Colombo Telegraph

Sri Lanka’s Inapt Constitution & Several National Problems

By S. Narapalasingam

Dr. S. Narapalasingam

‘Democratic Socialist’ Sri Lanka’s Inapt Constitution Denies National Unity, Lasting Peace, Rule of Law, Good Governance, Real Democracy and Sustained National Development

Recent revelations, particularly after the formation of the ‘national unity’ government in 2015 committed to ‘good governance’ indicate that the long-drawn-out ethnic problem is not the only national problem that has denied the environment for peaceful co-existence of ethnic majority and minority communities and steady national development that benefitted all, particularly the poor and under privileged citizens. The members of the ethnic minority Tamil community soon after independence lost the feeling of coexisting as equal sovereign citizens in the traditionally multi-ethnic island with the same rights and livelihood opportunities of those in the majority ethnic community.

The two main political parties, supported largely by the members of the ethnic majority community exploited the abiding ethnic majority and minority division in the contest for gaining countrywide governing power. Attempts by the main governing party to settle the ethnic problem that emerged after independence in 1948 were sabotaged by the rival party in the opposition for narrow political reason. The country paid a huge price for missing several opportunities in the past that would have saved the country from the huge losses incurred after the conflict intensified into a terrible civil war. Despite this deterioration, formulation and implementation of national policies continued to be influenced by this blatant racial difference. The programmes favourable mainly to the ethnic majority were implemented resolutely. The government’s decision-making process has also been influenced by the reluctance to accept the real democratic concept in which all communities and citizens in the sovereign country have equal rights.

The 13th Amendment to the present Constitution intended to settle the national problem has not been fully implemented imagining this would weaken the centralised governing system controlled by the political parties depending mainly on the support of the members of the ethnic majority community. This blatant division between the rights of ethnic majority and minority communities has influenced the prejudiced pattern of governance denying the latter the right to decide on matters concerning their security and well-being. In short, the inapt governing system has been unfavourable to safeguard the solidarity of all citizens regardless of their ethnicity and residing provinces. Parts of the relatively small island that were under different rulers for centuries came under one central government only after the British captured the entire island. The cultural difference between the upcountry and low-country Sinhalese did not cause problem with the over centralised governing system because of their identical mother-tongue and religion.

The Sinhala nationalists believe the unitary system that endows nationwide governing powers to political parties depending mainly on the votes of the ethnic majority is the safeguard against any move to territorial division of the island considered by them to be exclusively their homeland. The fact the ethnic composition of the population in the Northern and Eastern Provinces is significantly different from that of the rest of the island is considered as a ‘recent’ anomaly due to the arrival of immigrants from India. In advanced democratic countries, the fundamental rights of citizens are not denied even to those who acquired citizenship recently. In Sri Lanka’s case, unlike Tamil language the Sinhala language is not the mother tongue of any community in foreign countries. This factor too influences the claim of Sinhala nationalists that the entire island is the nation of the Sinhalese and others (non-Sinhalese) are the descendants of ancient immigrants. This view is also contrary to the real concept of democracy and equality of all citizens regardless of the century their ancestors arrived from different regions in neighbouring India!

Democracy in Sri Lanka focuses mainly on the right of all citizens to vote in the national and local elections. After the elections, the ways the elected governments have functioned since independence cannot be considered as even fair to those who elected their representatives in the governing parties. Generally, the power gained with their support is used for personal or some narrow gains. This corrupt system got firmly rooted with the attention of governments focused mainly on visibly destructive issues like the civil war also arising from nationally damaging policies. These provided opportunities to those anxious to exploit the inapt system for narrow and quick gains. The present high levels in bribery, corruption and fraud in the public sector reflect not only the weaknesses in the highly centralised governing system but also the anti-social behaviour of those in responsible positions. Accountability has also diminished furthering the opportunities for the misuse of public funds.

According to many political analysts, the present government’s performance in the second year (2016) has been disappointing in fulfilling the promises given in January 2015. These gave high hope of creating a new peaceful, prosperous and united Sri Lanka free from the past nationally damaging ways the governments functioned that served the few in powerful positions and their associates. The ground for damaging the concept of one unified nation emerged from the adoption of majoritarianism in over-centralised governing system. The power greedy egoistic politicians exploited the presence of about 60 million Tamils in Tamil Nadu alone (60,793,814 in 2001) to justify the Sinhala majority rule throughout their neighbouring small homeland. This senseless anti-Tamil feeling among a section of the Sinhala nationalists is not the way to secure eternal peace. The ethnic majority in Sri Lanka to relegate them into a small vulnerable community because of the presence of over 60 million Tamils in neighbouring Tamil Nadu is just a fantasy in the modern world.

The beginning of the breakup of sovereign Ceylon

At the time of independence no political party wanted a regional system of governance within unified Sri Lanka (then Ceylon). The then Tamil political leaders rejected strongly the suggestion to seek a federal system. This stand changed after the disappointing experience with the one-sided (majoritarian) centralised system that sidelined the ethnic minorities. The aggressive ways this discrimination was done led to the violent uprising that caused huge losses to all communities. The past bitter experiences should not be ignored in moving towards a nationally conducive governing system, fair to all communities. It is widely known S.W.R.D. Bandaranaike, who proposed first a federal system for Ceylon before independence, soon after independence desperate to defeat the governing party which he quitted for personal reason, promised the voters prior to the 1956 general election that if his party (SLFP) won the general election, Sinhala would become the only official language. As promised, Sinhala Only Language Act was enacted soon after winning the election. He was assassinated later when he reached an agreement on the language issue with the then Tamil political leader S.J.V Chelvanayagam (B-C Pact).

The architects of the then ‘Soulbury Constitution’ drafted in 1947 were not local power hungry politicians. Article 29 in this Constitution protecting the fundamental rights of the ethnic minorities was largely instrumental for all communities to accept the centralised (majoritarian) governing system. Prof. S. Ratnajeevan H. Hoole in his article, ‘The Donoughmore Heritage – Roll Back On Equality & The Challenge Of Identity Politics’ in Colombo Telegraph of February 2, 2017 has discussed effectively how the best part of our colonial heritage was annulled by indigenous political leaders eager to gain and hold on to centralised governing power. In an undeclared way, the ‘divide and rule’ strategy has been used to sustain the ethnically divisive governing system. This kind of rule by a domestic party in a sovereign nation is undemocratic and more damaging than similar move by foreign colonial rulers in their occupied countries.

The protection against denial of fundamental rights to ethnic minorities was in Article 29 of the Soulbury Constitution. Prof. Hoole in his analysis has cited Article 29 drawing particular attention to 29(2). To quote:

“(1) Subject to the provisions of this Order, Parliament shall have power to make laws for the peace, order and good government of the Island.
(2) No such law shall –
(a) prohibit or restrict the free exercise of any religion; or
(b) make persons of any community or religion liable to disabilities or restrictions to which persons of other communities or religions are not made liable; or
(c) confer on persons of any community or religion any privilege or advantage which is not conferred on persons of other communities or religions, or
(d) alter the constitution of any religious body except with the consent of the governing authority of that body, so, however, that in any case where a religious body is incorporated by law, no such alteration shall be made except at the request of the governing authority of that body:

That is, no law could confer an advantage or impose a disadvantage unless it was done to all communities. In addition to this guarantee was the right to appeal to the Privy Council”. The Council located in London had no Ceylonese members and was also one reason for the ethnic minority Tamils to accept the Solbury Constitution.

This judicial system ended, “when S. Kodeswaran, a government employee adversely affected by the Official Language Act of 1956, challenged the government claiming that in passing that Act, it had violated Section 29 of the constitution, Judge (later Justice) O.L. de Krester agreed. The Government took up the matter at the Supreme Court which, without considering the substantive constitutional issue, ruled that the Government could not be sued. Kodeswaran appealed to the Privy Council which found with him and directed the Supreme Court to rule on the constitutional question (72 New Law Reports, p.337). That never happened because the Supreme Court was hesitant to rule on the constitutionality of the Official Language Act and Mrs. Bandaranaike, immediately upon coming to power in 1970, passed Act No. 44 of 1971 which abolished appeals to the Privy Council.”

After gaining independence in 1948, Sri Lanka (then Ceylon) failed to progress speedily like many other multi-ethnic sovereign countries not only because of the adoption of inapt governing system but also due to the egoism of many politicians. Thus, Sri Lanka to avoid the past blunders in governance and to be truly democratic and socialist without any racial discrimination not only a new constitution but also real patriotic selfless politicians are needed.

Objection to current move to adopt a new Constitution

Politicians, in the Joint Opposition (JO) backing the former President Mahinda Rajapaksa who failed to win the January 2015 Presidential election and some in the SLFP, who are members of the present ‘national unity’ government are against drafting a new constitution preferring minor reforms that do not require country-wide referendum. According to the report in the Daily Mirror of 16 February 2017, MP Bandula Gunawardane one of the JO MPs who resigned from the Sub Committees, told a media briefing that they officially rejected the reports produced by the 6 Sub Committees attached to the Constitutional Assembly. “It has been proved that these Sub Committee reports would directly affect the unitary nature of the state and it would result in developing federalism and separatism in the country.”

P.K. Balachandran in his article on the new constitution making process in Sri Lanka (New Indian Express 16 February 2017) has revealed the current muddled situation with the opposing views of the two main parties in the present national unity government. SLFP members in the Joint Opposition (JO) have taken a strong stand against a new constitution that weakens the ‘unitary’ system. This kind of negative politics preventing the main governing party credit for settling the national issue is not new.

To quote: “While the UNP wants a brand new constitution, fundamentally different from the existing one, the SLFP (both the factions) want only a few amendments to the existing one. While the UNP feels that the constitution should go through a Referendum, the SLFP feels that the changes should not be so fundamental that a referendum has to be conducted… . While wanting an altogether new constitution, the UNP is not in a hurry to bring it about given the complexity of the political situation.” Foreign Minister Mangala Samaraweera is reported to have said: ‘We believe in following the dictum Festina Lente (making haste slowly)’.

Former President Chandrika Kumaratunga’s suggestions

Former President Chandrika Kumaratunga is reported to have wanted SLFP to take a ‘clean break’ from the Joint Opposition faction led by former President Mahinda Rajapaksa. She also reported to have said, the SLFP should break with “crooks and murderers” and go it alone. (Reference Dharisha Bastians in the Daily FT 16 February 2017). She insisted that the SLFP governing in coalition with the UNP was committed to the process to draft a new constitution, despite recent statements by SLFP ministers creating uncertainty.

Her earlier move to introduce a new constitution aimed at resolving peacefully the national problem was opposed by the UNP, the then main opposition party led by the present Prime Minister. This kind of negative politics in sovereign Sri Lanka seems to be continuing, despite the continuing denial of national unity, real democracy, wellbeing of all citizens and a promising future for the children. No sensible Sri Lankan expects their children’s future to depend on money earned illegally.

The vital need to enlighten the citizens misinformed by power greedy politicians has been conveyed recently by former President Chandrika Kumaratunga, who now heads the Office for National Unity and Reconciliation (ONUR). Journalist Dharisha Bastians has reported (Daily FT 15 February 2017) that on 14 February the former President Chandrika Kumaratunga announced the launching of a “Hearts and Minds” campaign to mobilise support for a new Constitution. The success of this campaign depends crucially on the active involvement of leading members of civil society organizations. All sensible Sri Lankans will agree with this suggestion given the narrow mindset of some egoistic politicians.

“The campaign is expected to be modelled along the lines of her own Sudu Nelum Movement initiative in 1995, which sought to build bridges between the Sinhalese and Tamil communities and create public awareness about the necessity for power sharing and building an inclusive society”. Former President Kumaratunga is also reported to have told Foreign Correspondents that such a peace movement was the “main requirement” to ensure victory at a referendum on a new constitution.

The fact that the highly corrupt politicians continue to get the support of the people reveals the need for opening their minds. This has to be done by honourable members of civil (not political) organisations in the country. This is a challenge that cannot be ignored in the light of the promises given during the last Presidential campaign of the common candidate (current President Maithripala Sirisena) and the hopeful expectation of those who voted enthusiastically for vital changes in the generally weak governing system resulting in the emergence of ‘national unity and good governance’ government in 2015. For the first time, the two main political parties are equal partners in the present coalition government. Its governing term ends in 2020. The progress towards settlement of the national problems (as stated earlier the ethnic issue is not the only national problem confronting the anxious citizens seeking a better future for them and their children) has so far been dreary, particularly with no clear sign of progress in curtailing corruption and extravagant spending of public funds plunging the country into a debt trap. Foreign loans for financing ‘white elephant’ projects will be heavy burden on the poor country. The high level corruption in the public sector is already hindering the use of public funds for financing programmes formulated to cater to the real needs of the nation.

Widespread corruption and lack of rule of law

Corruption in the public sector is another hindrance to social wellbeing and sustained economic development. This also warrants a good governing system under a new constitution devoid of the fundamental weaknesses in the present one that does not serve fairly the entire multi-ethnic nation. The island’s imperfect political culture is also an impediment to building a prosperous nation. Promises given to voters before elections are not fulfilled later, if these are considered difficult or unfavourable to exploit the power gained dishonestly for some narrow purpose. False promises given to voters before the elections are intrinsic to the domestic democratic system. The irresponsible spending of public funds and alarming rise in corruption in the public sector indicate the weaknesses in both the governing system and the quality of elected politicians supposed to function responsibly for the benefit of the residents in their constituencies and also towards social and economic advancement of the entire nation.

The misuse of large amount of public funds annually is also shocking but seems to be of no concern to many politicians interested in gaining and holding on to power for personal and other narrow gains, depriving better living conditions to the poor residents. It seems the corrupt politicians also seek power deceitfully for their own benefit. Improving the living standards of the poor people in their electorates and wide national matters such as unity, peaceful environment and sustainable socio-economic development are not of the same concern. Deception is intrinsic to the country’s political culture. The constitutions of the Republic were also formulated by narrow-minded politicians interested in seizing power mainly for narrow short-term benefits, ignoring the fundamentals essential for the progress of the entire nation and well-being of present and future generations.

The long-lasting constitutions of democratic countries were not drafted solely by power-seeking myopic politicians. The apparent loyalty of narrow-minded politicians to Sinhala nationalism is also helping to hold on to the nationally divisive system that has helped the avaricious politicians to exploit the power of the people gained through the elections for some narrow benefits. Unlike in India there were no Ambedkars in drafting the constitutions of the Republic of Sri Lanka. Indian nationalism has been widespread and not restricted either communally or regionally.

According to the Global Corruption Perception Index compiled by Transparency International on a scale from 0 (perceived to be highly corrupt) to 100 (perceived to be very pure), Sri Lanka with the score of 40 points was placed in the 79th position among 176 countries in 2012. Sri Lanka’s score for 2016 fell to 36 and was ranked 95th out of 176 countries. In the previous year, Sri Lanka with the score of 37 was ranked 83rd among 168 countries. This shows the culture of corruption has got firmly rooted and it remains intact even after the emergence of good governance.

Dr. Lionel Bopage’s excellent article ‘Good Governance and Corruption’ in the Colombo Telegraph of February 1, 2017 reveals the importance of introducing fundamental changes to the present governing and judicial systems. Although the whole article is relevant to grasp the gravity of the intricate problems, only the following two paragraphs are cited here.

“According to recent reports there are some 750,000 court cases pending in the lower courts of the Sri Lankan judiciary. The regime or its judicial bureaucracy do not appear to be interested in taking measures to expedite these cases. Legal redress is also expensive. There are many cases of land disputes running close to half a century and suspects are held with no charges for many years under the Prevention of Terrorism Act. One can say that this is a corrupt system designed to make more money at the expense of the poor. Judicial corruption has also placed the regime in an uncomfortable situation internationally. At the UNHRC, the regime conceded that the people have lost trust and confidence in the justice system. Thus the Sri Lankan regime had to agree to set up a judicial mechanism with international dimension to try serious crimes committed against humanity.”

“It is safe to say that corruption has become a way of life in Sri Lanka, not only at the level of politicians and bureaucrats, but also at the grassroots level. Therefore, the political will at the highest levels of government to rectify the issues has been almost non-existent. Whenever charges of corruption have been laid, more often than not the cases do not succeed. In this environment, blatant and grand scale corruption and financial crimes carried out with impunity under the previous regime, does not only continue, but has reached new heights under the new dispensation.”

Dr. W. A. Wijewardene, a former Deputy Governor of Central Bank of Sri Lanka in his article ‘The Good Governance Government Should Not Ignore Sri Lanka’s Slipping Down On The World Rule Of Law Index’ (Colombo Telegraph February 6, 2017)has exposed another major weakness in Sri Lanka’s governing system which is also a national problem that poses a major threat to the future of the sovereign island as a real democratic, law-abiding and humane nation without any form of racial, caste or religious discrimination.

The eminent analyst in his article has mentioned: “Since the time Sri Lanka was included in the World Rule of Law Index by the Washington DC-based World Justice Project or WJC in 2012, it had never scored high or ranked high among other nations. It had been a poor observer of the Rule of Law throughout, sparking wide criticism from those within as well as from those outside the country.”

“In this background, the good governance government elected to power in 2015 was expected to fix it as a matter of urgency and improve the country’s track record of observing the Rule of Law. But the information released by WJP for 2015 and 2016 reveals the opposite. It shows that Sri Lanka’s overall score on the Rule of Law, which had been declining since 2012, has further fallen in the two years under reference. Against this background, its ranking too among the world nations who have been indexed under the Rule of Law has slipped by several notches. This is an ominous development and the good governance government could ignore it only to its peril.”

In ‘Ceylon Today’(12 February 2017) Ravi Ladduwahetty reported the recent interview with Malik Samarawickrema, the UNP chairman and current Minister of Strategic Development and International Trade in which he conceded that there was rampant corruption in the present ‘Good Governance’ government. The Minister said: “Yes, it is true that there is rampant corruption in the government even now as we inherited a corrupt system from the last administration and practices of that regime were yet there.” He also said in the interview, corruption was a serious issue which threatened the country’s democracy and stifles economic growth and that both President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe were intent on tackling the issue.

Pot calling the kettle Black

Former President Mahinda Rajapaksa addressing a political rally in Nugegoda on 27 January 2017 accused the present ‘Good Governance’ national unity government of corruption and vowed to recover stolen State assets when he regained the political power lost in January 2015. He also said the present Government was guilty of treason accusing them of selling off state institutions, property and harbours to foreigners. (Source: ‘MR slams Govt. on corruption’ Daily FT By Dharisha Bastians

To quote further the corruption charges made against the present government by members of the current Joint Opposition at the rally: “Speaker after speaker at the Joint Opposition rally, most of them out on bail or under investigation for fraud and misuse of state property themselves, levelled major charges of corruption against the ruling coalition.”

“Former Minister Johnston Fernando, one of those arrested and released on bail on corruption charges, took direct aim at Prime Minister Ranil Wickremesinghe. He claimed the Prime Minister had brought the Central Bank under the purview of his Ministry just in time to execute the bond scam.”

Conclusion

All honest persons know the level of corruption remains high even after change of government in 2015. President Maithripala Sirisena has announced this ‘menace’ will soon be eradicated. The prolonged civil war which siphoned considerable public funds as a matter of urgency also tainted the financial management system. Even after the end of the prolonged war, the past government functioned lavishly capitalising the war victory. The lavish spending for the benefit of privileged few has not stopped fully. Many national problems of sovereign Sri Lanka have been ignored in the past under the cover of threat to national security, particularly during the height of the civil war. The protracted war ended in 2009. The corrupt deceptive system contrary to good governance, rule of law and sustained development has become increasingly unhelpful to the wellbeing of majority of Sri Lankans. The country is now facing many national problems and this is not the time to indulge in narrow party politics. At the time of independence in 1948, Sri Lanka was far ahead of countries like Singapore but fell behind them soon because of divisive politics.
The once promising country should not miss the rare opportunity gained in 2015 to advance uninterruptedly along the correct path to improve the living conditions of all citizens throughout the island.

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