By Suren Perera –

Suren Perera

Sri Lanka’s present constitution (the 1978 constitution), defines Sri Lanka as a democratic and socialist state, as distinctly unitary, and as a state governed by a semi-presidential system, i.e. a mixture of a presidential and a parliamentary system. According to the Article 3 of the 1978 constitution, in the Republic of Sri Lanka, sovereignty is with the people and is inalienable. And, sovereignty includes the ‘powers of government’, fundamental rights and franchise.

However, people do not directly exercise ‘powers of government’ in Sri Lanka. Article 4 divides power as a) legislative power, exercised by parliament and people at a referendum; b) executive power, exercised by the president; and c) judicial power, exercised by parliament through courts, tribunals and other institutions. The president and the parliament of the republic are elected by the people.

In Sri Lanka, even though sovereignty rests with the people and is inalienable, a relevant question is whether, ‘powers of government’, as exercised by parliament and the president, are fulfilling the desires of the people? In other words, has this indirect or representative democracy made Sri Lankan democracy ‘misrepresentative’?

A recent incident, which took place in Dahaiyagama junction in Anuradhapura, may help answer the question. Dr. Chamila Herath, attached to the Anuradhapura Teaching Hospital’s Cancer Treatment Unit, was attacked by a group of supporters of the United People’s Freedom Alliance (UPFA) on the night of August 30, 2012, at Dahaiyagama junction. According to the Anuradhapura police investigation, UPFA supporters, in a drunken state, blocking traffic on the main road, who had finished decorating the adjacent UPFA party propaganda office scheduled to be opened next day, were responsible for this attack.

Dr. Chamila Herath has no links to any political party. The matter is thus simply one of rule of law, which is paralyzed by ‘powers of government’ vested in the sovereignty of the people. This attack has been ultimately carried out by the ruling party of the country, appointed by the people of Sri Lanka to exercise their ‘powers of government’. The logical question is whether it is the ‘desire of the people’ to attack a non-political doctor while he was on his way to the hospital to respond to an emergency call?

Now, let us consider another recent incident in order to answer our question.  A few weeks ago, the head of the local authority in Tangalle, W.G. Sampath Chandrapushpa, accused of killing a British tourist and raping his girlfriend, has been reinstated to his party positions in SLFP, despite still being in jail. According to press reports, 32 year old Zaman and 23 years oldVictoriawere inSri Lankato celebrate Christmas and New Years together in the picturesque town of Tangalle. Chandarapushpa, who is an important cog in the Rajapaksa electoral machine in the Hambanthota District, and close confidante of MP Namal Rajapaksa, allegedly stabbed Zaman to death at The Nature Tangalle resort, while the victim attempted to settle a brawl between the politician and a local restaurant owner known as Ryan.

Zaman and Victoria were cut several times with broken bottles before they ran for their lives. Chandarapushpa and his men followed the couple with a T56 weapon and broken bottles in hand. They killed Zaman and stripped and raped Victoria mercilessly although she was bleeding from her head.

This inhuman behavior of Sri Lankans was widely reported all over the world.

Even though, Sri Lankans are world famous for their hospitality, these Sri Lankans killed and raped people who should have been treated with hospitality as foreigners. Moreover, this foreigner was killed while he was trying to help the Sri Lankan restaurant owner, who was not able to get any help from other Sri Lankan bystanders. Is this the desire of the people who elected this Chandrapushpa as chairman of Tangalle Pradeshiya sabaha? Did he represent the people who elected him to such a high position? If yes, is this the hospitality Sri Lankan people are known for worldwide?  Hasn’t the people’s sovereignty been misrepresented by Chandrapushpa, in his killing of a foreigner who came to help a Sri Lankan in trouble, and in his raping the foreigner’s girlfriend although she was bleeding from the head? What is the message people get when this Sri Lankan is reinstated by the ruling party of the country while still in jail.

On the other hand, how many ordinary people are attacked, and how many girls raped, by government party members, supporters, and thugs in the last few months? How many custodial deaths, like the case of Nimalaruban, have been taken place in this country?  Is it the desire of the Sri Lankan people, who have the sovereignty of this republic? The obvious answer is a resounding: No!

Therefore, our representative democracy has become ‘misrepresentative.’ We are victim to this indirect democracy. In this context, what can the Sri Lankan people do to recapture people’s power to determine their own fate make our democracy representative?

To reiterate, according to the 1978 constitution, sovereignty is in the people and is inalienable. Most of the time, we fail to notice the word ‘inalienable’ when we talk about sovereignty, something Jean Jacques Rousseau drew much attention to in the 18^th century. If sovereignty is inalienable, i.e. not transferable, can the Sri Lankan people exercise their ‘powers of government’ merely by voting? And, if merely voting is not allowing them to adequately exercise their sovereign powers, and make democracy representative, are not the people obliged to do more? In corollary, if, given that democracy has become misrepresentative, and the powers of government are being exercised contrary to what the people desire, have the Sri Lankan people lost ‘sovereignty?’ Are the Sri Lankan citizens, really citizens any more?

Such questions and arguments are the crux of the problem facing democracy, not only in Sri Lanka, but all over the world. And, they direct us to the idea of ‘participatory democracy’

In the modern world, participatory democracy emphasizes the need for individuals to become more engaged in the powers of government. But, this is distinct from direct democracy instruments, like referendums, which Sri Lankan executive president J.R. Jayewardene used for entirely undemocratic purpose, to extend the life of parliament in 1982. In today’s context, civil society movements have a key role in participatory democracy.

South Koreais a finest example for a country with a powerful civil society, having a large number of civil society organizations. According to People’s Solidarity for Participatory Democracy (PSPD) – the largest civil society movement in South Korea– “the truth realization of democracy could only be achieved by the people who ordinarily participate in politics and closely watch the abuse of power of the state and the corporate.” The PSPD was founded in 1994 by activists, scholars, and lawyers who had engaged in various democratic movements during the decades of military dictatorship. It has been working on institutionalization of civil participation in democracy, state power, and socio-economic reform.

One of the significant distinctions between these civil society movements and Sri Lankan NGO’s is principles of finance. Most of the South Korean civil society organizations operate primarily via membership fees. In contrast, almost all Sri Lankan NGO’s operate with international funds. Hence, this distinction creates a huge gap between Korean and Sri Lankan organizations. As a direct result of these financial principles, thousands of people gather around Korean organizations that are financially independent. While Sri Lankan NGO’s collapse due to lack of international funds, Korean civil society organizations are not mercy to the whims of international donors, due to a stable domestic financial base, and their independence from both government funds and that of private corporations.

Sri Lankan NGO’s suffer from a lack of solidarity in civil society. Rather than getting civil participation, Sri Lankan NGO’s attempt greater proximity to international donors in order to get funds. ‘Solidarity’ is the most common word among Korean civil society groups, and civil participation is an important feature in their activities. In PSPD, for example, the Center for Civil Education runs a Civil Academy for providing citizens with civil education on democracy, liberty and humanity. While people rally around Korean civil society organization for ‘issues’, Sri Lankan ‘civil society’ rallies around NGO’s for the international funds that can be feasted upon.

Korea was established in 1948 as a democracy, but the work of civil society didn’t end there. The several uprisings South Koreans have had against military dictators since, has further strengthened civil movements for democracy in the country. The Korean Democracy Foundation is a non-profit organization which was created with the legislation of the Korea Democracy Foundation Act. It was passed by the National Assembly with the belief that the ‘spirit of democracy movement’ should be extended, developed, and acknowledged as a critical factor in bringing, maintaining, and furthering democracy in South Korea. This foundation set up for the purpose of enhancing Korean democracy through a variety of projects aimed at inheriting the spirit of the movement.

Sri Lanka, in contrast, is a country that never had a significant struggle for democracy. South Korea adopted an American style of constitution in 1948,Sri Lanka adopted a British style of constitution, and both countries developed their alien democracy principles without having a prior social agreement for democracy. However, the South Koreans gained a lot of social understanding while fighting against military dictatorship, which resulted in an implied social agreement to have democracy. In the Sri Lankan context, to date, there has been no social agreement or major debate regarding democracy since 1931.

In 1953, Sri Lankan Prime Minister Dudley Senanayake resigned as a result of a ‘hartal’, mainly organized by the Lanka Sama Samaja Party. Although, it was a mass political action against the government, it cannot be considered as a civilian movement for democracy. Yet, the hartal provides evidence that Sri Lankans had a better democratic political culture at the time. Even though, about 10 demonstrators were killed in this hartal, there is no much commemoration either about this incident or people who died in this hartal.

On the contrary, South Korean people never forget their past struggles and commemorate as well as continue the spirit of struggles and solidarity. As an illustration, May 18^th Memorial Foundation is a non-profit organization in South Korea, established on August 30^th, 1994 by the surviving victims of the 1980 Gwangju Uprising, the victims’ families, and the citizens of Gwanju. This Foundation is working on numerous projects including organizing memorial events, disseminating information to the public, publishing relevant materials, building international solidarity and awarding The Gwangju Prize for HumanRights.

Democracy is not something that can be achieved merely from a constitution. There must be a social agreement to strive to greater and greater democracy. Even though, thousands upon thousands of Sri Lankans face tragedies akin to, or far worse than, Dr. Chamila Herath, none of the people understand this as a problem of democracy. As Sri Lankans, we have to upgrade our democracy not only by voting better and passing laws; we also have to change mind-sets through education about democracy in order for more and more Sri Lankan people to actively participate in real democracy.

*Suren Perera – Attorney at Law