVING FORCE THAT PEPOLE ELECATED PARLIMENTY.
    If rule of law overrule -parlimentry sovergenity,such people’s instituation has every RIGHT RECFICITY EARROR OR DAMAGE DONE BY CJ IN RULE OF LAW.The proporsed Imperachment is NOTHING EALS TO RESTORED PRALIMENTRY POWER OF SOVEREGINITY.
    YOUR VERSION OF logic of Dicatorship versus Anarchy wan’t arise!
    Neddless to say your knowlegde of above two words of ” Dicatorship and “Anarchy’ to applay in Rule of Law your have mislead public and misinterpration of Politics and Law of is violated basic RULES accpected politiacl order of Democratic World.Better to learn before you write some essays as Editors in Irresponsible News Peapers in Island.

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    We all know that Malinda..

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